On 25th June 2010, the Interim Independent Constitutional Dispute Resolution Court (“The court”) held that inmates were entitled to participate in the constitutional making process as of right, and further that the Constitution only barred people in protective custody from participating in a general election but not in a referendum. Therefore, all eligible prisoners in Kenya have a right to vote in the upcoming referendum on the Constitution.
The court observed that the peoples’ constituent power was above the Constitution itself; meaning that this is the power that enabled the people to take part in a referendum. The court stressed that a referendum only applies when the Constitution is to be made, altered or replaced, which is clearly distinct from National Assembly and Presidential Elections. The court cited the celebrated Njoya case where the High Court stated, “… The sovereignty of the people betokens that they have a constituent power – the power to constitute and/or reconstitute as the case may be their framework of Government. That power is a primordial one. It is the basis of a Constitution and it cannot be conferred or granted by the Constitution…”
The court referred to the recent constitutional amendment to section 47 through the Constitution of Kenya (Amendment) Act which further recognized this sovereignty as follows:“Notwithstanding anything to the contrary in this Constitution:-
(a) the sovereign right to replace this Constitution with a new Constitution vests collectively in the people of Kenya through a referendum, in accordance with this section:” The court further made reference to international conventions that Kenya is a signatory to, such as the International Covenant on Civil and Political Rights (ICCPR) which provides that “Every citizen shall have the right and the opportunity, … without unreasonable restrictions… to take part in the conduct of public affairs, directly or through freely chosen representatives;…”
The Court acknowledged that people in protective custody in Kenya are barred from voting by section 43 2(c) the Constitution. Nevertheless, the court emphasised that the section referred to the National Assembly and Presidential elections and not a referendum. In allowing the petition, the court further found that the constituent rights to vote in a referendum was a basic human right and that on the balance of proportionality there was no legitimate governmental objective or purpose that would be served by denying the inmates the right to vote in a referendum. This right would however only be exercised by inmates of sound mind, who are over 18 years of age and who had not committed an electoral offence.