AN UNJUSTIFIABLE RESTRICTION IN SECTION 13(b) OF THE ELECTION DECREE 1996

PRISONERS’ RIGHT TO VOTE: AN UNJUSTIFIABLE RESTRICTION IN SECTION 13(b) OF THE ELECTION DECREE 1996?

BY SHERIFFO JOBARTEH?

?Section 13(b) of the Election Act which serves as a chokepoint on the right to vote of prisoners stated that – ‘no person shall be entitled to have his (her) name entered or retained on a register of vote if he is (b) serving a sentence of imprisonment. This is the issue I want to express against. I wish to advance reasons for the revision of the law and enjoyment of the right to vote by prisoners.??

The right to vote is a constitutional right – such right under Constitutions the world over is inspired by the leading text on human rights or as referred to by some, the ‘parent document’ – the Universal Declaration of Human Rights. Article 21 of it set out that, ‘everyone has the right to take part in the government of his (her) country, directly or through freely chosen representatives’, that, ‘the will of the people shall be the basis of the authority of government; this will shall be expressed in periodic and genuine elections which shall be by universal and equal suffrage and shall be held by secret vote or by equivalent free voting procedures’. Under the 1997 Constitution of the Gambia, section 392captured the right to vote, that;?

?(1) Every citizen of The Gambia being of eighteen years or older and sound mind shall have the right to vote for the purpose of elections of a President and members of the National Assembly and shall be entitled to be registered as a voter in a National Assembly constituency for that purpose.??

(2) Every citizen of The Gambia who is a registered voter shall be entitled to vote in a referendum held in accordance with this Constitution or any other law.??

(3) Every citizen of The Gambia being of the age of eighteen years or older and of sound mind shall be entitled, in accordance with the provisions of this Chapter and any Act of the National Assembly providing for such elections, to vote in elections for local government authorities and traditional rulers in the area in which he or she is ordinarily resident.??

In support of the above, both the International Covenant of Civil and Political Rights and the African Charter of Human and Peoples Rights provide and oblige the States to take both legislative and administrative measures to give practical expression to the rights under it which includes the right to vote in Article 25 and 13 respectively – which Gambia has signed and ratified. Section 263 of the Constitution solidifies the argument by echoing that, ‘every citizen of the Gambia of full age and capacity shall have the right without unreasonable restriction; to take part in the conduct of public affairs, directly or through freely chosen representatives; to vote and be stand for elections at genuine periodic elections for public office…’– these two text express the same thing saved for the possible restriction contemplated under section 26 of the Constitution that a law may provide – when it states, ‘without unreasonable restrictions’. A gaze at other laws that regulate the right to vote, elections, prisons and prisoners informs that it is section 13(b) of the Election Decree that provides for such restriction contemplated under s.26. Hence, the reason for the bold recommendation under the 2023 State of Human Rights Report by the National Human Rights Commission of the Gambia was made which is timely and required to be implemented by the Government. That, prisoners and those under detention should vote4 – the State through the Independent Electoral Commission should facilitate such by amending the law to align with international best practices.??

In its 2005 decision, the EU Court of Human Rights in Hirst v UK (No,2)5 echoed the wisdom that;??

The rights guaranteed under Article 3 of Protocol No. 1 were crucial to establishing and maintaining the foundations of an effective and meaningful democracy governed by the rule of law and also that the right to vote was a right and not a privilege.?

?The Court went on to say;?

?‘Prisoners generally continued to enjoy all the fundamental rights and freedoms guaranteed under the Convention, except for the right to liberty, where lawfully imposed detention expressly fell within the scope of Article 5’6?

The Court noted the importance of the right to vote for everyone, which includes prisoners. Some legislations were struck down by Courts across the globe barring prisoners from voting – a case in point is Sauve v Canada by the Supreme Court of Canada. The Court held, by declaring section 51(e)of the Canada Elections Act 1985, that, denying every person imprisoned in a correctional institution serving a sentence of two or more years was unconstitutional and infringed on Articles 1 and 3 of the Charter. The Court in Hist v UK7 further noted an important point that the majority in Sauve relied on – that is;?

“The majority opinion given by McLachlin CJ considered that the right to vote was fundamental to their democracy and the rule of law and could not be lightly set aside. Limits on this right required not deference, but careful examination. The majority found that the Government had failed to identify the particular problems that required denying the right to vote and that the measure did not satisfy the proportionality test, as the Government had failed to establish a rational connection between the denial of the right to vote and its stated objectives. As regards the objective of promoting civic responsibility and respect for the law, denying penitentiary inmates the right to vote was more likely to send messages that undermined respect for the law and democracy than messages that enhanced those values. The legitimacy of the law and the obligation to obey the law flowed directly from the right of every citizen to vote. To deny prisoners the right to vote was to lose an important means of teaching them democratic values and social responsibility ran counter to democratic principles of inclusiveness, equality, and citizen participation and was inconsistent with the respect for the dignity of every person that lay at the heart of Canadian democracy and the Charter.”?

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This is particularly important as it highlights the democratic and rule of law perspective of the right to vote – and places it above unreasonable restriction and other reasons to be advanced in support of a restriction. The denial or blanket ban or restriction on the exercise and enjoyment of the rights of prisoners to vote should be justifiable, proportionate and reasonable in a democratic society for the State to adopt the same.??

?Named after a man who served and left prison to become the first black President of South Africa, the UN Nelson Mandela Rules for the Treatment of Prisoners adopted in 2015 by UNGA set out in Rules 5 and 88(1) that;?

“The prison regime should seek to minimize any differences between prison life and life at liberty that tend to lessen the responsibility of the prisoners”8?

?“The treatment of prisoners should emphasize not their exclusion from the community but their continuing part in it”.9?

The NHRC in its 2020 report after a monitoring visit as part of their mandate to the Prison or detention facilities echoed that;?

“A key legal instrument which stipulates the rights of prisoners is the Convention against Torture and Other Cruel Inhuman or Degrading Treatment or Punishment (CAT), ratified by The Gambia in September 2018. Other standards which apply for the protection of all persons under any form of detention or imprisonment are the “UN Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment” and the “UN Standard Minimum Rules for the Treatment of Prisoners (the Nelson Mandela Rules)”10?

Thus, the NHRC strengthened the argument that rights and principles recognized under the Mandela Rules should be given life in the Gambia – this is by facilitating the enjoyment and exercise of the right to vote by those under pre-trial or trial detention and convicted and sentenced prisoners which will enable them to be part of the community and be continuous members. It will also facilitate their integration back into society as the basis of rehabilitation. By so doing, the Gambia will be adhering to and implementing its international obligation – implementing the 2023 recommendation of its own established National Human Rights Commission and giving force to the rule of law, democracy and restoring its lost glory of being a bastion of human rights and democracy in African and beyond.??

World Prison Brief’s latest reports revealed that ‘11.5 million people are held in penal institutions throughout the world’11 either as pre-trial detainees/remand prisoners or convicted and sentenced. A leading online Media house in the Gambia, The Fatu Network further broke down the data and said: “Its report showed that out of the 1,799 prisoners in Gambia’s correctional facilities, 1,198 are foreign nationals”12 – this means, 601 are nationals. This statistic is important because continuous unreasonable deprivation of such a huge number of citizen prisoners to vote will continuously constitute a violation of their right guaranteed under the 1997 Constitution and international legal instruments highlighted herein, especially considering the unreasonable restriction in section 13(b) of the Election Decree 1996.???

At the continental level, the Constitutional Court of South Africa held in August and Another vs Electoral Commission and Others that, IEC should facilitate all logistical arrangements to enable the enjoyment of the right to vote by prisoners13. The exercise of the right should not be frustrated. Restrictions are followed by amendments to the laws, but all must be justified. The NHRC further recommends revision of laws as other countries did. This is what the Commission said;?

“As other democratic nations including Canada, South Africa, and certain parts of the US, transition to enable prisoners to vote, it would be prudent to revise the electoral laws to promote voter education and the exercise of voting rights in detention facilities, or restoration of these rights upon release”14?

?This is the call of this paper to have the IEC initiate the amendment of electoral law to enable the enjoyment and exercise of the right to vote by prisoners and those detained. On another progressive development, the Supreme Court of Ghana pronounced as unconstitutional the restriction on registration of those imprisoned in Ahumah Ocansey v The Electoral Commission and Another, (2010) that;?

“Rights may only be limited if the infringement of the right achieves a constitutionally valid purpose, and the means chosen are reasonably and demonstrably justifiable”15?

The Court held that it was not persuaded by the reasons advanced for the restriction on the prisoners to vote. So, it asked the IEC to facilitate registration and voting of prisoners and this was actualized in the 2016 and 2020 Presidential elections. Prisoners were allowed to vote in both elections. Prisoners were allowed to vote in the 2017 elections in Kenya as well after a court battle before the 2010 Constitutional referendum that allowed the court to hold prisoners of 18 years have the right to vote.??

Additionally, 72,000 prisoners were allowed to vote in Nigeria in the 2019 general election after a court battle16. The matter was appealed but the Court still maintained the decision of the Benin, Edo State High Court. In another part of Africa, the Kampala High Court in Uganda also held that prisoners or those in the diaspora have a right and should be allowed to vote17. Countries like Mozambique, Zambia and Botswana all have Courts or Human Rights institutions stressing the need to allow prisoners to vote or recommend the same. The Supreme Court of the Gambia also held that Gambians in the diaspora should vote because they have such rights. This was in the case of Bakary Bunja Dabo & 4 Ors v IEC, where the Court specifically stated;?

“pursuant to section 39 of the Constitution, every Gambian, including those residing outside the jurisdiction, is entitled to be registered and to vote in an election to the offices of President, members of the National Assembly, for local government offices and traditional rulers as well as in referenda”18?

This decision has little connection with the purpose of the paper, but it is important to highlight because there could be a potential challenge before the Supreme Court for the right of prisoners to vote since the Human Rights Commission recommends for same.??

On this score, since the Elections Act is given force by the Constitution, it cannot stifle in a blanket manner the exercise of a right guaranteed and protected by the Constitution. Doing so in an unreasonable, unjustifiable and discriminatory manner through the Act should be discouraged henceforth and all efforts must lead to the revision of the law to allow for the rule of law and participatory democracy to reign.??

Most important is that all other rights under the 1997 Constitution are enjoyed by the prisoners saved for the right to liberty, why not the right to vote? Right to health, education, practice and manifest religion and a host of others. All these rights are enjoyed and exercised by prisoners – so shall the right to vote as well.??

Conclusion?

In light of the National Human Rights Commission’s report and recommendation for revision of the Election Act to allow prisoners to vote – an international obligation of the government of the Gambia to respect and promote rights and judicial pronouncement from sister Courts in other jurisdictions both in and out of Africa and the rationale for imprisonment, there is a need for the IEC to do the following;?

1. To revise the Election Act to allow for registration of and exercise of the right to vote of prisoners and those in detention centers across all prisons in Gambia.??

1. To put all resources together to facilitate the enjoyment of the rights of prisoners – that is by allocating both material and personal resources to achieve that.??

Lastly, civil society organizations in the Gambia are encouraged to consider public interest litigation to challenge the constitutionality of section 13(b) of the Election Act that put a restriction on the right to vote of prisoners in The Gambia. This should be pursued if all possible options fail with the government and IEC from having them revised, facilitating and allowing prisoners to vote. As other countries have done, the Gambia needs to too. ?

There is an urgent need to revise the Election Act of the Gambia.??