(Re)claiming the Right to Vote: Prisoner disenfranchisement and Māori political equality

Abstract

This thesis considers whether legal mechanisms can assist in the enfranchisement of Māori prisoners. The Electoral (Disqualification of Sentenced Prisoners) Amendment Act 2010 (the Amendment Act) deprived all sentenced prisoners of the right to vote. The disenfranchisement of Māori prisoners must be understood within the wider whakapapa of Māori political marginalisation. Therefore, this analysis is socially and historically situated. It is argued that the main justification for the Amendment Act, that disenfranchisement is a consequence of the prisoner’s breach of the social contract, and the underlying justifications in citizenship and penal theory, do not withstand scrutiny. Rather, the disproportionate disenfranchisement of Māori prisoners exemplifies the colonial state’s performance of the racial contract – the pervasive social, economic, and political marginalisation of Māori by the Pākehā colonial state. The rights of political participation guaranteed by the treaty of Waitangi are considered. It is argued that the Waitangi Tribunal might rightly find the Amendment Act breached the principles of the treaty in respect of both article three equal citizenship rights, and article two rights to exercise tino rangatiratanga. The human rights analysis focuses on the right to be free from discrimination. It is argued that a claim under Part 1A of the Human Rights Act 1993, seeking a declaration that the disenfranchising provision is inconsistent with the right of Māori to be free from discrimination in accordance with s 19 of the New Zealand Bill of Rights Act 1990, could be established. Similarly, it is argued a communication to the United Nations Human Rights Committee alleging a breach of the International Covenant on Civil and Political Rights on this basis may also be established. Finally, the efficacy of these legal mechanisms as a means to (re)enfranchise Māori prisoners is considered. There are significant shortcomings in pursuing the right to vote through litigation in the context of the indivisible sovereignty of the colonial state, the supremacy of the majority Pākehā Parliament and the wider marginalisation of Māori. However, it is concluded that the legal mechanisms discussed may legitimise demands for reform amongst the populace and foster political will to effect such reform. Finally, these mechanisms provide Māori prisoners with a means of resistance and political participation that they are otherwise denied.