By LUKOYE ATWOLI
Sunday Nation 04 July 2010
The recent court ruling on the right of prisoners to vote at the referendum adds to the increasingly fashionable trend that has seen the Kenyan judiciary transform itself from the traditionally stuffy conservative outfit into an activist institution.
The key finding in this ruling was that prisoners constitute a segment of “all Kenyans”, and thus share the constituent power to participate in determining the structure of the state through a constitutional referendum.
Notwithstanding the firmness or otherwise of the academic and practical foundation on which the ruling is anchored, it opens an aperture through which future governments will be compelled to allow prisoners to participate in general elections.
This will happen even though the court indicated that the present ruling applies only to the referendum, and not to parliamentary and presidential elections. Indeed, the reasoning elaborated in the judgment suggests just this eventuality given that it questions the role of restriction of voting rights in the rehabilitation of convicted criminals.
We must of course defer to learned legal minds to clarify the implications of this ruling that has been hailed as landmark jurisprudence before we can fully comprehend its import. We must even anticipate similar rulings in future regarding other special interest groups as Kenya enters the era of prodigious litigiousness. However, a certain portion of the ruling raises interesting issues as far as the right to vote generally is concerned. In their judgment, the judges averred that the Constitution of Kenya “does not in any way exclude inmates who are over 18, of sound mind and who have not committed an electoral offence from voting in a referendum”.
Read in isolation this ruling implies that there are only three conditions that must be satisfied as far as voting in the referendum is concerned: Age over 18 years, having a sound mind, and not having been convicted of an election offence.
The age of a citizen and his or her criminal history are relatively easy to determine, and they can be easily codified for purposes of determining eligibility to register as a voter.
Determining soundness of mind would, however, be more troublesome. Under ordinary circumstances, the law presumes everyone who has attained the age of majority to be of sound mind, and anyone who makes claims to the contrary would be required to provide concrete proof of the fact.
This is why throughout the constitution and most written laws, the finding of unsound mind is never implied and must be actively proved. For instance, the constitution only bars people who are lawfully “adjudged or otherwise declared to be of unsound mind” from registering as voters or vying for political posts. This means that the “unsound mind” must not only be alleged, but it must also be competently demonstrated.
This raises questions that seem to have been largely glossed over by the learned judges. Why do we bar individuals declared to be of “unsound mind” from voting? Who determines whether someone is of unsound mind, and under what circumstances? Can an individual be declared to be of unsound mind today, and later regain “soundness of mind” for purposes of voting?
There is no medical equivalent for “unsound mind”. We know that there are a variety of mental disorders of varying severity that may affect an individual’s thinking and reasoning abilities for variable periods of time. Many of these conditions are amenable to treatment, and as long as they are under control, the individual is capable of making important decisions in his or her life.
Only a very brave psychiatrist (probably with an intractably ill patient) would declare their patient so mentally impaired that they should never be allowed to vote or make other important decisions in their life. The upshot of this argument is that “soundness of mind” is a difficult state to prove, and even when clearly demonstrated in one instance, it may not persist long enough to make a difference in the long run.
If the intention of the law was to prevent people with impaired mental health or poor reasoning capacity from voting, it should have mandated a mental status examination before one is allowed to vote, given that there is often a time lapse between registration and voting when a person’s “sound mind” might develop other ideas.
In my opinion, more stringent mental health criteria should be applied to those aspiring to political leadership in our country, instead of going out of our way to ensure that a voter’s decision is the product of reason, and not insanity. Indeed, it is voters with arguably “sound minds” who have repeatedly saddled our country with “leaders” who would be better served with an involuntary admission to a mental hospital.
Dr Lukoye Atwoli is a consultant psychiatrist and lecturer at Moi University School of Medicine. www.lukoyeatwoli.com