21.04.2010 Feature Article

Rejoinder: Why voting by prisoners? Supreme court is wrong

Rejoinder: Why voting by prisoners? Supreme court is wrong
21.04.2010 LISTEN

I wish to comment on an article that appeared on myjoyoline titled “Why Voting by Prisoners? Supreme Court is Wrong”, an article credited to I. K. Gyasi. The writer lamented the depravation in the country's prisons and acknowledged that our treatment of prisoners is not the best. He however contested the propriety of the Supreme Court's land mark decision declaring section 7(5) of the Representation of the People Law, 1992 (PNDCL 284) void and the consequent ordering of the Electoral Commission to put measures in place to allow prisoners to vote in all national elections.

The writer contended that the Supreme Court's decision is likely to open the floodgates for “self-appointed human rights do-gooders” to advocate for all manner of privileges to be extended to prisoners, including demanding for better food and shelter, freedom of movement and access to counselors. He agrees that not all prisoners deserved to be treated with disdain, admitting that not all prisoners are guilty of the offences for which they were jailed. He maintains nevertheless that those who go to prison are only temporarily taken out of society and that no injury is done to them when their rights to vote are only temporarily taken from them.

We have to admit that morality and law are mutually exclusive and that we will be doing our prisoners, and of course ourselves a great deal of disservice if we discourse in matters pertaining to prisoners' rights as if law and morality were identical. The right which entitles the prisoner to vote, as implied in the Supreme Court's decision is conferred by the 1992 Constitution and no “inferior” law to the Constitution or moral injunction can take away that right. To argue that the prisoner does not deserve to enjoy his constitutional right to vote merely because it will lead human rights advocates to demand the enjoyment of other arguably undeserving rights is untenable. Imprisonment per se is not a violation of the prisoner's right. But the conditions in a prison and the treatment meted to a prisoner may violate the prisoner's rights. There is no doubt that the state has a responsibility towards the prisoner with regard to the food he is fed, the shelter in which he is housed and his access to health, to counsel, etc. As to whether the state is well endowed to discharge this responsibility to the prisoner and whether the Supreme Court will enforce a prisoner's claim for these rights where the state is not rich enough to discharge those rights is another thing. If the fear of the writer really is the opening of the floodgates for rights claims, he can rest assured that the Supreme Court will only grant the request of a human rights advocate if that request will not infringe on the rights of other persons, or if that request is in the national interest. Even with those of us who may call ourselves freemen the state is constantly infringing on certain of our rights. But we cannot enforce those rights in court because the court knows the state cannot comply if it orders it given the country's economic situation, or that it will not be in the interest of national security to order that the state upholds all our rights. But for those rights of the prisoner that can be granted without any stress to state and people, like voting rights, the court as in this particular case should order their enforcement.

The writer mentions some of the reasons for the state imprisoning offenders to include the need to for justice to be dispensed, reformation and deterrence. It appears to me that the ruling of the Supreme Court is in consonance with this observation of the writer. The justice system needs to motivate the reformed or deterred prisoner as the prisoner strives to overcome his mistakes and assume his role in society. The stress involved in our trial process and the stigma that comes with it are enough to deter or reform an offender, not to mention spending just one night in our prisons. I don't dispute that some people never get reformed. The fact however remains that we are

unable to measure, between his trial and imprisonment when deterrence or the reformation of a genuinely repentant prisoner actually takes place. Do prisoners who come out of prison deterred or reformed achieve reformation two or three or four days, weeks, months, into their imprisonment? Do they achieve it half way through their prison term, or do they only achieve reformation after leaving prison?

If the essence of imprisonment is anything to go by, and given the conditions in our prisons, it stands to reason that many of our prisoners might have been deterred or reformed long before their sentencing was pronounced, or before their prison terms were completed. Do they not deserve to vote therefore, as they may have truly repented even while in prison? I concede that some of the hardened criminals never repent. But those are not the majority among our prisoners or even if they were, the Constitution as the supreme law says they may vote.

Many of our prisoners are in prison for simple mistakes you and I make everyday but with which we manage to escape the law. For some of them they are there because they were too poor to get a good lawyer, or that their lawyer was not up to his task when it mattered most. For others they are there because a policeman or some other powerful authority conspired to consign them to prison. Yet still some screwed up their evidence, or their witnesses screwed them up. But there are still some who were never tried at all before they attained the title

'prisoner'. We should not treat all of these people as if they were armed robbers and murderers who were tried and convicted with the best legal facilities at their disposal.

It may be true to assert that every robber, murderer or rapist is unsound in the mind and so should not be allowed to vote. However, such offenders are not known to the law as mad men. To the law, an unsound person is one who upon examination has been declared mad by a certified doctor. The same law that gives sound persons the right to

vote also says that the armed robber, the rapist and the murderer that has been convicted is sound in mind. Ironically, if the law were to regard these offenders as unsound in mind, the law would not punish them with the same severity for committing those offences. The very fact of their imprisonment for committing those offences is also proof of their soundness in mind. If we could judge the soundness of human beings by their acts, many of us, particularly our politicians would not vote. Even then, the truth also is that infirmity of mind may only be temporary and may cease after an unintended offence has been committed. In fact, we all become temporarily mad once in a while and regret our actions when we become lucid. Some of us even become mad on election day before we go to the polling centre to vote and remain so till our party loses when we become lucid, or degenerate for some days if our party wins. All the same we vote because we have not been officially certified as mad. People may temporarily lose their senses when they are extremely provoked, or when they defend themselves or loved ones against attack, or even when they are stressed. Prisoners, in my view cannot be disqualified from voting merely on ground of madness because it is “legal madness”, not “moral madness” that takes away the right to vote.

I stand to be corrected but I think prisoners should vote if the law as it is does not disqualify them from voting. Some prisoners do not deserve to be in prison in the first place because they never actually committed the offence for which they were convicted, or if they did commit the offence their action was legally defensible. For others who may actually have been deservedly convicted, the nature of the crime may not have been such as to entitle us to deny them the right to vote. In fact, the prisoner has the right to determine who comes to power just as the free man does because they both need better prison facilities; the former so as to survive his conviction and prove to

society that he has reformed; the latter so as to ensure that he lives in dignity when he is convicted after failing to prove his innocence. The prisoner has the right to determine who comes to power because a Ghana free from corruption will ensure an appeal against his conviction to a higher court succeeds; that he will be tried and convicted before he is made to “sleep” with convicted criminals. I am always happy when an armed robber or a rapist is convicted. But I know also that there are so many people in there who should not be there. We should think about them too and not add to their woes by treating them as if they deserved to be there, or as if we were perfect and they were not. Let us extend to them all those rights and curtsies which we can extend to them without losing anything as a nation. Let us not deny them rights that are due them just because they happen to be sharing residence with others who do not morally deserve those rights. Legally, and to a great extent morally, the Supreme Court's decision extending voting rights to prisoners is right.

Credit: Adams A. Alhassan
E. P. College of Education
P. O. Box 16
Email: [email protected]