The Prison Voter Registration Exercise: Observations and Recommendations

KITUO LOGO with Legal Advice Centre

The genesis of the push for voting rights of prisoners began soon after the promulgation of the Constitution in 2010 where in a historic judgement; the Court held that prisoners had the right to vote in the referendum.

As of April, 2016 Kenya had well over 56,000 prisoners most of whom are eligible to be registered as voters. When the IEBC began the voter registration exercise in the year 2012, its main target was to register 18 million Kenyans. But by the end of the exercise on 19th December 2012, they had barely reached 15 million despite the heavy campaign for people to go out and get registered.

This year, the push for registration of the prisoners was spearheaded by Kituo Cha Sheria. A letter was issued on the 25th of January to the IEBC after it was reported by various media outlets that the IEBC had no intention of extending the Voter registration exercise to remandees and the convicted. Furthermore, the IEBC   had not gazetted 118 prison facilities as polling stations for elections and voting. The push for consideration of the prisoners’ voter rights was largely premised on the Constitution.

Article 38 of the Constitution of Kenya provides:

  1. Every citizen is free to make political choices, which includes the right—

-to form, or participate in forming, a political party;

-to participate in the activities of, or recruit members for, a political party; or

-to campaign for a political party or cause.

  1. Every citizen has the right to free, fair and regular elections based on universal suffrage and the free expression of the will of the electors for—

-any elective public body or office established under this Constitution; or

-any office  of any political party of which the citizen is a member.

  1. Every adult citizen has the right, without unreasonable restrictions—

-to be registered as a voter;

-to vote by secret ballot in any election or referendum; and

-to be a candidate for public office, or office within a political party of which  the citizen is  a member and, if elected, to hold office.

 It is through this push that the IEBC together with stakeholders such as The National Registration Bureau (NRB) and the Kenya Prisons Service began the process of prison voter registration.

Kituo was able to monitor the week long activity through our extensive Prison Justice Paralegal network ranging from Kodiaga prison in Kisumu, Kakamega Main Prison, Nyeri (King’ong’o) Prison, Meru Prison and at the Coast where we had paralegals reporting from King’orani, Kwale and Shimo La Tewa Prisons.

All in all the exercise ran smoothly. It is in this regard that we, as Kituo wish to commend the government through the IEBC on taking progressive steps towards facilitating the registration of prisoners as voters. However there were some pertinent areas that the stakeholders   involved fell short and which we feel should be publicly addressed.

For instance, there were several instances whereby prisoners who did not have proper Identification Cards were not registered as voters. This left out a large number of potential voters who had other government-issued documents like waiting cards which ideally should suffice as identification and proof of application for ID. This was largely the responsibility of the NRB (National Registration Bureau).

Secondly, the question of which electoral positions the prisoners could vote for came into question. Our position as Kituo is that Prisoners should be eligible to vote for all six positions and not be restricted to any specific vote- the presidential vote.

Finally, there was poor communication between the IEBC, the Prisons Service and the prisons/inmates as to the directive that they would be eligible for voter registration.

In some of our justice centres, no communication had been delivered on the intended exercise. We had to follow up with IEBC regional offices in some areas in order to find out if they had issued such information to the prisons.

It would be important to have the prisons service on board as they have a great role to play in terms of making administrative arrangements that would allow the prisoners cast their votes.

It is in light of the above that Kituo believes that it is imperative that the IEBC must guarantee the participation of prisoners not only upon the prompting of civil society but independently as an institution. A lesson to be learnt from this exercise is that other stakeholders need to be actively involved in time in order to ensure maximum results when it comes to voter registration in Kenyan Prisons.

We at Kituo believe this can only be ensured in the future through a tripartite action plan that includes;

  • Effective voter registration in prisons across the country. Policy guidelines must be put in place for future prisoner voter registration and prisoner information in training curriculums/manuals. This goes hand in hand with accreditation of election officials from gazetted prison centres.
  • Stake holder involvement prior to elections and even post elections. Such factors include The Kenya Prisons Service, Registrar of persons, Civil Society et cetera.
  • Effective communication mechanism regarding access to voter information, documentation and mode of voting and in which polling centres.

The reading of the provisions of article 21 of the constitution shows clearly that the intent of the drafters envisaged that no class of persons should be locked out from participating in choosing a government of their choice. It is the government’s prerogative to ensure that does not occur.

Kituo cha Sheria

We Care for Justice

The Doctors Strike: A Stark Picture of the State of Affairs in Kenya

law opinionProtest is when I say I don’t like this. Resistance is when I put an end to what I don’t like. Protest is when I say I refuse to go along with this anymore. Resistance is when I make sure everybody else stops going along too.” Ulrike Marie Meinhof

It has been over 90 days now since the doctor’s strike began.

That is a short or overbearingly long time to be without public healthcare depending on where one falls on the social class divide- poor or rich which for majority of Kenyans, it is the former.

Kenya boasts one of sub-Saharan Africa’s fastest growing economies and a national budget amounting to well over One trillion Kenya shillings.

In 2015 more than a quarter of that budget went missing entirely and only 1 percent was spent legally, according to a comprehensive audit by the independent auditor general.

Of the amount that disappeared, a substantial amount about Kshs five billion  came from Kenya’s health ministry.

Doctors therefore argue if government officials can swindle that much money, then the government surely can come up with the funds to implement the 2013 CBA agreement.

The Genesis of the CBA…

In 2013, Kenya’s government agreed to increase salaries for doctors, dentists and other medical professionals.

The striking medical practitioners want a 300% pay rise from their current salary of up to Kshs 130,000 and walked of the job in December after the government refused to implement a three year old joint Collective Bargaining Agreement (CBA).

The agreement was also intended to bolster Kenya’s public health system, setting aside money to fund medical research and to provide doctors with ongoing training to improve their skills. It would also create 400 new residency positions, establish overtime pay, create a grievance procedure for equipment shortages, and hire 1,200 new doctors each year for four years to address the severe nationwide shortage.

Over four years on, officials still haven’t begun to implement any of those changes.

Interestingly, during the same years in which the government was deliberating over whether to raise doctors’ salaries, Kenyan politicians voted repeatedly to raise their own. Kenyan Parliamentarians now earn about Kshs 532,000 per month and thousands of shillings more in annual perks. They are the second most highly paid politicians in the world.

There is something unsettlingly dystopian and truly disturbing about a country having both some of the world’s highest paid legislators and doctors who have little to no equipment, medication and facilities. The same could be said for other professions such as teachers, nurses etc.

Is the CBA legally binding?

The argument of the government has been that the CBA is indeed illegal,; that it is yet to be registered.

However, in a relatively recent turn of events, Justice Monica Mbaru declared the CBA binding and asked the parties to discuss Article 4 which had been suspended pending SRC’s evaluation and input whose report is now out. The Court declared the strike illegal, not the CBA.

There was a case before Judge Hellen Wasilwa of the Employment and Labour Relations Court that was brought forward by the council of governors to try and stop the strike, not the validity of the CBA.

The judgement issued on 6th October 2016 directed that the CBA is binding and to be registered as it is after 90 days if the parties involved didn’t iron out the issues in Article 4.

The government appealed specifically against the automatic registration at the Court of Appeal pending hearing and not against the validity of the CBA.

The long and short of it is that the CBA is legal and binding.

Government response to the strike?

The government has chosen a roughly callous approach to attempt to end the strike. From threatening doctors with sacking letters, with-holding salaries and even boldly threatening to import foreign doctors from countries such as Cuba and India.

Union leaders have been jailed for contempt of court. The sentencing prompted the Kenya Medical Practitioners and Dentists Union to say it was calling off talks with the government. Doctors have rejected a government offer of a 40 percent rise, saying it falls short of promises made in a 2013 agreement including staff shortages and a lack of equipment etc.

It is quite unfortunate that such measures have to be resorted to by the government that is knee deep in one financial scandal after another . . . some of which have details as incredulous as public money being carried in sacks and being taken to stone quarries.

Meanwhile, the average Kenyan suffers. . .

Millions of Kenyans have been unable to access care in public hospitals. Several have passed on as a direct result of lack of proper medical attention and access to public health care.

Conclusion

In the current strike, doctors have clearly outlined the benefits of their demands to the general public and the government. These demands include better equipment, training and more doctors for the healthcare sector in the country. Data from the Ministry of Health shows that there were only about 9,734 registered doctors to attend to a population of 44 million plus.

A much bigger responsibility as compared to the WHO recommended standard of one doctor is to 600 civilians.

The CBA will also cover healthcare financing. The National Hospital Funding falls spectacularly short of providing universal healthcare to citizens of this country.

This whole debacle then raises the question; is it not the duty of the government as the custodian of our taxes to provide proper healthcare for its citizens? Is it thus unreasonable for doctors who have shared stories as grotesque as performing surgeries using flashlight, working very late into the night several days a week due to lack of enough personnel; receiving paltry enumeration and little to no equipment  to demand better?

The doctor’s strike ended at the 100-day mark after doctors reached a deal with the government. It is not clear how much of the doctor’s demands were met but dozens died without care during the period of the strike._

By:

Samantha Oswago

AGCP- Kituo cha Sheria.