ABSTRACT
The disenfranchisement of convicted prisoners is perhaps the ultimate dilemma in the debate on whether prisoners should enjoy human rights during (and after) incarceration (Lipke, 2002; Lazarus, 2006; Easton, 2012). Few would argue that prisoners should forgo their right to life or be subjected to torture or other ill treatment during their sentence, although there will be deep arguments as to the extent to which human rights law and the prohibition of torture and other ill-treatment apply to prisoners with respect to the standard of prison conditions, as opposed to the deliberate physical ill-treatment of detainees. However, the enjoyment of prisoners’ democratic rights – such as the right to free speech, freedom of assembly and association, freedom of thought, conscience and religion, and, of course, the right to vote and take part in the political life and affairs of the state – splits the academic, political and public divide. Those who favour the automatic forfeiture of prisoners’ rights will advocate either that prisoners forgo their democratic rights to speech, privacy, association etc. after sentence, or that at the very least any rights that they did possess before incarceration have now become privileges, to be enjoyed at the discretion of the prison authorities and current government policy (Foster, 1997, 1998). On the other hand, those who support prisoners’ rights will cite human dignity, self-autonomy, and the retention by prisoners of civil and political rights as human beings as the reasons for retaining democratic rights; to be interfered with only within the boundaries of legitimacy and reasonableness as laid down in international human rights law (Golder v United Kingdom, 1975).
