61 Court’s judicial review jurisdiction had, therefore, been wrongfully invoked. 3.3.1.3 In South Africa, the Constitutional Court has found that citizens who are registered as voters and are abroad on polling day are entitled to vote, provided they give notice of their intention to do so in order to facilitate planning (Richter v Minister of Home Affairs and Others, Democratic Alliance & Others Intervening, CCT 09/09 [2009] ZACC 3). 3.3.1.4 The IEBC is required to publish, at regular intervals, the names of countries where registration and voting is scheduled to take place. The determination of these registration centres is based on the presence of a Kenyan Embassy, High Commission or Consulate (Regulation 34(2), Elections (Registration of Voters) Regulations 2012); the number of citizens registered with Kenyan missions in the host countries; whether the political environment is conducive, stable and predictable; and financial sustainability to support logistical, operational and administrative costs of carrying out the activity. 3.3.1.5 To ensure viability of these voting centres, the IEBC has set a threshold of 3000 voters before a registration centre can be established. In 2017, the IEBC facilitated citizens residing in Uganda, Tanzania, Rwanda, Burundi and South Africa. Then, in 2022, United Arab Emirates, United States of America, United Kingdom, Germany, Canada, Qatar and South Sudan were added to the list, bringing the total to 11 countries. However, Kenyan diaspora voters’ participation is limited to presidential elections and referendums (Regulation 39, Elections (Registration of Voters) Regulations, 2012). 3.3.2 Prisoners 3.3.2.1 The Constitution does not bar prisoners, other than those convicted of election offences, from being registered as voters. Prisoners who are not convicted of election offences have a right, therefore, to be registered as voters and to vote in elections and referenda (Priscilla Nyokabi Kanyua v Attorney General & Another, Interim constitutional Dispute Resolution Court Nairobi Constitutional Petition No. 1 of 2010; and Sauvé v Canada (Chief Electoral Officer) (2002) 3 SCR 519, 2002 SCC 68). Further, Article 51 of the Constitution provides that ‘a person who is detained, held in custody or imprisoned under any law, retains all the rights and fundamental freedoms in the bill of Rights, except to the extent that any right or fundamental freedom is clearly incompatible with the fact that the person is detained, held in custody or imprisoned’. 3.3.2.2The right to vote is not ‘clearly incompatible’ with the fact of being imprisoned. Accordingly, prisoners have a right to be registered as voters and to vote in elections and referenda (Kituo Cha Sheria v IEBC & Another, Nairobi High Court Constitutional Petition No. 574 of 2012). Moreover, denying prisoners the right to vote would not serve any legitimate governmental objective or purpose (Priscilla Nyokabi Kanyua v Attorney General & Another, Interim Constitutional Dispute Resolution Court (Nairobi) Constitutional Petition No. 1 of 2010). 3.3.2.3 Since prisoners constitute a vulnerable group, the state is obliged to take positive steps to protect, promote and fulfil the enjoyment of their rights and fundamental freedoms, including the right to vote. Accordingly, it is not enough for the IEBC to merely set up voter registration centres or polling stations within or around prisons. The IEBC must go further and liaise with prison authorities to facilitate the actualisation of the right of prisoners to vote (Kituo Cha Sheria v IEBC & Another, Nairobi High Court Constitutional Petition No. 574 of 2012). In addition, the IEBC is mandated to submit an annual report to the President and Parliament, detailing the progress in realisation of the right to vote for prisoners (s 24(2)(ba), Independent, Electoral and Boundaries Commission Act). Presently, prisoners may only vote in a presidential election or a BENCH BOOK ON ELECTORAL DISPUTE RESOLUTION