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Published: Fri, 02 Feb 2018
Prisoners’ Right to Vote-Disenfranchisement as Punishment
In most modern democracies, the right to vote is considered as the most basic fundamental right. Despite the important value attached to this right, there appears to be a strong prevalent perception that prisoners forfeit their right to vote by virtue of their incarceration and that the disenfranchisement of prisoners is indeed a necessary and justified expression of punishment. This paper looks at the protection of the prisoner’s democratic right to vote under domestic and foreign law. It will also examine the question of whether prisoners do or should enjoy such rights, explore the advantages of upholding such rights as well as any possible justifications for curtailing them; in particular, whether there is indeed greater justification for restricting the democratically entrenched right to vote of prisoners on the basis of their status as prisoners. In the final analysis, the paper will argue that there is nothing inherent in the status of the prisoner or the fact of incarceration to justify their exclusion or interference with their voting rights that is not related to a legitimate government purpose.
II: THE SOUTH AFRICAN POSITION
The foundational values of our constitutional democracy include “[u]iversal adult suffrage, a national common voters roll, and a multiparty system of democratic government, to ensure, accountability, responsiveness and openness.” These values are given content in section 19 which specifically deals with political rights. Of particular relevance to the discussion in this paper is section 19(3)(a) which provides that ‘[e]very adult citizen has the right to vote in elections for any legislative body established in terms of the Constitution, and to do so in secret.’
August & another v Electoral Commission & others
This was the first constitutional case to consider the issue of voting rights of prisoners in the absence of any legislative impediments under the 1996 Constitution. The applicants sought a declaration of rights as well as an order directing the respondents to make all necessary arrangements to enable the applicants to realize and exercise their right to vote. In vindicating their rights, the applicants grounded their claim on the basis of three primary constitutional rights, namely the right to vote, the right to equality and the right to dignity. The court found that “[t]the right to vote by its very nature imposes positive obligations upon the legislature and the executive” to take reasonable steps to ensure the realization of such constitutionally entrenched fundamental rights by all. In emphasizing the importance of the right to vote in a democratic society, Sachs J articulated the following powerful and often quoted pronouncement on the nature of the right:
“Universal suffrage on a common voters roll is one of the foundational values of our entire constitutional order. The achievement of the franchise has historically been important both for the acquisition of the rights of full and effective citizenship by all South Africans regardless of race, and for the accomplishment of an all-embracing nationhood. The universality of the franchise is important not only for nationhood and democracy. The vote of each and every citizen is a badge of dignity and of personhood. Quite literary, it says that everyone counts. In a country of great disparities of wealth and power it declares that whoever we are, whether rich or poor, exalted or disgraced, we all belong to the same democratic South African nation; that our destinies are intertwined in a single interactive polity. Rights may not be limited without justification and legislation dealing with the franchise must be interpreted in favour of enfranchisement rather than disenfranchisement”.
Flowing from this line of reasoning on the nature, purport and object of the right to vote, the court proceeded to attach to it a broad and inclusive interpretation that would promote rather than curtail an inmate’s voting rights.
The court acknowledged that incarceration by its very nature has the tendency to encroach upon certain personal rights of prisoners such as freedom of movement, “[n]evertheless, there is a substantial residue of basic rights which they may not be denied; and if they are denied them, then they are entitled to legal redress”. However, notwithstanding this acknowledgement, the court also noted that many democratic societies prohibit certain categories of inmates from voting and that there may be reasonable and justifiable grounds for disenfranchising certain categories of prisoners. In the absence of any such express statutory prohibition, “it was not possible for the respondents to seek to justify the threatened infringement of prisoners’ rights in terms of section 36 of the Constitution” by advancing the simplistic argument that the prisoners had themselves to blame as they were the authors of their circumstance of incarceration which effectively prevented them from exercising their right to vote.
The court concluded that the Commission was thus constitutionally obligated to take reasonable steps to create the opportunity to enable eligible prisoners to register and vote.
The court’s conclusion rejects the idea that the State had done all that was necessary by theoretically allowing prisoners to vote, and unequivocally states that the right to vote, by its very nature, imposed positive obligations on the State to take reasonable steps to ensure that the right is realized in practical terms. In the case of prisoners, it is the state which is simultaneously incarcerating them and de facto denying them the right to realize their constitutionally entrenched right to vote. Thus the traditional view of prisoners’ rights as being temporarily suspended during the effective period of incarceration correctly gave way to the view that prisoners retained a high residual level of rights, losing only those which were taken away by necessary implication. Sachs J relied heavily upon Canadian jurisprudence in holding that the essence of democracy is dependent upon the right to vote and that as such, a broad and liberal interpretation must be afforded to it. He referred to the decision of Cory J in Haig v Canada 105 DLR (4th )577 (SCC) at 613 where the learned justice had the following to say about the democratic right to vote:
“All forms of democratic government are founded upon the right to vote. Without that right, democracy cannot exist. The marking of a ballot is the mark of distinction of citizens of a democracy. It is a proud badge of freedom. While the Charter guarantees certain electoral rights, the right to vote is generally granted and defined by statute. That statutory right is so fundamental that a broad and liberal interpretation must be given to it. Every reasonable effort should be made to enfranchise citizens. Conversely every care should be taken to guard against disenfranchisement”.
Sachs J also made reference to another celebrated Canadian case dealing with the voting rights of prisoners, Sauvé v Canada (Attorney General) 7 OR (3rd) 481 (CAO) per Arbour JA at 488:
“[I]ncarceration conditions should be made, as far as possible, compatible with the fullest possible exercise of the right to vote rather that advanced as a reason to deny that right altogether.”
Minister of Home Affairs v National Institute for Crime Prevention and the Re-integration of Offenders (NICRO) & Others
In response to the August decision, Parliament passed the Electoral Laws Amendment Act which amended the Electoral Act by introducing provisions which disenfranchised prisoners serving sentences without the option of a fine. The effect of the amendments was that inmates facing incarceration without the option of a fine could neither be registered as voters nor could exercise the right to vote while incarcerated.
The court noted at the outset that the rights entrenched in the Bill of Rights are not absolute and are subject to limitation in terms of section 36.
Applying the limitation analysis in terms of section 36, the court proceeded to examine the reasons advanced on behalf of government for curtailing the voting rights of the targeted category of felons. The first purpose advanced was the apparent need to maintain “the integrity of the voting process”. This consideration arose against the backdrop of the need to utilize mobile voting stations for those categories of voters unable to travel to polling stations to cast their vote. The potential for tempering and interfering with such votes during transportation and storage presented certain challenges. It was further argued that due to limited government resources, preference should be given to “people unable to travel to polling stations because of physical infirmities, disabilities or pregnancies . . . government service [and] duties connected with the elections”. Rejecting the argument, the court concluded that “[t]he mere fact that it may be reasonable not to make special arrangements for particular categories of persons who are unable to reach or attend polling stations on election day does not mean that it is reasonable to disenfranchise prisoners”.
The second justification advanced for the disenfranchisement of the targeted group of convicts was the need to minimize the attendant costs of running an election. In the absence of “information as to the logistical problems or estimates of the costs involved” the court was not prepared to accept this as a justifiable ground finding “nothing to suggest that expanding these arrangements to include prisoners sentenced without the option of a fine will in fact place an undue burden on the resources of the Commission”.
The third government purpose advanced for disenfranchising the targeted group of inmates was “a concern that if prisoners are allowed to vote, that will send a message to the public that the government is soft on crime”. Rejecting this line of argument, the court had the following to say:
“A fear that the public may misunderstand the government’s true attitude to crime and criminals provides no basis for depriving prisoners of fundamental rights that they retain despite their incarceration. It could hardly be suggested that the government is entitled to disenfranchise prisoners in order to enhance its image; nor could it reasonably be argued that the government is entitled to deprive convicted prisoners of valuable rights that they retain in order to correct a public misconception as to its true attitude to crime and criminals”.
After rejecting all three of the government advanced purposes, the court concluded that the disenfranchisement of the targeted group of prisoners could not be justified and was consequently unconstitutional.
I agree with the NICRO decision to the extent that the respondents failed to show a rational connection between the targeted group of convicts and the purported government purpose. On the facts, there was no evidence that the nature of the offence was a consideration in disenfranchising the targeted group of felons. In the circumstances, disenfranchisement had an arbitrary effect and could not be regarded as a legitimate form of punishment as it bore little relation to the convict’s particular crime. In other words, no specific category of crimes, such as particular heinous crimes, were targeted by the purported amendment with the unfortunate effect that the target group was unreasonably broad and unjustified in certain circumstances. Were the amending provisions specifically tailored to target a narrow more focused group of hard-core criminals convicted of heinous crimes such as rape, murder and other such violent crimes, one could speculate that the amending legislation would have had a better chance of passing constitutional muster.
III: INTERNATIONAL DECISIONS ON PRISONERS’ RIGHT TO VOTE: A COMPARATIVE ANALYSIS
The following section provides a brief analysis and insight into how foreign and international courts have interpreted prisoners’ right to vote.
Section 3 of the Canadian Charter or Rights and Freedoms states that “[e]very citizen of Canada has the right to vote in an election of members of the House of Commons or of a legislative assembly and to be qualified for membership therein.”
In 1985 the Canadian Elections Act was passed which prohibited prisoners from voting, irrespective of the length of their sentence. This law was challenged in Sauvé v Canada in 1993. The Supreme Court held unanimously that a blanket ban infringed the constitutional right to vote, guaranteed by section 3 of the Canadian Charter of Rights and Freedoms. In response to the decision, the Canadian Parliament replaced the blanket prisoner disenfranchisement law with a new law, denying the right to vote “[e]very person who is imprisoned in a correctional institution serving a sentence of two years or more.” This amended legislation triggered new litigation in 2002, Sauvé v Canada (Sauvé 2).
In Sauvé 2, the Court “conceded that s. 51(e) of the Canada Elections Act infringes s.3 of the Charter [Canadian Charter of Rights and Freedoms]”, thus the Court proceeded to embark on a constitutional justification analysis. It is argued that the “basis of Constitutional scrutiny under the Canadian Charter of Rights and Freedoms is established in section 1 of the Charter, which states that ‘“[t]he Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society’”. The Court thus embarked on a two-stage analysis as formulated in R v Oakes. The first stage of the Oakes test requires one to determine “whether the objective behind the limit is of sufficient importance to justify overriding a Charter right.” The second stage requires one to “consider whether the legislative measure chosen is rationally connected to the legislative objective, whether the measure minimally impairs the Charter right which has been infringed, and finally whether the effects of the measure are proportional to the significance of the objective and whether the salutary and deleterious effects of the measure are proportional.” It is apparent that the majority distinguished the more deferential approach taken by the dissenting judges, noting that ‘“[t]he right to vote is fundamental to our democracy and the rule of law and cannot be lightly set aside. Limits on it require not deference, but careful examination.’”
With regard to the application of the test, the Court noted that the government asserted two objectives for denying prisoners the right to vote. Firstly, “‘to enhance civic responsibility and respect for the rule of law’” and secondly “‘to provide additional punishment, or [e]nhance the general purposes of the criminal sanction.’”
The Court then sought to establish whether a rational connection existed between the government’s stated objectives and the denial of prisoner voting. The government had advanced three theories in support of the rational connection: first, “that depriving prisoners of the vote sends ‘an educative message’ about the importance of respect for the law to both prisoners and the society at large”; secondly, “that allowing penitentiary inmates to vote ‘demeans’ the political system;” and third, that “disenfranchisement is a legitimate form of punishment, regardless of the . . . nature of the offence or the circumstances of the . . . offender.”
The Court rejected the government’s stated reasons for the denial of the right to vote, including the propositions that prisoner disenfranchisement would enhance civic responsibility, respect for the rule of law, and the general purpose of criminal sanction. The Chief Justice, speaking on behalf of the Court, held that:
“[d]enying penitentiary inmates the right to vote misrepresents the nature of our rights and obligations under the law and consequently undermines them. In a democracy such as ours, the power of lawmakers flows from the voting citizens, and lawmakers act as the citizens’ proxies. This delegation from voters to legislators gives the law its legitimacy or force . . . . In sum, the legitimacy of the law and the obligation to obey the law flow directly from the right of every citizen to vote . . . . The government gets this connection exactly backwards when it attempts to argue that depriving people of a voice in government teaches them to obey the law. The ‘educative message’ that the government purports to send by disenfranchising inmates is both anti-democratic and internally self-contradictory. Denying a citizen the right to vote denies the basis of democratic legitimacy.”
Furthermore, the court had the following to say in rejecting government’s stated purposes for the disenfranchisement of inmates:
“Section 51(e) does not meet the proportionality test. In particular, the government fails to establish a rational connection between s. 51(e)’s denial of the right to vote and its stated objectives. With respect to the first objective of promoting civic responsibility and respect for the law, denying penitentiary inmates the right to vote is more likely to send messages that undermine respect for the law and democracy than messages that enhance those values. The legitimacy of the law and the obligation to obey the law flow directly from the right of every citizen to vote. To deny prisoners the right to vote is to lose an important means of teaching them democratic values and social responsibility. The government’s novel political theory that would permit elected representatives to disenfranchise a segment of the population finds no place in a democracy built upon principles of inclusiveness, equality, and citizen participation. That not all self-proclaimed democracies adhere to this conclusion says little about what the Canadian vision of democracy embodied in the Charter permits. Moreover, the argument that only those who respect the law should participate in the political process cannot be accepted. Denial of the right to vote on the basis of attributed moral unworthiness is inconsistent with the respect for the dignity of every person that lies at the heart of Canadian democracy and the Charter. It also runs counter to the plain words of s.3 of the Charter, its exclusion from the s.33 override, and the idea that laws command obedience because they are made by those whose conduct they govern”.
The dissenting judges argued that since the constitutional question rested on “philosophical, political and social considerations which are not capable of ‘scientific proof’, it was appropriate to give Parliament significant deference.” The dissent concluded that “[w]hile it has been conceded that [the disenfranchisement law] does infringe s.3 of the Charter, the infringement is reasonable limit that is demonstrably justified in a free and democratic society.”
European Court of Human Rights
Shortly after the Constitutional Court reached its decision in NICRO, the European Court of Human Rights (“ECHR”) made a landmark decision on prisoner disenfranchisement. In the case of Hirst v. United Kingdom (Hirst 2), the ECHR considered a British law that put a blanket ban on all prisoners, regardless of their crime, for the entire duration of their sentence. The applicant was a prisoner serving a “discretionary” life sentence for killing his landlady. In 1980 he pleaded guilty to manslaughter on the grounds of diminished responsibility. His tariff period (that part of the sentence relating to retribution and deterrence) expired in 1994 and his continued detention was based on the Parole Board’s view that he presented a risk of serious harm to the public if released.
In 1983 Parliament re-enacted a blanket ban on prisoners serving a term of imprisonment from voting in parliamentary or local elections. This ban was slightly modified by the Representation of the People Act 2000, to allow remand prisoners to vote. The government justified the blanket ban on the ground that it was part of a convicted prisoner’s punishment to lose the right to vote.
The applicant argued that the right to vote was one of the basic rights that underpinned a democratic society and that the general ban was disproportionate, arbitrary and impaired the essence of the right to vote. He argued further that, as a post-tariff prisoner the punishment element of his sentence had been served and therefore no justification relating to punishment could support his disenfranchisement.
The main issue is Hirst 2 was whether the prisoner disenfranchisement law violated Article 3 of Protocol No.1 to the Convention for the Protection of Human Rights and Fundamental Freedoms of the Council of Europe, which states that “[t]he High Contracting Parties undertake to hold free elections at reasonable intervals by secret ballot, under conditions which will ensure the free expression of the opinion of the people in the choice of the legislature.” The Government claimed that the right to vote under Article 3 of Protocol No.1 “was not absolute and established jurisprudence accorded States a wide margin of appreciation in determining the circumstances in which the right was to be exercised.” The government argued that the blanket ban served two legitimate purposes: “punishing offenders and enhancing civic responsibility by depriving those who had breached society’s rules of the right to participate in the making those rules during the period of incarceration.”
The Court examined extensively the Canadian decision of Sauvé 2 as well as the South African decision of August. Thereafter the Court used the test established in Mathieu-Mohin and Clerfayt v. Belgium, to examine the tension between the British legislation and Article 3 of Protocol No.1. In terms of the test, “[The Court] has to satisfy itself that the conditions do not curtail the rights in question to such an extent as to impair their very essence and deprive them of their effectiveness; that they are imposed in pursuit of a legitimate aim; and that the means employed are not disproportionate.”
With respect to the government’s argument that “under Article 3 of Protocol No.1 the right to vote was not absolute and that a wide margin of appreciation was to be allowed to Contracting States in determining the conditions under which the right to vote was exercised”, the Court held that, “although a margin of appreciation did exist, the court does not consider that a contracting state may rely on the margin of appreciation to justify restrictions on the right to vote which have not been subject of considered debate in the legislature and which derive, essentially, from unquestioning and passive adherence to a historic tradition.”
As stated earlier above, the British government asserted two objectives in support of the law disenfranchising prisoners. It was argued firstly that, “the law served to prevent crime and punish offenders”, and secondly that, “it operated to ‘enhance civic responsibility and respect for the rule of law ‘by depriving those who have seriously breached the basic rules of society of the right to have a say in the way such rules are made for the duration of their sentence.’”
In its reasoning, the Court relied heavily on the reasoning of Sauvé 2. The Court was sceptical about the objectives put forward by the government. Morgan-Foster points out that, first, the Court was perturbed by the government’s “deter and punish” objective in light of the fact that “the loss of the right to vote plays no overt role in the sentencing process in criminal cases in the United Kingdom”, and that secondly “the Court was also deeply sceptical of the British government’s objective of enhancing civil responsibility and respect for the rule of law, concluding that ‘there is no clear, logical link between the loss of vote and the imposition of a prison sentence, where no bar applies to a person guilty of crimes which may be equally anti-social or ‘uncitizen-like’ but whose crime is not met by such a consequence.” The court ultimately left these concerns as obiter dicta, and found the law incompatible with the Convention in that it failed the proportionality test. The Court thus held that “an indiscriminate blanket disenfranchisement of all prisoners, irrespective of their crime or length of their imprisonment, could not possibly withstand the proportionality test.” The Court also emphasised the fact that “a blanket ban was overly arbitrary, because a person serving a mere week-long prison sentence would be disenfranchised if an election happened to fall during that week.” With regard to the particular situation of the applicant, who had completed his sentence and was being detained due to his personality disorder which made him a potential danger to society, the Court “found it impossible to accept that a law premised on punishment, but encompassing such a case within its reach, could be considered proportional.” Lastly, the Court found “no evidence that the legislature in the United Kingdom has ever sought to weigh the competing interests or assess the proportionality of the ban as it affects convicted prisoners.” The Court therefore concluded that the general ban on prisoner voting imposed in the United Kingdom was incompatible with Article 3 of Protocol No.1.
In 2004 the government made a request for the case to be referred to the Grand Chamber, which request was granted. In 2005 the Grand Chamber issued a judgment. In reaching its decision, the Grand Chamber reviewed relevant provisions of the International Covenant on Civil and Political Rights (“ICCPR”), recommendations of the Council of Europe, surveyed the law of member states of the Council of Europe, as well as Canadian and South African decisions. In examining the case at hand, the Grand Chamber reaffirmed that the margin of appreciation was wide and noted that “‘[t]here are numerous ways or organising and running electoral systems and a wealth of differences, inter alia, in historical development, cultural diversity and political thought within Europe.’” It further noted that “‘[i]t is . . . for the Court to determine in the last resort whether the requirements of Article 3 of Protocol No.1 have been complied with’”, deciding whether ‘any conditions imposed . . . thwart the free expression of the people in the choice of the legislature.’”
In its analysis the Grand Chamber emphasised that “prisoners in general continue to enjoy all the fundamental rights and freedoms guaranteed under the Convention save for the right to liberty, where lawfully imposed detention expressly falls within the scope of Article 5 of the Convention.” Since any restrictions on other rights require justification, the Court had to “‘determine whether the measure in question pursued a legitimate aim in a proportionate manner.’” The Grand Chamber concluded that “the aims proposed by the Government, ‘preventing crime and punishment offenders and enhancing civic responsibility and respect for the rule of law’, were legitimate, but found the means disproportional’” concluding that:
“…section 3 of the 1983 Act remains a blunt instrument. It strips of their Convention right to vote a significant category of persons and it does so in a way which is indiscriminate. The provision imposes a blanket restriction on all convicted prisoners in prison. It applies automatically to such prisoners, irrespective of the length of their sentence and irrespective of the nature or gravity of their offence and individual circumstances. Such a general, automatic and indiscriminate restriction on a vitally important Convention right must be seen as falling outside any acceptable margin of appreciation, however wide that margin might be, and as being incompatible with Article 3 of Protocol No.1.’”
The Grand Chamber thus basically followed the reasoning of the earlier Chamber judgment.
Various countries around the world limit the right of prisoners to vote in a number of ways. It is argued that “the most common method of disenfranchisement is to link voting rights to the length of the prison sentence imposed, a sentence exceeding a certain minimum will result in the forfeiture of voting rights”. For example, the minimum sentence which would attract the attendant forfeiture of voting rights can be summarised as follows: Sri Lanka- six months, Canada- two years, New Zealand- three years and Australia five years. On the other hand, prisoners in the United Kingdom and Japan are completely disenfranchised and those in Denmark, Ireland, Israel, Sweden and Switzerland retain their voting rights irrespective of the length of the sentence.
In the United States blanket disenfranchisement is widespread. According to a 2004 survey, fourteen American states permanently disenfranchise ex-prisoners. In forty-eight states and the District of Columbia, criminal disenfranchisement laws deny the vote to all convicted felons in prison. Thirty-five states disenfranchise prisoners on parole; thirty-one of these states disenfranchise prisoners on probation.
Prisoners are by necessity, a marginalised community, with many restrictions placed upon their rights. Notwithstanding this reality of life in the penitentiary, constitutional rights by no means end at the prison gates, and may only be limited in justifiable circumstances. A prisoner behind bars remain a citizen and is entitled to equal protection and benefit of the law afforded to all citizens as well as a vindication of his constitutionally entrenched fundamental rights by the courts-just like any other ordinary citizen living outside the prison walls. The right to vote is meaningless unless it is accompanied by the opportunity to vote.
The disenfranchisement of prisoners has the chilling effect of silencing a group already on society’s margins. Prisoner disenfranchisement may impress upon inmates the stigma of not being afforded the benefits of full citizenship leading to feelings of alienation. The effect of not being afforded the benefit of full citizenship through disenfranchisement may have symbolic significance because prisoners may see themselves as outcasts and see no value in attempting to assimilate with law-abiding citizens. Quite probably, the restriction of voting conveys a symbolic message of second-class citizenship and may well operate as a disincentive to a prisoner’s positive re-entry into society upon release. Thus the emphasis on reintegration into society should be a primary consideration when interpreting legislation dealing with voting. Once we acknowledge the necessity of reintegration, it could go a long way in encouraging inmates to think of themselves as accepted members of society with attendant civic responsibilities.
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