The foundations of the right to participation are shaped by the possibility of any individual to be involved in decision-making which affects her/his interests. Everyone should be able to participate in society, to defend her/his interests, to help create a society, which also fulfils her/his interests and desires. The freedom to vote and stand for elections and the freedoms of association and assembly are the major political expressions of such participation. These rights form the bases for any representative, democratic process and active civil society, and ensure that public affairs are truly public. The right to participation in government is also intricately linked with other rights, such as the right to education and the right to freedom of conscience and religion.
The concept of participation is broader than the right to vote or the freedom of association. It entails the notion that all citizens should be involved in decision-making processes that affect them. Moreover, participation is at the core of a human rights based approach to development and to poverty reduction where the poor must be considered as the principal actors and strategic partners for development.
This chapter examines the right to vote and stand for election, and the right to freedom of association.
A. The right to vote and stand for elections
The right to elections is a composite of the right and opportunity to vote, the right and opportunity to be elected and the freedom of association, including the right to form and join organisations and associations concerned with political and public affairs, which is an essential adjunct to the right. The state holds the guarantee to the enjoyment of the right to elections and it can restrict the right on certain grounds. The Human Rights Committee has stated in its General Comment 25:
The right to vote at elections and referenda must be established by law and may be subject only to reasonable restrictions, such as setting a minimum age limit for the right to vote. It is unreasonable to restrict the right to vote on the ground of physical disability or to impose literacy, educational or property requirements. Party membership should not be a condition of eligibility to vote, or a ground of disqualification. If a conviction for an offence is a basis for suspending the right to vote, the period of such suspension must be proportionate to the offence and the sentence.
1. STANDARDS
The right to vote and stand for elections is protected in numerous instruments. Article 21 UDHR and Article 25 ICCPR both stipulate the right to vote and to be elected ‘at periodic and genuine elections, which shall be by universal and equal suffrage’ and shall be held by secret ballot or by equivalent free voting procedures, guaranteeing the free expression of the will of the electors, and that everyone has the right to equal access to public service in his or her country. Furthermore, in General Comment 25, the Human Rights Committee has emphasised the duty of the state to ensure that people entitled to vote are able to exercise that right. Interference with voting should be prohibited by penal law and the states should take measures to overcome specific difficulties impeding the free enjoyment of the right, such as language, illiteracy or poverty. Furthermore, participation and political rights form part of the right to self determination, the right of peoples to ‘freely determine their political status and to enjoy the right to chose the form of their constitution or government’. In its General Comment 25 on minority rights, the Committee has stressed that states must adopt measures to ‘ensure effective participation of members of minority communities in decisions which affect them’. Generally, the ICCPR prohibits discrimination on the grounds of citizenship; Article 25 is an exception as the right to participate in government is confined to citizens. Article 7 CEDAW stipulates the right of women to vote and to participate in political and public life.
Article 3 First Protocol ECHR and Article 23 ACHR contain similar standards regarding the right to elect and be elected. Article 13 ACHPR stipulates that ‘Every citizen shall have the right to participate freely in the government of his country, either directly or through freely chosen representatives in accordance with the provisions of the law’, and Article 20 states that ‘they shall freely determine their political status and shall pursue [?] development according to the policy they have freely chosen’.
Other standards include the Inter-American Democratic Charter (2001) that spells out the possibility of electoral missions and that ‘[e]ssential elements of representative democracy include, inter alia, respect for human rights and fundamental freedoms, access to and the exercise of power in accordance with the rule of law, the holding of periodic, free, and fair elections based on secret balloting and universal suffrage’. The Charter is a politically laden document representing the commitment of the nations of the Americas to collectively promote and defend democracy in the region.
2. SUPERVISION
The right to vote can be constrained in a myriad of ways and the international standards leave room for a wide variety of electoral systems. It is generally recognised that no single electoral method exists which is suited to all nations and peoples; election systems are complex and require close examination to ensure freedom and fairness. The Human Rights Committee has confirmed that the right enshrined in Article 25
ICCPR does not guarantee direct participation (Marshall v. Canada). It has dealt with cases regarding removal from the register of electors (Gorji-Dinka v. Cameroon) and found that drawing election districts for the same municipal council with substantial differences between the number of inhabitants per elected representative, despite the election law which required those voting districts to be proportional to the number of inhabitants, violated Article 25 (Mátyus v. Slovakia).
Cases decided by the European Court related to violations of the right to free elections have, for example, dealt with the dissolution of political parties and the termination of parliamentary mandates of members of opposition parties and their subsequent imprisonment for alleged separatist activities. The Court held that ‘the measure was incompatible with the very essence of the right to stand for election and to hold Parliamentary office and that it had infringed the unfettered discretion of the electorate which had elected the applicants’ (Sadak et al. v. Turkey). Other instances where the Court has found a violation include the prerequisite that candidates for parliamentary elections have adequate command of the official language (Podkolzina v. Latvia) and the continued suspension of the right to vote of a suspected criminal after he was acquitted (Labita v. Italy). Refusal to register the applicant on the electoral roll because he was a member of the Turkish-Cypriot community was a violation (Aziz v. Cyprus) and so is the disenfranchisement of convicted prisoners (Hirst v. The United Kingdom).
In cases regarding the legitimacy of legislation barring people in public office from standing for election, the Court has given states considerable leeway; states are permitted to establish in their constitutional order rules governing the status of parliamentarians, including criteria for disqualification. The Court has found certain restrictions reasonable and that legislation restricting the right ‘served a dual purpose that was essential for the proper functioning and upholding of democratic regimes, namely ensuring that candidates of different political persuasions enjoyed equal means of influence and protecting voters from pressure from holders of public office’ (see, e.g.,Gitonas et al. v. Greece and Ahmed et al. v. The United Kingdom).
In the Inter-American system, the Inter-American Commission has held that prohibiting a member of a former regime that was unconstitutional from standing for elections was not a violation of his electoral rights (Whitbeck v. Guatemala (Case 10.804)), but that denying an applicant the recovery of his nationality so that he could stand for elections led to a violation of his political rights. In the context of election criteria, the Commission has stated that ‘any mention of the right to vote and to be elected would be mere rhetoric if unaccompanied by a precisely prescribed set of characteristics that the elections are required to meet’ (Bravo Mena v. Mexico (Case 10.596)). The Inter-American Court has examined Article 23 ACHR in Constitutional Tribunal v. Peru.
The African Commission has dealt with communications regarding the right to political participation. The Commission has found the annulment of elections in violation of the right. It stated: ‘to participate freely in government entails, among other things, the right to vote for the representative of one’s choice. An inevitable corollary of this right is that the results of free expression of the will of the voters are respected; otherwise, the right to vote freely is meaningless’ (Constitutional Rights Project (in respect of Zamani Lakwot and 6 Others v. Nigeria, Communication 87/93). In another case, the Commission found banning political participation of former government members after a military coup in violation of their rights and the military coup itself a violation of the people’s right to freely choose their government (Sir Dawda K. Jawara v. The Gambia, Communications 147/95 and 149/96).
The right to elections depends to a large extent on compliance with positive obligations of states. If funds, capacity and political will are not in place, it is almost impossible to assure proper elections. The quality of elections has in recent years been enhanced, not only by financial support of various states, but also by the refinement of standards and approaches. In this connection, mention may be made of the special role played by the International Institute for Democracy and Elections (IDEA), an intergovernmental institute established in Stockholm that has contributed much insight into the complexities of elections.
ELECTORAL MISSIONS
In the past decade there has been a general move towards democracy on all continents, and international organisations such as the UN, OSCE, AU, OAS and EU have increasingly been concerned with the support and international observation of elections. These organisations carry out co-ordinating tasks, drafting the terms of reference of the missions, and training and supporting the observers. The international organisations also implement pre-election measures, such as the establishment of electoral registers, the training of polling officials and the financing of public awareness campaigns. These organisations often provide funds: for printing election forms, voting slips, polling station facilities and transport, as well as technical assistance and specialist advice, e.g., monitoring.
The UN is increasingly involved in electoral assistance through its Electoral Assistance Unit at the Department for Political Affairs of the UN Secretariat. In concert with existing peace forces, large-scale observation missions have been carried out.
The EU has carried out several observation operations, some independently, others in co-operation with other organisations. Following common EU deliberations, observers may be put at the disposal of other organisations, principally the OSCE but also the OAS (e.g., Haiti, Guatemala and Venezuela).
B. The right to freedom of association
The Inter-American Court has described the freedom of association as ‘the right of the individual to join with others in a voluntary and lasting way for the common achievement of a legal goal’ (Compulsory Membership in an Association Prescribed by Law for the Practice of Journalism, Advisory Opinion OC-5/85). The freedom of association allows individuals to join together to pursue and further collective interests in groups, such as sports clubs, political parties, NGOs and corporations. The freedom of association is multifaceted; it encompasses the right to form and join association freely, but in order for the right to be enjoyed, associations themselves must be free from excessive interference from governments. This entails that the right has aspects of both an individual and a collective right.
The freedom of association implies a mutual relationship; an individual does not have the right to associate with others when they do not care to associate with him/ her. The freedom of association also implies a negative aspect - the freedom not to associate. Generally, a person may not be forced to belong to an association, but associations that are necessary for the functioning of democratic society are exceptions. A person may also, in specific cases, be required to join professional associations established to ensure a certain standard of performance, such as medical associations and lawyers’ associations. The freedom to associate may not be hemmed in by laws that require associations to be officially recognised nor may government requirements for granting registration be overly stringent.
The right to form and join trade unions and its negative component, the right not to join and form unions, is a particular aspect of the right to freedom of association joined with the right to work. This right includes, for instance, the right of unions to administer their own affairs, join federations and international organisations, and draw up their own rules. It encompasses the rights of persons to be elected to and act within unions without intimidation and the right not to join without fear of retribution.
The armed forces and the police fall into a special category, as they can be restricted to a greater extent than others in their exercise of the rights to freedom of association, particularly with regard to trade union activities. The limitations placed on the rights of these groups are not meant to deny them the enjoyment of the rights, but solely to limit their choices of associations.
Closely related to the freedom of association is the right to strike. The right to strike is one of the most important tools trade unions can apply to protect their interests, but it has to be exercised in conformity with relevant national law. A general prohibition of strikes for public employees may be considered an excessive restriction on the possibilities open to trade unions to further their interests.
1. STANDARDS
The UDHR sets out that ‘everyone has the right to freedom of peaceful assembly and association’, that ‘no one may be compelled to belong to an association’ and that ‘everyone has the right to form and join trade unions’ (Article 20).
Article 22 ICCPR draws from the Universal Declaration, but allows for possible restrictions to the right. Restrictions must be ‘prescribed by law, necessary in a democratic society, in the interest of national security or public safety, public order, the protection of public health or morals or the protection of the rights and freedom of others’. The article also allows for the imposition of lawful restrictions on members of the armed forces and of the police in their exercise of the right to association. Article 8 ICESCR sets out the right to form trade unions, the rights of trade unions to form federations, the rights of trade unions to function freely though subject to certain limitations and the right to strike. Article 15 CRC stipulates the right of children to freedom of association with similar limitations. Article 26 CMW recognises the right of migrant workers to join and seek the aid and assistance of trade unions.
In a similar vein, Article 11 ECHR sets out the right to freedom of assembly and association, as well as the right to form and join trade unions. Article 5 ESC sets out the right to organise, but the negative freedom not to join is not mentioned. The ECHR also reserves the right for states parties to restrict the political activities of aliens. Article 16 ACHR sets out the right and its limitations and Article 8 Protocol of San Salvador sets out the right to form and join trade unions.
Article 10 ACHPR stipulates simply that ‘every individual shall have the right to free association provided that he abides by the law’ and that no-one may be compelled to join an association; but paragraph 2 of the Article setting out the right is unique as it subjects the right not to join to specific obligations of solidarity set out in Article 29 of the Charter.
Many ILO Conventions deal with the right to association, for example, ILO 87 concerning the Freedom of Association and Protection of the Right to Organise (1948) and ILO 98 concerning the Application of the Principles of the Right to Organise and to Bargain Collectively (1949).
2. SUPERVISION
States parties are allowed some measure of discretion concerning the freedom of association, that is, in the interests of national security, public order and the rights and freedoms of others. These grounds for exemption must be interpreted narrowly by states seeking to invoke them and have often generated case-law before the various supervisory mechanisms.
The Human Rights Committee has not dealt with many cases regarding freedom of association. It has found that restriction to the freedom by banning a fascist political party, presumably for public order and national security, was compatible with the ICCPR (M.A. v. Italy), The Committee has found violations of the freedom when trade-union activists have been subject to harassment by authorities because of their trade-union activities (Lopez Burgos v. Uruguay) and it has expressed concern over onerous registration regulations for NGOs and trade unions, stating that such requirements may not be so burdensome as to result in restrictions on the right to freedom of association. The Committee has interpreted (with strong dissent) the ICCPR so that the right to strike is not included in the scope of Article 22 ICCPR, while it enjoys protection under the procedures and mechanisms of the ICESCR subject to the specific restrictions set out in that Convention (J. B. et al. v. Canada).
The European system has mainly dealt with cases either relating to restrictions on certain associations or the negative aspect of the freedom of association, the right not to join. It has found violations in cases regarding, e.g., a state’s refusal to register a suspected subversive association and dissolution of an opposition political party. The Court has similarly dealt with the negative aspect of the freedom of association, ruling that compulsory membership of a professional organisation, contrary to a person’s conviction, is an infringement of the right to freedom of association (Sidiropoulos et al. v. Greece) as is the obligation to join a trade union as a condition of employment (Sørensen and Rasmussen v. Denmark); the Court has found, however, that banning police from participation in political activity was not in violation of the right (Rekvényi v. Hungary). The Court has found unlawful refusal to grant permission for a march and meetings to protest against homophobia a violation of the right to assembly (Bączkowski and others v. Poland).
Within the Inter-American framework, the Inter-American Court has dealt with this issue in an advisory opinion on the compulsory membership of an association for the practice of journalism. It observed that: ‘it would be against all reason to interpret the word freedom as a ‘right’ only and not as the ‘inherent power that man has to work in one way or another, or not to work’ according to his free will’ and that preventing specific individuals from joining an association violated their right to freedom of expression in that it denied them the use of the media as means of expression and to impart information. The Court has also passed a ruling on the violation of human rights of nearly 300 workers/union leaders, fired from state owned companies because of their union activities (Baena Ricardo et al. (270 workers) v. Panama).
The African Commission has decided cases where the right to association has come into play. The Commission has, for instance, found illegal deportation of prominent political figures a violation of the right to freedom of association (Amnesty International v. Zambia, Communication 212/98), it has found the right to freedom of association violated when the state unjustly tried and convicted members of a community organisation (International Pen, Constitutional Rights Project, Interights on behalf of Ken Saro- Wiwa Jr. and Civil Liberties Organisation v. Nigeria, Communications 137/94, 139/94, 154/96 and 161/97), and that a governmental decree establishing a governing body for a bar association appointing the majority of nominees itself violated the freedom of association (Civil Liberties Organisation in Respect of the Nigerian Bar Association v. Nigeria, Communication 101/93).
As the right to freedom of association is intricately linked with labour rights, the ILO has put in place special mechanisms to supervise freedom of association. A special procedure was established by the ILO in 1950 following an agreement with the ECOSOC. The procedure is founded on the submission of complaints that may be made by governments or by employers’ or workers’ organisations. It may be applied even against states that have not ratified the Conventions on Freedom of Association (ILO 87 and ILO 98). The machinery is comprised of two bodies. One is the Committee on Freedom of Association, which receives complaints submitted by governments and employers’ and workers’ organisations and a so-called ‘direct contacts’ procedure may be employed where the Committee can initiate in loco visits. The findings (conclusions and recommendations) of the Committee are submitted to the Governing Body of the ILO (see II§1.D).
The other body is the Fact-Finding and Conciliation Commission on Freedom of Association that examines complaints of infringement of trade union rights referred to it by the ILO’s Governing Body in respect both of countries that have ratified the Freedom of Association Conventions and of those which have not, although in the latter case referral may not be made without the consent of the country concerned. The Commission may also examine complaints of violations of freedom of association against non-member states of the ILO when such complaints are forwarded to it by the UN and the country consents. Not many complaints have been examined under this procedure (see II§1.D).
The ILO complaints mechanisms include provisions to ensure implementation of the final decision. The most important of these provisions is the publication of the decision. It has turned out to be an effective tool, even if legally and formally it does not appear very severe.