Lobatse High Court judge, Key Oagile Dingake, recently dashed the hopes of serving prisoners after he ruled that the constitution determines that even when a person is registered that entitlement is nullified if he or she is in lawful custody when elections are held.
Thomas Sibanda, a serving prisoner at Gaborone First Offenders Prison, had applied to vote in the coming general election, arguing that his disqualification from voting on the basis that he is serving a prison sentence amounts to additional punishment.
Dismissing Sibanda’s application, Dingake said that Sibanda is disqualified from voting by Section Six of the Electoral Act, which stipulates that “anyone who has been sentenced to a prison term exceeding six months shall not be entitled to vote”.
He further said that the Electoral Act is fully authorised by the constitution to make that determination.
The judge, however, agreed with the lawyer representing Sibanda, Gabriel Kanjabanga, that the provisions of the constitution dealing with fundamental human rights carry more weight than others and that therefore this provision deserves more protection from possible erosion by the legislature.
Nevertheless, he said, even though such an approach is permissible, it must be applied only in deserving circumstances. He added that in Sibanda’s case there is no disharmony between sections 3, 12, 13 and 15 of the constitution and Section 6 of the Electoral Act.
Responding to the argument that these sections of the constitution cannot be legitimately upset by an ordinary law such as the Electoral Act, the judge said Sibanda missed the point that disqualifications prescribed by the Electoral Act are authorised by the constitution itself.
Such a submission, he said, would only make sense where the bill of rights section of the constitution conferred the right to vote in unqualified terms and subsequent sections of constitution seem to put some restrictions on that.
The judge said the fact that the right to vote is a form of freedom of expression should not detract from the fact that it is only Section 67 of the constitution that confers the right to vote. Sibanda cannot seek relief from Section 15 as he has not demonstrated that he is being discriminated against in any form prescribed under this section.
The judge also said that it cannot be said that Sibanda’s disenfranchisement violates his right to equality, freedom of expression and assembly or that it unfairly discriminates against him.
Also, even if Section Six of the Electoral Act was found to be in conflict with the constitution, Sibanda’s application was still bound to fail because it was brought late.
Even if the relief sought was granted, there is not sufficient time left to allow the Independent Electoral Commission to comply with all the procedures pertaining to publication and certification of the voters roll.
Sibanda, currently serving a ten-year jail term for theft and burglary, had sought the court’s intervention complaining that the IEC did not afford him the opportunity to vote.
Former Ombudsman, Lithebe Maine, more than ten years ago, recommended that prisoners serving less than six months and those on remand should be helped to do so in accordance with the law.
The recommendation has not been effected.