Every Vote Counts; Everybody Counts: Prisoners' Voting Rights: When Human Rights and Politics Collide

Abstract

In December 2010, the New Zealand Parliament passed the Electoral (Disqualification of Convicted Prisoners) Amendment Act 2010. All sentenced prisoners now lose the right to vote, irrespective of the offence committed, or sentence length. This paper establishes that blanket disenfranchisement of prisoners is a retrograde step that contravenes international human rights law, and is inconsistent with human rights jurisprudence across jurisdictions. The paper identifies the links between historic and contemporary justifications for prisoner disenfranchisement. It examines the United Nation's human rights framework, major international instruments that regulate prisoners' rights, and recent jurisprudence in jurisdictions with and without a binding bill of rights. The paper establishes the essentially political contemporary arguments in favour of disenfranchisement are flawed, both as a matter of human rights principle, and as matter of pragmatic penal policy. It further establishes that prisoners' right to vote should be respected not only because it is the right thing to do (as a matter of principle), but because it is an effective way of rehabilitating offenders and reducing reoffending. The German penal system, with its focus on a rights-based approach to offender management is identified as an example of "best practice" that other jurisdictions, including New Zealand, can and should follow. The paper identifies the particular role courts can play in breaking the political deadlock over prisoners' right to vote. The Electoral (Disqualification of Convicted Prisoners) Amendment Act 2010 is assessed for consistency with the New Zealand Bill of Rights Act 1990, and found wanting. Options for challenging the law are considered.