42759 Zemenu Tarekegn yimenu / Elixir Law 99 (2016) 42759-42767 Available online at www.elixirpublishers.com (Elixir International Journal) Law Elixir Law 99 (2016) 42759-42767 Prisoners‟ Right to Vote in Ethiopia: Unconstitutionally stalled Human Right Zemenu Tarekegn yimenu * ARTICLE INFO ABSTRACT Article history: This article shows that right to vote is a recognized human right, under many Received: 8 August 2016; international human rights instruments, that should be respected and ensured to citizens Received in revised form: without any discrimination. It, after scrutinizing the election laws of Ethiopia via the 29 September 2016; mirror of the constitution and international human rights instruments, determines that the Accepted: 4 October 2016; election laws of Ethiopia, which prohibit prisoners‟ right to vote, are unconstitutional and recommends the Ethiopian government to reconcile it again. Keywords © 2016 Elixir All rights reserved. Elections, Human rights, Constitution, Conviction. 1. Introduction The government which receives authority form the “In a democracy that takes collective self-government sovereign through the device of vote shall secure the will of seriously, the right to vote is the „right of rights‟”1. the majority. This calls for the basic principle of election i.e. The right to vote is a basic human right that empowers universal and equal suffrage. This principle requires that right citizens to influence government‟s decision-making and to to vote to be universal and accessed to all persons equally safeguard their other human rights.2 The right to vote is without any discrimination based on race, religion, sex, considered as gate keeper of all other human rights. It is education, or any other status. because the right to vote empowers the sovereign to influence Even though, Ethiopia is the owner of the constitution the government in which the later, in return, owes obligation which recognizes international treaties as part of the law of the towards the sovereign. It enables the sovereign to give land3 and a signatory to conventions like ICCPR which authority to a party which best protects and enforces human prescribes for prisoners‟ right to vote, it deprived prisoners‟ rights. right to vote by the electoral law4 and directive5 which is issued by the board against the principle of universal and equal suffrage. This means the electoral law of Ethiopia has infringed the right to vote as human right for more than 85,450 **LL.M in ICT laws, University of Oslo (NRCCL); LL.M in persons6 who are currently serving their prison terms. This business laws, Addis Ababa University. He is a lecturer in figure can play a greater role in determining the majority will Debre Markos University School of law, and an Attorney and of the sovereign. Consultant at Laws in Amhara Regional State, Ethiopia. He The first section of the article highlights the legal basis of can be reached @: [email protected] 1 prisoners‟ right to vote as a human right. In this section William Cobbettcited in J Waldron, „Participation: The Right international and regional covenants are dealt with. The of Rights’ (1998), http://philpapers.org/rec/WALPTR, last obligation of the state towards the right to vote and the debate visited on: 9/8/2013. 2 for and against the disenfranchisement of prisoners are Tuzin Alexander and de la Vega Connie,the Right to Vote: A addressed in section two and three, respectively. The different Basic Human Right in Need of Protection,http://daccess- legal experience of countries like USA, European Union, and ods.un.org, last visited on 7/8/2013. While the right to vote is widely recognized as a fundamental human right, this right is not fully enforced for millions of individuals around the 3 Constitution of Federal Democratic Republic of Ethiopia, world. Consistently disenfranchised groups include non- 1995, article 9(4) , proc. no. 1 Neg. Gaz. Year 1, No.1 citizens, young people, minorities, those who commit crimes, 4 Electoral law of Ethiopia, 2007, article 33(3), proc. no.532, the homeless, disabled persons, and many others who lack Neg. Gaz. Year 13, No. 54 access to the vote for a variety of reasons including poverty, 5 The directive for registration of electors (as amended) ,2009, illiteracy, intimidation, or unfair election processes. See.,. art. 20, directive no. 2. Study guide for the right to vote, university of Minnesota 6 Walmsley Roy, World Prison Population List(ninth edition), human right center, www.prisonstudies.org, last visited on 6/8/2015 http://www1.umn.edu/humanrts/edumat/studyguides, last visited on 8/8/2015. Tele: E-mail address: [email protected] © 2016 Elixir All rights reserved 42760 Zemenu Tarekegn yimenu / Elixir Law 99 (2016) 42759-42767 South Africa are assessed in section four. Section five of enjoyment of the aforementioned rights on the grounds of race, this article address specifically prisoners‟ right to vote in colour, sex… or other status."9 It further qualifies that if states Ethiopia by reviewing pertinent laws of the country. This are instant to suspend the right vote on the basis of conviction section, in particular, observes the FDRE constitution and for an offence, the period of such suspension should be election laws and makes analysis of the election laws via the proportionate to the offence and the sentence. However, the constitution. general comment 25 refers to suspensions of voting rights by Finally, the writer argues that the prisoners may not be criminal bench in accordance with criminal law of states. This deprived of their right to vote on the ground of conviction as may be considered as a part of sentences and has specified the limitation goes against the human rights of prisoners time span by the law. Such suspension of right to vote is recognized in different international human rights documents imposed purposely to correct and deter the criminal and others and FDRE constitution. So, therefore, the electoral laws are respectively. So, the general comment while it tolerates determined as unconstitutional. temporary suspension of right to vote based on conviction, it 2. The Legal basis of prisoners’ right to vote as a prohibits the limitation of right to vote by law. human right Moreover, the Optional Protocol to International Covenant 2.1. UDHR on Civil and Political Rights no. 14668 to which Ethiopia is a The universal declaration of human rights which is signatory, under article 25, stipulate similar terms like UDHR regarded as a founding document for human rights gives and ICCPR. Nevertheless, in some countries including recognition for prisoners‟ right to vote as human right. Under Ethiopia, citizens are denied their voting rights as a matter of article 21(3), UDHR states that “the will of the people shall be law, based on a criminal conviction. the basis of the authority of government; this will shall be 2.3. ACHPR expressed in a periodic and genuine elections which shall be Article 13(1) of the African Commission on Human and by universal and equal suffrage and shall be held by secret People‟s Rights stipulates that “Every citizen shall have the vote or by equivalent free voting procedures”. This provision, right to participate freely in the government of his country, by adhering to the principle of universal and equal suffrage, either directly or through freely chosen representatives in clearly indicates that the right to vote is given to persons accordance with the provisions of the law.” The provisions of regardless of their status. Article 13(1) of the African Charter are similar in substance to Moreover, prisoners‟ right to vote should be respected and those provided for under Article 25 of the International observed universally and equally. It is because, in UDHR, the Covenant on Civil and Political Rights.10 In interpreting sates have already pledged for the promotions Article 13(1) of the African Charter, the African Commission of universal respect for and observance of human rights and fu has endorsed the clarification provided by the Human Rights ndamental freedoms. 7 Committee in relation to Article 25. 2.2. ICCPR The African human rights commission has best explained The International Covenant on Civil and Political Rights the universality of the right to vote in the Gambia case.11 In (“ICCPR”) codifies the right to vote under Article 25 as this case, the Complainants alleged that legislation governing follows: mental health in the Gambia is outdated and violates Articles Every citizen shall have the right and the opportunity, 2, 3, 5, 7(1) (a) and (c), 13(1), 16 and 18(4) of the African without any of the distinctions … and without unreasonable Charter on Human and Peoples‟ Rights. The commission, after restrictions: communicating complains to the respondent state and (a) To take part in the conduct of public affairs, directly or declaring the admissibility of complains, has adjudicated over through freely chosen representatives; the merit of the case. In the adjudication, under Para.76, the (b) To vote and to be elected at genuine periodic elections this commission has put the following important synthesis. shall be by universal and equal suffrage and shall be held by “The right provided for under Article 13(1) of the African secret ballot, guaranteeing the free expression of the will of the Charter is extended to “every citizen” and its denial can only electors; be justified by reason of legal incapacity or that the individual (c) To have access, on general terms of equality, to public is not a citizen of a particular State. Legal incapacity may not service in his country. necessarily mean mental incapacity. For example a State may Moreover, the General Comment 25 to the ICCPR emphasizes fix an age limit for the legibility of its own citizens to that "no distinctions are permitted between citizens8 in the participate in its government.