27 March, 2008

Selwyn N. A. Nicol

(culled from LAWCLA NEWS)

Prisoners Deserve Voting Right in Sierra Leone

Electioneering was the pre-occupation of a lot of Sierra Leoneans during the months of August and September 2007 respectively. It was the fervent prayer of many Sierra Leoneans that the elections would be free from violence, fair and credible. The anxiety and fuss which greeted this election has disappeared. What struck me during this period was that some Sierra Leoneans were either willfully disenfranchised or the authorities blinded their eyes to the fact that these individuals have their civic right to vote. The individuals that I am referring to are those held in remand prisons and police cells all over the country awaiting either acquittal or conviction.

I have the strong conviction that it was wrong for these sets of prisoners to have been denied their sacrosanct civic right to vote. The Act in Sierra Leone which disenfranchises prisoners is The Electoral Act; 2002. This act states in section 7(d) that: "No person shall be registered as an elector or, having been registered as such, shall be entitled to vote at any election if he is serving a sentence of imprisonment.”

It is abundantly clear from the wording of this act that it did not in any shape or form contemplate the encompassment of detainees held in remand and police cells as they are not serving a term of imprisonment. Putting it in a very simple expression, detainees in remand and police cells have the right to vote.

I think this is the rightful time that the authorities have to rethink this issue as individuals who are held in remand are not serving a sentence of imprisonment as they have not been convicted. Britain has realized this and in 2000 passed the ‘Representation of the Peoples’ Act’ which permits those held in remand to vote.

I would further like to tread on a very controversial subject which would provoke heated comments, and possibly lead to the piloting of a new act that would lead to the amendment of section 7(d) of The Electoral Act 2002 in Sierra Leone, which would ultimately lead to prisoners who have been sentenced to a term of imprisonment being permitted to vote. In some countries convicted prisoners have been given the opportunity to vote without any restriction attached. It would be imperative that I mention these countries such as Sweden, Denmark, South Africa, Spain and Switzerland.

For countries like Australia and New Zealand, the determinative factor which permits one to vote is the length of sentence imposed. So an individual who is serving life imprisonment would not be allowed to vote whilst those serving very short sentences would be permitted.

There are several salient reasons I would like to press forward to support the view why it would be significant for the law which prevents prisoners from voting to be amended to permit them to enjoy their right to vote. But before doing so, I would like to advance the points put forward by those who are opposed to prisoners' voting, which I have found out to be highly opinionated.

One of the major reasons, advanced by opponents of this school of thought, is that once an individual has been sentence to a term of imprisonment, he immediately suffers "civic death," meaning he looses all civic rights which he enjoyed in the past and his liberty and fundamental rights are suddenly affected. This is one of the punitive actions that are meted towards him as a result of him or her breaking the law and he/she must bear the consequence of his/her own action.

By denying prisoners various rights, including the right to movement, conjugal right and the right to vote, serve as a means of deterring future offenders that by going to prison they would be restricted in enjoying these rights and thus reduce or prevent the society from being crime-ridden.

It is submitted that these arguments are flawed with many patent weaknesses and unavoidably exposes itself to a barrage of criticisms. The first argument made by this opponent disregards the fact that prisoners are part and parcel of the Sierra Leone society. I must hasten to say that they are citizens of this country and it is a fact that we cannot avoid. We cannot just lock them up and forget about them. They have a right to personhood (the right to be recognized as human beings); this view was loudly echoed in the South African seminal case of August & Ano v. The Electoral Commissioner and others, 1999 (3) SA 1 (CC), Para, 17. The South African Constitutional Court gave each class of prisoners the right to vote. The Court stated that: The vote of each and every citizen is a badge of dignity and personhood.

Secondly, the term prison has fallen into disuse in many countries. Now it is euphemistically referred to as a house of correction or a correctional institution, this connotes the idea that prison is no longer a place that should be deemed as an institution to punish offenders and at the end of the day, they become traumatized and bitter towards society but rather it exists as an institution to reform and rehabilitate offenders so that when they are out, they would become good citizens. Because a lot of people have clung to the perception that prison is an institution where prisoners are sent for punishment. Unsurprisingly, the end product of this notion is that Sierra Leones' prisons are overcrowded, unpalatable meals being served to inmates, poor health facilities, unclean environment, lack of beddings and maltreatment by Prison Officers. By allowing prisoners to vote, it would help to draw the attention of the authorities to address the welfare of the inmates and ensure that they are properly rehabilitated so that they can fit into society when they are released. It has been established that the vast majority of people who are sent to prison in Sierra Leone belong to the down trodden class, having found themselves to be social dropouts unable to climb the social ladder because they are illiterate or half baked and unemployed. They emerged most times from poverty stricken and sub cultural areas like Kroo Bay, Mabela, Surpitt, King Jimmy, Kanikay, Government Wharf, Old Wharf, etc. By allowing them to vote, it makes them to feel that they belong to society and shape their psyche positively so that they can contribute meaningfully to society.

It could also be of immense benefit to society as a whole, if prisoners are allowed to vote so that they could influence the formation of major state policies like combating poverty, promoting good governance, employment, improved working conditions, creating educational opportunities, housing facilities, energy supply etc., in a country where their children and family members are living and the society that they would eventually be released into. By voting it allows them to showcase the glaring ineptitude of the authorities to address these issues which to some extent influence prisoners in the commission of offences.

By preventing prisoners from voting, it undermines our toddling democracy and under Section 5(1) of the 1991 Constitution of Sierra Leone, the grund norm of this country states that:

"The Republic of Sierra Leone shall be a state based on the principles of Freedom, Democracy and Justice".

In the Canadian case of Suave v Canada (Chief Electoral Officer); McCorrister v A-G of Canada and others 2002 SCC 68 Para 34 in which the Supreme Court of Canada stated in very clear terms that "The right of all citizens to vote, regardless of virtue or mental ability or other distinguishing features underpins the legitimacy of Canadian democracy and Parliament's claim to power. A government that restricts the franchise to a select portion of citizens is a government that weakens its ability to function as the legitimate representative of the excluded citizens, jeopardizes its claim to representative democracy and erodes the basis of its right to convict and punish lawbreakers.”

This line of view was toed in the European Court Of Human Rights in the case of Hirst v. UK (2005)19 BHRC 546 at 571 showing how the prevention of prisoners voting is a complete negation of the spirit of democracy.

Perhaps the last straw to break the camel's back is the fact that the Sierra Leone constitution, the supreme law of this country – has no portion within it that precludes prisoners from voting but rather prevents prisoners from contesting for political offices such as becoming a parliamentarian or a president. Under Section 171(15) of the constitution, it is stated that any law which is inconsistent with the provisions of the constitution is void and has no effect.

The constitution has created in section 25, protection of freedom of expression. Expression is not only limited to writing and the making of speeches but also includes body language, sign language and also voting. By voting one expresses his political feelings, aspirations and opinions about a political candidate, government or a particular policy. Thus, by preventing a prisoner from voting, it is a direct and slapdash obstruction of his sacred constitutional right to expression.

Under the limitation clause in section 25(2)(A)&(B) of the 1991 Constitution, the only point in time in which one could be restricted in the enjoyment of this said right is in the interest of national security, public order, public safety, public morality, public health, for the purpose of prevention of injury to someone's reputation, to maintain confidentiality, maintaining the independence and the authority of the court, to control and regulate the telephone, wireless broadcasting, post, telecommunication, television, public exhibition or public entertainment. By allowing a prisoner to vote I can safely say that it does not have any effect on the provisions of the limitation clause which I have stated above.

Whatever one may say, it is my candid opinion that this issue of allowing prisoners to vote must be subject to a constitutional test case, the authorities must approach this issue with a non-judgmental attitude, ensuring that prisoners are allowed to vote: and have a say in the development of this country that belongs to all of us.

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