Court rules denying inmates voting rights is unconstitutional

Dar es Salaam. The High Court of Tanzania ruled yesterday that it was unconstitutional to restrict remandees and convicts serving regular criminal terms the ability to vote in elections.

The ruling was issued by the High Court of Tanzania following Judge Elinaza Luvanda’s decision in the constitutional lawsuit brought by two former inmates.

The duo, Mr Tito Elias Magoti and Mr John Boniface Tulla, brought the lawsuit this year to the High Court Registry, saying that they were denied the aforementioned privilege during the 2020 General Election.

As a result, they brought a lawsuit against the Tanzania Prison Service (TPS), the Commission for Human Rights and Good Governance (CHRGG), the Attorney General (AG) and the National Electoral Commission (NEC).

In the constitutional case number 3/2022, the applicants were challenging the obstruction to vote imposed against prisoners and detainees who are waiting hearing of their cases, especially Section 11(1)(c) of the National Election Act (NEA), Cap 434 as revised in 2015.

The section stipulates that people who have been given a death sentence and those who are serving jail terms longer than six months must refrain from voting during elections.

The High Court invalidated the aforementioned section, claiming that it went against the country’s Constitution, and replaced it with language stating that the aforementioned groups of persons have equal rights that are upheld and safeguarded by the Constitution of the nation.

The section does not forbid the exercise of the aforementioned right by remandees while they wait for their cases to be heard; rather, it states that the TPS has not established any processes that would allow the aforementioned category of people to exercise their rights.

In his affidavit, Mr Magoti alleged that after being confined at the Segerea Prison for hearing of the economic sabotage charge he was facing, he was denied the opportunity to vote in the 2020 General Election.

For his part, Mr Tulla demanded that he was likewise denied the right to vote during the same General Election after being sentenced to one year at the Segerea Prison.

However, the respondents objected to the claims, saying NEC has been equally providing all citizens with the right as provided by the law.

State attorney Narindwa Semkanga demanded at the court that the said section of the law does not contravene the country’s constitution and that it clearly outlines the people who do not have the right to vote as those on the death row and those serving sentences exceeding six months.

However, in his decision, Judge Luvanda agreed with arguments submitted by the applicant’s lawyer, saying provided conditions contravene with demands of the constitution.

He said there was no law or regulation that prohibits remandees from being registered or participating in the voting exercise during elections and that there is no section of the law that requires enactment of procedures for the said rights to be executed.

He said rights to vote to remandees aged over 18 years were preserved and protected by the country’s constitution. Judge Luvanda said although Article 5(2) of the Constitution gives Parliament the right to formulate a law that could put conditions that prohibit Tanzanians from exercising the right, but by imposing the objection, Parliament would have contravened the context of the constitution.

He clarified that in his opinion, the Parliament would have listed all the major criminal offences that once an individual is convicted with, then he/she is denied the right to vote including treason and murder offences whose maximum punishment is death penalty.

According to him, the said section has issued a collective statement without providing details about inmates serving sentences exceeding six months, instead, the offences are not listed.

“Therefore, I pronounce that verse (c) of Section 11(1) of the NEA contravenes the country’s constitution. Therefore, the condition is void and null,” he pronounced.

He rejected the applicants’ plea demanding payment of Sh50 million each over what they claimed as the negative impacts of being denied the right to vote.