Court dismisses fresh bid on prisoners, diaspora vote

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The High Court in Kampala has dismissed a case in which a concerned citizen sought an interim order barring the Electoral Commission (EC) from proceeding with the forthcoming general elections without making arrangements for prisoners and Ugandans living in the diaspora to vote.

In his application, Omega Nyeko Aloyo also sought a declaration that the Electoral Commission’s failure to facilitate voting by prisoners was illegal, discriminatory and amounted to contempt of judicial authority. The general elections are slated for the 15th of this month.

However, in a ruling dated January 4 this year, Justice Bernard Namanya of the Civil Division dismissed the case on the grounds that the matter had already been determined by court and was therefore res judicata.

Justice Namanya noted that the issue had been substantially resolved by Justice Lydia Mugambe in the 2020 case of Stephen Kalali versus Attorney General and consequently made no orders regarding the participation of inmates and Ugandans living in the diaspora in the forthcoming general elections.

“I have carefully considered the facts of the case before me now and Kalali Steven versus Attorney General. My conclusion is that the issue raised by the current case was directly and substantially in issue in Kalali Steven versus Attorney General and was decisively dealt with by the court,” Justice Namanya ruled.

In the Kalali Steven v Attorney General case, Justice Mugambe held that the conduct of the Electoral Commission in denying prisoners and Ugandans living in the diaspora the right to vote violated Articles 1, 21 and 59 of the Constitution.

She consequently directed the Electoral Commission to comply with its obligations under Article 59 of the Constitution by taking all necessary measures to ensure that prisoners and Ugandans in the diaspora register and exercise their right to vote.

However, the Electoral Commission, chaired by Justice Simon Byabakama, is yet to enforce the ruling.

The matter before Justice Namanya was heard ex parte after the Electoral Commission failed to file a defence or send a representative to court.

Uganda has over 254 prison facilities housing more than 78,000 inmates, while an estimated four million Ugandans live in the diaspora. Some of those in the diaspora are registered voters, and many return home during general elections to cast their ballots.

What the Electoral Commission says

The Electoral Commission argues that it cannot include prisoners in elections without an enabling law.

Paul Bukenya, the Commission’s deputy spokesperson, contends that although Article 59 guarantees the right to vote for all citizens aged 18 years and above, there must be specific legislation outlining how prisoners and Ugandans living abroad can participate.

“Therefore, we have not yet made arrangements because the required legal framework is still lacking,” Bukenya said.

However, legal practitioners such as Kalali argue that prisoners remain citizens with full political rights and that denying them the opportunity to vote silences their voice in choosing the country’s leadership.

Kalali maintains that imprisonment does not strip citizens of their political rights and that the Electoral Commission must take steps to ensure inmates are not unjustifiably denied their right to vote.

“As we speak now, the Electoral Commission is not only in contempt of court but also acting in violation of clear constitutional provisions,” Kalali said.

Several African countries, including South Africa and Zambia, allow prisoners to vote.

In many modern democracies, the right to vote is regarded as a fundamental right.

Inmates’ right to vote

Despite the importance attached to this right, there remains a prevailing perception that prisoners forfeit their right to vote by virtue of incarceration and that disenfranchisement is a justified form of punishment.

The first major constitutional case on prisoners’ voting rights was August and others versus the Electoral Commission of South Africa. In that case, inmates sought a declaration of their right to vote and an order compelling the Electoral Commission to make arrangements to enable them to exercise that right.

The South African court held that the right to vote imposes positive obligations on the legislature and the executive to take reasonable steps to ensure that constitutionally entrenched rights are realised by all citizens.