30/26 Promotion, protection and implementation of the right to participate in public affairs in the context of the existing human rights law: best practices, experiences, challenges and ways to overcome them - Report of the Office of the United Nations High Commissioner for Human Rights

Human Rights Council Thirtieth session

Agenda items 2 and 3

Annual report of the United Nations High Commissioner

for Human Rights and reports of the Office of the

High Commissioner and the Secretary-General

Promotion and protection of all human rights, civil,

political, economic, social and cultural rights,

including the right to development

Promotion, protection and implementation of the right to participate in public affairs in the context of the existing human rights law: best practices, experiences, challenges and ways to overcome them

Report of the Office of the United Nations High Commissioner

for Human Rights

Summary

The present study identifies challenges to the right to political and public

participation and ways to overcome those challenges. It provides examples of best practices

and experiences with respect to the implementation of the right to participate in political

and public affairs. It also makes recommendations drawn from the contributions received as

well as from other available sources.

The study should be read in conjunction with the report on factors that impede equal

political participation and steps to overcome those challenges (A/HRC/27/29), which

examines the human rights framework and jurisprudence of United Nations human rights

mechanisms in relation to participation in political and public affairs.

Contents

Page

I. Introduction ...................................................................................................................................... 3

II. Human rights framework relating to equal participation in political and public affairs .................. 3

III. Challenges to the right to participate in political and public affairs ................................................. 5

A. General challenges to participation in political and public affairs ........................................... 6

B. Challenges affecting women and specific groups .................................................................... 7

IV. Best practices and experiences with respect to the right to participate

in political and public affairs ............................................................................................................ 10

A. Right to vote and to be elected ................................................................................................. 10

B. Participation in the conduct of public affairs ........................................................................... 11

C. Right to equal access to public service .................................................................................... 12

D. Other forms of political and public participation ..................................................................... 13

E. Best practices with regard to women and specific groups ....................................................... 13

V. Conclusions and recommendations .................................................................................................. 17

I. Introduction

1. The Human Rights Council, in its resolution 27/24, requested the Office of the

United Nations High Commissioner for Human Rights (OHCHR) to prepare a study on best

practices, experiences and challenges and ways to overcome them with regard to the

promotion, protection and implementation of the right to participate in public affairs in the

context of the existing human rights law, with a view to identifying possible elements of

principles guiding the implementation of that right, in consultation with States, relevant

United Nations agencies, intergovernmental organizations, the treaty bodies, the special

procedures, national human rights institutions, non-governmental organizations and other

relevant stakeholders. Notes verbales were sent to all relevant stakeholders on 16 January

2015 and 66 responses were received. The contributions from stakeholders are available on

the OHCHR website.1

2. Pursuant to the request made by the Council, the present study identifies challenges

to political and public participation, presents ways to overcome those challenges and

provides examples of experiences and best practices in that regard. It also draws

conclusions from the contributions received from stakeholders, as well as from information

from other sources, with a view to identifying elements guiding the implementation of the

right to participate in public affairs.

3. The study, in particular sections II and III, should be read in conjunction with the

report on factors that impede equal political participation and steps to overcome those

challenges (A/HRC/27/29), which thoroughly examines the human rights framework and

the jurisprudence of United Nations human rights mechanisms in relation to participation in

political and public affairs.

II. Human rights framework relating to equal participation in political and public affairs

4. Participation is a hallmark of democracy. It entails timely consultation so as to

legitimize the exercise of State power. As articulated in article 25 of the International

Covenant on Civil and Political Rights, the right to participation encompasses the rights of

the individual to vote and to be elected; to take part in the conduct of public affairs; and to

have access to public service. Other international human rights treaties contain similar

provisions, which complement the Covenant.2

5. In its interpretation of the obligations of States under article 25 of the Covenant, the

Human Rights Committee requires that positive measures be adopted to ensure the full,

effective and equal enjoyment of participatory rights, including through inclusive,

meaningful and non-discriminatory processes and mechanisms.3 States also should

guarantee full and effective access to justice and redress mechanisms to people who have

been unduly deprived of their right to participate in political and public affairs.4

1 SeeError! Hyperlink reference not valid..

2 See A/HRC/27/29, para. 8.

3 A/HRC/27/29, para. 12 and Human Rights Committee, general comment No. 25 (1996) on the right

to participate in public affairs, voting rights and the right to equal access to public service, paras. 12,

26 and 27. See also A/HRC/27/51, para. 61 and A/HRC/23/36, para. 24.

4 See A/HRC/27/29, para. 16.

6. The Human Rights Committee’s general comment No. 25 on article 25 of the

Covenant, as well as jurisprudence adopted by the Committee and other treaty bodies

provide guidance on the measures that States should take to implement the right to

participate in political and public affairs. In recent years, there has been a progressive

evolution of international human rights law and jurisprudence regarding the scope of this

right, which has led many stakeholders to call for a revision of general comment No. 25.5

7. Free and fair elections constitute an imperative means of giving voice to the will of

the people. Article 25 (b) of the Covenant recognizes the right of every citizen to vote and

to be elected at genuine periodic elections which shall be by universal and equal suffrage,

thereby underlining the importance of inclusivity and equality. The Human Rights

Committee has clarified the essential elements of this right. Notably, it requires that States

parties, in fulfilling their obligations under article 25 (b) of the Covenant, take positive

measures to ensure the full, effective and equal enjoyment of electoral rights, without

discrimination, as well as the freedoms of expression, information, assembly and

association. Those are essential conditions for the effective exercise of the right to vote and

must be fully protected.6

8. Wide-reaching restrictions or deprivations of electoral rights may not be compatible

with guarantees of equality and non-discrimination under international law.7 The Human

Rights Committee notes that the right to vote may be subject only to reasonable restrictions,

such as setting a minimum age limit to vote. The Committee also notes that any restrictions

on the right to stand for election must be justifiable on objective and reasonable criteria.8 In

that regard, it states that any abusive or discriminatory interference with the registration of

voters or candidates for public office and other elements of the electoral process should be

prohibited by criminal law and that effective access to justice and appropriate remedies

should be guaranteed for people who have been deprived of their political rights.9

9. International human rights instruments and mechanisms acknowledge the right of all

people to be fully involved in and to effectively influence public decision-making processes

that affect them. To ensure full and effective participation in political and public affairs on

an equal basis, participatory mechanisms and processes must conform to certain principles.

First of all, participatory mechanisms should be established by law10 and all stakeholders

must have access to information in a timely and transparent manner, which implies that

State authorities must make every effort to ensure easy, prompt, effective and practical

access to information of interest to the public.11 Participation mechanisms and processes

should be sufficiently resourced, non-discriminatory, inclusive and designed so that

concerned groups, even the most marginalized, have the opportunity to voice their opinions.

5 See the contributions from International Disability Alliance, the European Centre for Not-for-Profit

Law and the International Institute for Democracy and Electoral Assistance (International IDEA).

Calls for a revision of general comment No. 25 were also made by The Carter Center and Democracy

Reporting International, Strengthening international law to support democratic governance and

genuine elections (April 2012).

6 See Human Rights Committee, general comment No. 25, paras. 12, 26 and 27 and A/HRC/27/29,

para. 12.

7 See A/HRC/27/29, para. 10.

8 Human Rights Committee, general comment No. 25, paras. 10 and 15.

9 Ibid., paras. 10–13; also A/HRC/27/29, para 16.

10 Human Rights Committee, general comment No. 25, para. 5.

11 See Human Rights Committee, general comment No. 34 (2011) on freedoms of opinion and

expression (art. 19), para. 19.

10. Public participation rights encompass the right to be consulted at each phase of

legislative drafting and policymaking; to voice opinions and criticism; and to submit

proposals aimed at improving the functioning and inclusivity of all State bodies.12

11. Participation requires a long-term and genuine commitment to engage in processes

of intensive dialogue regarding the development of policies, programmes and measures in

all relevant contexts.13 The Economic Commission for Europe Convention on Access to

Information, Public Participation in Decision-making and Access to Justice in

Environmental Matters is a good example of the recognition of the right to participation. It

links environmental rights with human rights, in particular the right to participation, and is

based on three pillars – access to information, public participation in decision-making and

access to justice in environmental matters.14

12. Article 25 of the International Covenant on Civil and Political Rights also

recognizes the right and the opportunity of citizens to have access, on general terms of

equality, to public service. To ensure equal access, the criteria and processes for

appointment, promotion, suspension and dismissal must be objective and reasonable.

Affirmative measures may be taken in appropriate cases to ensure that there is equal access

to public service for all citizens.15

13. Participation in political and public affairs underpins the realization of all human

rights and is inextricably linked to them. It cannot be considered in a vacuum without

taking into consideration structural issues such as poverty or literacy levels. States’

contribution to this study confirm that the respect and full exercise of the rights to freedoms

of opinion and expression, association and peaceful assembly, and the rights to information,

education and access to justice, are prerequisites to an enabling environment for

participation in the conduct of political and public affairs.16 Closing the “digital divide” is

also essential to give full effect to the right to participate in political and public affairs,

notably to allow disadvantaged groups to obtain information and express their grievances

by using new communications technologies.17

III. Challenges to the right to participate in political and public affairs

14. Restrictions to the right to participate in political and public affairs, while

permissible, must be objective, reasonable, non-discriminatory and provided for by law.18

As with other political rights, such as freedoms of assembly and association, opinion and

expression, any restrictions must be necessary and proportionate. The “essence” of the right

12 See Convention on the Rights of Persons with Disabilities; Declaration on the Right and

Responsibility of Individuals, Groups and Organs of Society to Promote and Protect Universally

Recognized Human Rights and Fundamental Freedoms, art. 8; also A/HRC/13/23, paras. 31–33 and

52.

13 A/HRC/23/36, paras. 26 and 79.

14 Economic Commission for Europe, The Aarhus Convention: an implementation guide (New

York/Geneva, 2000) p. 19.

15 A/HRC/19/36, para. 12.

16 A/HRC/27/29, paras. 22–30.

17 A/HRC/17/27, paras. 60–66.

18 Human Rights Committee, general comment No. 25, para. 4.

should never be affected.19 Several international human rights mechanisms have

emphasized that limitations should remain the exception rather than the rule.20

15. Limiting political participation on the grounds of intellectual or psychosocial

impairment and the imposition of linguistic requirements for candidates for public office or

the automatic disenfranchisement of detainees, convicted felons or people under

guardianship have been found by human rights mechanisms to constitute unreasonable and

discriminatory restrictions on the exercise of political and public participation rights.21

A. General challenges to participation in political and public affairs

Shrinking of the democratic space

16. Lack of political will or deliberate strategies to monopolize decision-making by

those in power are among the main challenges to the realization of participation rights. In

many instances, laws are enacted and applied arbitrarily to deny participation and

intimidation and persecution are employed to pressure individuals to decide in a particular

way.22 In many countries, persons and organizations engaged in promoting and defending

human rights face threats, harassment and insecurity, including when advocating for the

right to participate in political and public affairs. The absence of free, pluralistic and

independent media also jeopardizes the realization of participation in political and public

affairs, since the media can be crucial in making citizens aware of their rights.

17. The shrinking of the democratic space has also been considered by human rights

experts as threatening the full enjoyment of civil and political rights and resulting in

ordinary people’s lives being changed without their input and against their will.23 Some

States impose not only legal but also practical barriers to participation, notably by

restricting the Internet and the flow of information online through increasingly

sophisticated means. Mass surveillance, the interception of digital communications and the

collection of personal data is another chilling factor on public participation, especially when

those measures target political dissidents.24

General decline in traditional forms of political participation

18. It has been noted by some organizations that voter turnout at general elections in

established democracies has declined steadily over a number of decades in the population

as a whole,25 with youth absenteeism being the highest.26 Many States are also experiencing

declining levels of membership in political parties and interest groups. Election results do

19 See, for example, Human Rights Committee, general comment No. 27 (1999) on freedom of

movement (art. 12), paras. 11–18.

20 See, for example, A/HRC/20/27, para. 16; and A/66/290, paras. 12 and 17.

21 Human Rights Committee, general comment No. 25, paras. 10 and 15; and A/HRC/27/29, paras. 32

and 33; also CRPD/C/TUN/CO/1, para. 35; and CRPD/C/ESP/CO/1, para. 47.

22 See the statement by the United Nations High Commissioner for Human Rights, on “Inclusion and the

right to participate in public life”, 10 December 2012, available at http://www.ohchr.org/en/

NewsEvents/Pages/DisplayNews.aspx?NewsID=12865&LangID=E.

23 A/HRC/25/55, para. 59; also “‘Shrinking’ spaces for citizens threatened democracy, human rights -

experts tell Third Committee as it considers country reports”, United Nations press release, 28

October 2014 (GA/SHC/4112).

24 A/HRC/27/37, para. 14.

25 International IDEA, Voter turnout since 1945: a global report (Stockholm, 2002), p. 85.

26 See contribution from the Organization for Security and Cooperatin in Europe, Office for Democratic

Institutions and Human Rights (OSCE-ODIHR), pp. 8–9.

not always correspond to the wishes of the electorate and political parties around the world

have struggled to effectively address economic and other issues of primary interest, leaving

individuals feeling disillusioned with what they see as increasingly empty campaign

slogans.27 This lack of trust in political parties, owing notably to democratic shortcomings

in their internal structures, has negatively translated into a lower level of public trust in

State institutions.

Structural inequalities

19. Some individuals or groups are often denied the opportunity to participate in the

conduct of public affairs because of socioeconomic inequalities. Individuals and groups

concerned are confronted with a vicious circle: the greater the inequality, the less the

participation; the less the participation, the greater the inequality. This perpetuates the

privilege of the elite who may be the only ones able to influence formal and informal

processes directly.28

20. Lack of decision-making power is a universal and basic characteristic of

underrepresented and marginalized groups. Their right to participate in political and public

affairs is hampered by multiple compounding obstacles. Discrimination and stigma, poverty

and mistrust of authorities all limit the possibilities and incentives for individuals belonging

to such groups to participate fully in society and make them particularly vulnerable to

corruption or co-option.29

21. While the general right to participate in political and public affairs is a prerequisite

of democracy, it is not, in itself, sufficient. Processes need to be put in place to ensure that

all segments of society are able to influence agenda-setting and decision-making. Pro forma

participatory processes only reinforce existing power structures and the feeling of

exclusion.30

22. In some cases, private corporations and lobby groups take precedence over other

less-resourced and less-organized voices. The Independent Expert on the promotion of a

democratic and equitable international order recently denounced secret negotiations of free

trade and investment agreements as being a threat to human rights since they exclude key

stakeholder groups from the process. He warned that the reality of economic, political and

military imbalance leads to pressures on the weak that have little choice but to bend to

various forms of coercion threats, sanctions or carrot-and-stick practices.31

B. Challenges affecting women and specific groups

23. Various social groups face specific challenges and discrimination. Intersecting and

compound forms of discrimination have an especially devastating effect on the right to

participate in political and public affairs. Roma women, for example, have been denied

access to political and public participation rights on the grounds of their minority status,

citizenship and gender. People living in poverty experience discrimination, not only on the

grounds of poverty itself, but also due to membership in other disadvantaged groups, such

as indigenous peoples, non-nationals or people living with HIV/AIDS.

27 A/HRC/24/38, para. 16.

28 A/HRC/23/36, para. 14.

29 Ibid., paras. 12 and 13.

30 A/HRC/23/36, para. 72.

31 A/HRC/24/38, para. 27; also OHCHR, “Secret negotiations on trade treaties, a threat to human rights”, press release,

23 April 2015, available at www.ohchr.org/EN/NewsEvents/Pages/DisplayNews.aspx?NewsID=15883&LangID=E.

Women

24. In its general recommendation No. 23 (1997) on political and public life, the

Committee on the Elimination of Discrimination against Women identified a number of

barriers to the equal participation of women in political and public life, including traditional

cultural values and religious beliefs, absence of social services, violence against women,

women’s economic dependence on men, negative societal attitudes towards women and

harmful gender stereotyping. The Committee further noted that women were excluded from

top-ranking positions in Government, the civil service, public administration, the judiciary

and justice systems. As of 1 May 2015, the average proportion of women in parliaments

worldwide was a mere 22.1 per cent.32

25. The Working Group on the issue of discrimination against women in law and in

practice identified other obstacles to women’s participation in political and public affairs,

such as unwillingness of political parties to place women in realistic positions on their

candidates lists; the fact that women tend to have fewer resources than men for election

campaigns; attacks, threats and sexual harassment against women candidates; and non-

recognition of the right of peaceful assembly and freedom of association. At the same time,

women who are outspoken as leaders, community workers and politicians often face

harassment and stigmatization, as they are perceived as undermining traditional family

values.33 Furthermore, women human rights defenders are exposed to gender-specific

threats and violence, including gender-based verbal abuse, sexual abuse or rape,

intimidation and murder.34

Indigenous peoples

26. In its advice No. 2 (2011) on indigenous peoples and the right to participate in

decision-making (see A/HRC/18/42, annex), the Expert Mechanism on the Rights of

Indigenous Peoples notes that indigenous peoples are among the most excluded,

marginalized and disadvantaged social groups in the world. Discrimination against

indigenous peoples has had a negative impact on their ability to freely determine the

direction that their own communities should take as well as their ability to have control

over natural resources and to participate in decision-making with regard to matters that

affect their human rights, including legislation.

27. In her 2014 annual report, the Special Rapporteur on the rights of indigenous

peoples identified several obstacles that affect the ability of indigenous peoples to fully

enjoy their right to participate in political and public affairs, including the failure or

reluctance of governments to recognize indigenous peoples; challenges in the development

of practical implementation measures; ongoing negative attitudes towards indigenous

peoples on the part of broader societies in which they live; and social and economic

conditions preventing the full exercise of indigenous peoples’ human rights.35

Minorities

28. The Declaration on the Rights of Persons Belonging to National or Ethnic, Religious

and Linguistic Minorities affirms the right of minorities to participate effectively in

cultural, religious, social, economic and public life.36 Yet, such persons remain

underrepresented in the political and public processes and governing institutions in most

32 See www.ipu.org/wmn-e/world.htm.

33 A/HRC/23/50, paras. 53–76.

34 A/HRC/25/55, para. 99.

35 See A/HRC/27/52, para. 11.

36 E/CN.4/Sub.2/AC.5/2005/2, paras. 42–44.

countries. They are either actively or intentionally restricted from participation or there is a

lack of political will to dismantle structural barriers to their full participation.37

29. Institutional discrimination can lead to multiple disfranchisements. For example, in

many countries there is evidence of overrepresentation of minorities in the criminal justice

system. Coupled with restrictions on the right of prisoners to vote, this has a

disproportionate impact on the realization of the right of minority groups to participate in

political and public affairs.38 In many cases, minorities also face systemic discrimination in

access to civil registration and identity documentation, which further impedes the

realization of their right to participate.

Persons with disabilities

30. Some persons with disabilities are unable to participate fully in political and public

affairs owing to their legal status, lack of access to information and prejudicial attitudes. In

its general comment No. 1 (2014) on equal recognition before the law (art. 12), the

Committee on the Rights of Persons with Disabilities, noted that restrictions to legal

capacity have been used to exclude persons with disabilities from political participation,

especially the right to vote. Some States have an automatic or quasi-automatic exclusion

provision in their legislation, denying the right to political participation for all people under

a protective measure, regardless of their actual level of functional ability.39

31. Furthermore, even when there are no legal obstacles to participation of persons with

disabilities, such participation is often hampered by an inhospitable environment and

practical restrictions, such as inaccessible polling stations, lack of information, campaign

material in accessible formats and a general high level of prejudice.40

Other vulnerable groups

32. Non-citizens, including migrants, refugees and stateless persons seldom have a voice

in the public and political affairs of their country of residence. The Special Rapporteur on

the human rights of migrants noted that groups of migrant origin were frequently

underrepresented in the political process even when most of their members were nationals,

and that effective citizenship depends on structural opportunities for participation and

widespread disposition to use them.41

33. Discriminatory requirements or overly restrictive conditions for obtaining

citizenship often impede effective participation. In many States, citizenship is unduly

denied to minorities, long-term residents, foreign family members of citizens, stateless

persons and other groups. Non-citizens, migrants, and refugees are also frequently denied

participation in the public and political affairs of their countries of origin, which creates a

double disfranchisement.42

34. Homeless persons and internally displaced persons live on the margins of society

and often face discrimination and lack of access to information. In addition, administrative

37 See A/HRC/13/25, para. 6; and the Durban Declaration and Programme of Action, adopted at the

Durban Review Conference, held in Geneva from 20 to 24 April 2009.

38 See CCPR/C/USA/CO/3/Rev.1, para. 35.

39 A/HRC/19/36, para. 38.

40 See contribution from the International Disability Alliance.

41 See A/HRC/17/33, para. 65.

42 Ibid., paras. 65–69.

restrictions, such as proof of residence or identity documents requirements, are likely to

prevent them from exercising their right to vote.43

35. Lesbian, gay, bisexual, transgender and intersex individuals around the world face

multiple obstacles to assert their right to participate in the conduct of public affairs

including as a result of discrimination, stigma, violence, legal sanctions and arbitrary

restrictions on their freedom of expression, association, and peaceful assembly on the basis

of sexual orientation, gender identity or gender expression.44 In addition, since identity

documents are a pre-requisite to effective enjoyment of many human rights, including

electoral rights, transgender persons who are unable to obtain identity documentation that

reflects their preferred gender are de facto disfranchised.45

IV. Best practices and experiences with respect to the right to participate in political and public affairs

36. This section compiles best practices and experiences as reported by States, as well as

from other sources, on different forms of political and public participation. Public

participation processes have a number of benefits, including improved quality of policy and

legislative decisions that are reflective of real needs and enriched with firsthand experience

and expertise; enhanced potential for their successful implementation; and ultimately,

increased public trust in State institutions.46

A. Right to vote and to be elected

37. The features of electoral systems, including candidate lists, district size and

threshold levels, can have a major impact on inclusiveness and on the number of persons

from underrepresented groups elected to office.47 Ghana reported that its Representation of

the Peoples Law provided for dividing the country into smaller political units to facilitate

public participation. In an effort to facilitate voting for all individuals concerned, many

States have adopted alternative ways of voting, such as mobile polling stations, postal

voting, and advance voting. Australia deploys remote mobile polling teams across the

country — by road, air and sea — so that people in remote areas, including indigenous

communities, can vote. Poland created separate electoral districts at hospitals, social

welfare facilities, detention facilities and students’ halls of residence.

38. Electronic voting, if accessible and when guaranteeing the secrecy of the ballot, may

also contribute to breaking down the barriers hindering political participation, notably of

persons with disabilities, and to increasing turnout. In Estonia, all voters can vote

electronically in any election from their homes or another location anywhere in the world.

The electronic voting website also provides support for persons with visual impairments.

39. Many States have adopted quotas for underrepresented groups to attenuate

conditions that perpetuate substantive inequalities. In recent years, gender quotas have been

introduced in countries where women historically had limited participation in politics, as in

43 Human Rights Committee, general comment No. 25, para. 11; see also contribution from

International Organization for Migration, pp. 2–3. 44 A/HRC/29/23, paras. 48–49, 60–63.

45 See contribution from the Legal Resources Centre; and A/HRC/29/23, paras. 69 and 70.

46 See contributions from the European Centre for Not-for-Profit Law and International IDEA.

47 See contribution from United Nations Department of Political Affairs/Electoral Assistance Division.

See also International IDEA, Overcoming Political Exclusion: Strategies for marginalized groups to

successfully engage in political decision-making (Stockholm, 2013), p. 16.

Afghanistan and Jordan. Quotas work best when accompanied by sanctions if they are not

respected and when they are closely monitored by independent bodies, including national

electoral bodies and human rights institutions.48 Once elected, it is crucial that individuals

belonging to marginalized groups have equal opportunity to exercise power and authority.49

This can be partly achieved through training in political debate and negotiation techniques

and confidence-building measures.50

B. Participation in the conduct of public affairs

40. Full and effective participation in political and public affairs is best ensured when it

rests on a solid legal basis. Hungary, Lithuania, Romania and Bulgaria have adopted laws

on public participation, which require government officials to consult those affected and to

take their views into consideration when making decisions. The Finnish Constitution states

that public institutions must promote all possibilities for individuals to participate in social

matters and to influence the decisions that affect them. In the Plurinational State of Bolivia,

the 1994 Law of Popular Participation has enabled several initiatives emanating from the

communities to translate into municipal public policies.51

41. Exercise of the right to participation further depends on transparency and on access

to complete information. Information that is free of charge, relevant, up-to-date,

understandable and made available well in advance of any participatory process enables

individuals and communities to make informed choices.52 Poland has adopted several laws

obliging State institutions to publish all draft laws and regulations that are being considered

by the Government.53 In Greece, every municipality has the obligation to have an official

website on which all decisions issued by the municipal organs are posted. In the United

Kingdom of Great Britain and Northern Ireland, the Freedom of Information Act (2000)

entitles any person to make a request for information to a public authority, which has to

convey the information no later than 12 days following the date of receipt of the request.54

In some States, including Costa Rica, Estonia, Finland and France, access to the Internet is

recognized as a right.55 The right to information is best guaranteed when it is made

available in a manner accessible to the most disadvantaged, taking into account the

constraints they suffer, including illiteracy, language barriers and the “digital divide”. In

Argentina, indigenous peoples have dedicated radio and television stations, which

broadcast information in their languages.

42. Several States have put in place consultative mechanisms which involve

organizations of underrepresented groups in the development of legislation and policies.

Georgia indicated that it also sought international expertise in that regard. Norway created a

contact committee for immigrants and the authorities, which advises the Government on the

views of persons with an immigrant background with regard to State policy. Bulgaria

established an agency for persons with disabilities, which participates in the drafting of

regulatory acts that affect them. The Czech Government has a number of advisory bodies

(relating, for instance, to Roma, national minorities, gender equality and elderly people)

48 A/HRC/23/50, paras. 37–40. 49 See International IDEA and Kofi Annan Foundation, Deepening Democracy: A strategy for improving the integrity

of elections worldwide (Stockholm/Geneva, 2012) para. 65.

50 See International IDEA, Overcoming Political Exclusion, p. 83 (see footnote 47).

51 See contribution from the Economic Commission for Latin America and the Caribbean.

52 A/HRC/23/36, paras. 60–64. 53 Ibid., p. 23.

54 See contribution from the European Centre for Not-for-Profit Law, p. 13.

55 A/HRC/17/27, para. 65.

that bring together representatives of public administration, local governments, the non-

governmental sector and academia. In Estonia, ministries must include representatives of

civil society organizations in the preparation of decisions, draft laws and development

plans. Croatia recently used a highly participatory consultation process to develop a

strategy for the creation of an enabling environment for civil society, and included key

stakeholders from the earliest stages of the consultations so that interested groups could

submit comments and proposals. Various methods of inclusion were used, from facilitated

meetings and working groups to electronic consultations and surveys.56

43. Participation shows best results when meaningful decisions, including those on

resource allocation, are tabled for consideration and discussion. The Constitution of the

Dominican Republic foresees an approbatory referendum for future constitutional

amendments that concern fundamental rights. In Germany, some federal states have

engaged in a broad and inclusive process to ensure that citizens participate in public sector

reform, while several cities have introduced participatory budgeting. Poland reported that it

had introduced participatory budgeting at the municipal level. Residents are invited to vote

on projects and those which receive the highest number of votes are selected. In Greece,

municipalities and regions may establish committees composed of civil society

representatives, which are then consulted by local government before it draws up the

budget and social policy measures.

44. Participation mechanisms are most effective when they are premised on

empowerment and aimed at building the capacity, social capital, confidence, rights

awareness and knowledge of individuals.57 This includes strengthening skills and capacity

of the public and of officials, and devoting resources to long-term, sustainable participatory

mechanisms. Several States, such as Estonia, have adopted manuals for public institutions

to initiate or strengthen participatory practices in the preparation of draft laws, policies and

development plans.

45. It is equally important that the right to participation be enforceable by law and that

the denial of participation be open to challenge through the courts at low cost. The Austrian

Ombudsman Board guarantees legal assistance for all individuals, free of charge and by

phone, e-mail or through the electronic complaint form on the institution’s website. The

Czech Republic offers a system of free or low-cost legal assistance to victims of

discrimination and other human rights violations.

C. Right to equal access to public service

46. Several States reported treating all persons in an equal manner based on the principle

of open competition for entering public service. However, open competition alone, in

situations of deep-rooted structural inequality, may in fact constitute discrimination. In that

regard, the Committee on the Elimination of Racial Discrimination stated that to treat in an

equal manner persons or groups whose situations are objectively different will constitute

discrimination in effect, as will the unequal treatment of persons whose situations are

objectively the same.58

56 Tina Divjak and Goran Forbici, Public participation in decision-making process: international

analysis of the legal framework with a collection of good practices (Ljubljana, December 2014),

p. 60.

57 A/HRC/23/36, para. 71.

58 See Committee on the Elimination of Racial Discrimination, general recommendation No. 32 (2009)

on the meaning and scope of special measures in the International Convention on the Elimination of

All Forms of Racial Discrimination, para. 8.

47. Australia stated that public service agencies were required to establish diversity

programmes, including affirmative measures, to ensure that the diversity of the Australian

community was reflected in strategies designed to attract, recruit and retain employees. The

Republic of Korea uses a separate recruitment process for some underrepresented groups,

while Poland indicated that if a recruitment process resulted in the shortlisting of a person

with disabilities, she or he would be considered first. Paraguay and Turkey established, by

law, a minimum quota of 5 per cent and 3 per cent, respectively, for the recruitment of

persons with disabilities to public service positions. Uruguay has established a public

employment programme with specific quotas for persons of African descent, persons with

disabilities and transgender persons.

D. Other forms of political and public participation

48. A number of States reported on citizens’ initiatives which, when supported by a

certain number of signatories, can become legislative proposals to national or municipal

institutions. Finland reported that the initiative on legislation on same-sex marriage was

most successful, and was subsequently approved by Parliament in 2014. Ireland established

a parliamentary online petitions system, which enables members of the public to take their

policy concerns directly to Parliament and influence the parliamentary agenda. Some

States, such as Poland, Switzerland, the United States of America and the Bolivarian

Republic of Venezuela, provide for recall elections, whereby a predefined minimum

number of voters can trigger a referendum to remove an elected official from office before

the end of his or her term.

49. In recent years, States have used information and communication technologies to

promote more efficient service delivery and allow greater public access to information. In

2014, for the first time, all 193 Member States of the United Nations had national websites,

which significantly increased transparency and access to information. The United Nations

E-Government Survey 2014 ranked the Republic of Korea, Australia and Singapore as the

countries with the most transparent and efficient e-Governments.

50. The rise of information and communication technologies has also affected the ways

in which citizens perceive political participation and democracy.59 Online campaigns and

protests organized through the Internet have provided new avenues for political

mobilization. In Sierra Leone, election observers use mobile phones and the Internet to

report irregularities during elections. Social media have often been cited as having played

an important role during the 2011 uprisings in North Africa and the Middle East.60

E. Best practices relating to women and specific groups

Women

51. States shared best practices on the integration of women in public decision-making.

Bahrain established the Supreme Council for Women, which expresses views and makes

decisions on issues relating to the status of women and implements programmes for the

political empowerment of women. Mozambique involved women’s groups in the revision

of its land policy framework, which contributed to the inclusion of important legal

provisions to uphold gender equality.61

59 See contribution from OSCE-ODIHR, p. 9.

60 A/HRC/27/33, para. 23; and A/HRC/17/27, para. 2.

61 See contribution from the Food and Agriculture Organization of the United Nations, p. 2.

52. Several States reported that they encouraged political parties to adopt effective

measures to ensure that women are placed in top positions on candidates lists in order to

increase their chances of being fully represented in senior positions in party structures.

Other States have established temporary special measures, envisaged by article 4 (1) of the

Convention on the Elimination of All Forms of Discrimination against Women, such as

quotas, which require political parties to include a certain percentage of women in their

candidates lists. Legislation in Albania provides for the representation of at least 30 per cent

of the underrepresented sex in all government and political bodies, including all decision-

making positions in public administration, the judiciary, the police force, peacekeeping

missions and senior political and electoral processes. The Electoral Code of Panama

requires that nomination lists of political parties presented for primaries and internal

elections include at least 50 per cent women. Contributions also signaled the importance of

including issues relating to women in election campaigns and platforms and to appoint

women to senior decision-making roles in the executive, legislative and judiciary.

53. A number of States indicated that they had codified gender parity in electoral lists,

notably through a “zipper” requirement for alternating women and men candidates on party

lists.62 Some States, such as Tunisia, issue sanctions when parties do not comply with the

legal measures aimed at ensuring gender equality, such as removing the party’s electoral

list from the ballot.

54. Public funding can also be an incentive to further gender equality, for example,

where allocation of public funds to political parties is made contingent on compliance with

requirements for women’s participation. In Georgia, political parties with at least 30 per

cent women on their candidates lists receive a 30 per cent higher financial assistance than

other parties. The Moldovan Parliament approved in the first reading a draft law on

financing of political parties and election campaigns, which makes funding contingent on

the number of women who obtain elective mandates. In Ireland, political parties that do not

select at least 30 per cent women candidates for the general election face losing half of their

State funding. In Honduras, 10 per cent of the public funding allocated to each political

party is to be used exclusively for the training and advancement of women in politics.

Indigenous peoples

55. Indigenous peoples’ right to participate in the conduct of public affairs should be

guaranteed in good faith and through the representatives that they have chosen in

accordance with their own procedures.63 Norway reached an agreement on consultation

procedures between the Central Government and the Sámediggi (Sami Parliament). The

State authorities shall, as early as possible, inform Sámediggi about relevant initiatives that

may directly affect the Sami, including on issues such as language, religion, preservation of

cultural heritage, education, land ownership and land-use fisheries, mineral exploration,

extraction activities, biodiversity and nature conservation. Argentina established the

Indigenous Participation Council to ensure the participation of indigenous peoples in all

matters affecting their rights.64

56. In applying International Labour Organization Indigenous and Tribal Peoples

Convention, 1989 (No. 169) in their judgements, several national and regional tribunals

have found that the non-participation by indigenous groups in consultation or decision-

62 A/68/184, para. 37.

63 See Declaration on the Rights of Indigenous Peoples, arts. 5, 18 and 19; and ILO Indigenous and

Tribal Peoples Convention, 1989 (No. 169).

64 For other best practices with regard to the right of indigenous peoples to participate in the conduct of

public affairs, see A/HRC/18/42.

making processes violated their rights and, as such, a broad set of measures have been

judicially ordered, from invalidation of approval for Government projects, especially in the

mining, forestry and energy sectors, to remedies for those affected.65 In March 2010, the

Ecuadorian Constitutional Court declared that mining exploitation in the territories of

indigenous, afro-Ecuadorean and Montubian communities, peoples and nations, must

always be subjected to prior consultations with the relevant communities, as provided for

in the Constitution. In September 2014, a federal judge of the United States of America

ordered the state of Alaska to translate information on early voting and initiatives relating

to the November 2014 ballot into Yup'ik dialects for Alaska indigenous voters with limited

English.66

Minorities

57. States ensure participation of minorities by different means. In addition to electoral

systems based on proportional representation, measures such as seats reserved for

minorities in elected bodies and favorable delimitation of the constituencies contribute to

supporting the political participation of minorities.67 Kazakhstan reported that it made

electoral materials accessible to linguistic minorities by translating them into the minority

languages.

58. Some States reported that minorities benefited from lower thresholds to enter elected

bodies. In Slovenia, the electoral law provides for a separate election for a Roma

representative in municipalities that have a significant Roma population if, during the

general local elections, no Roma representative succeeded in securing enough votes to be

elected. Additional measures include the devolution of certain powers to minorities by

means of a federal or autonomous arrangement; establishment of an informal council of

minority representatives or a statutory body, which is consulted by the executive on matters

of concern to the minority.68

59. Once representatives of minorities have obtained a seat in Parliament, their position

may be further reinforced by certain measures. In particular, they may be given special

procedural rights with regard to questions pertaining to minority issues, which may range

from the right to initiate new legislation to vetoing bills on minority issues.69 In Belgium,

the Assembly and the Senate are divided into language groups for certain issues, which then

have to be decided upon by a majority in each group and an overall majority of two thirds

of votes.70

Persons with disabilities

60. Some States, such as Ecuador, reported that they conducted information campaigns

and awareness-raising initiatives to promote the participation of persons with disabilities in

political and public life. Many States have also adopted a wide range of legislative, policy

and practical measures to remove existing physical barriers and improve the accessibility of

voting stations. Belarus indicated that blind persons are provided with information

materials about candidates in Braille and that the ballot papers have Braille stencils and

65 See ILO, Application of Convention No. 169 by Domestic and International Courts in Latin America

– A casebook (2009).

66 Associated Press, “Judge rules in Alaska native voting rights case”, The New York Times, 22

September 2014.

67 Council of Europe, The Participation of Minorities in Decision-Making Processes, Expert study,

November 2000 (DH-MIN(2000)1), p. 6.

68 A/65/287, para. 41.

69 Council of Europe, The Participation of Minorities, p. 11 (see footnote 67).

70 Ibid., p. 11.

voters with poor vision are provided with magnifying lenses. Those measures enable voters

with visual impairments to vote independently. States also provided information on the

measures adopted to allow persons with disabilities to be accompanied by a person of their

choice when casting their vote. Some States reported that they organized regular training

opportunities for all officials responsible for elections on how to interact with persons with

different impairments and how to support them in the exercise of the right to vote.

61. One of the best ways to guarantee that the measures adopted are appropriate is to

involve people with disabilities in their design. Norway indicated that organizations

representing persons with disabilities participated in the testing of electoral equipment and

that, at the general election in 2009, there was no significant difference in voter

participation among people with disabilities and the general population.

62. Lifting all restrictions on the political participation of persons with psychosocial or

intellectual disabilities is another crucial step to the full implementation of right to political

and public participation.71Austria lifted all restrictions on the right of persons with

disabilities to vote and to be elected; persons with psychosocial and intellectual disabilities

are allowed to exercise their political rights on an equal basis with others.72

Other vulnerable groups

63. A growing number of States allow some form of local electoral involvement of non-

citizens within their territory.73 Norway reported providing grants to immigrant

organizations to contribute to participation, dialogue and interaction. A number of countries

have developed systems of consultation with migrant communities at the national and local

levels. In Italy, several municipalities have set up consultative councils for foreigners, who

represent either a country or a geographical area.74 Portugal appointed a high commissioner

for immigrants and ethnic minorities, whose role is to consult immigrant organizations on

proposed draft legislation and on the implementation of laws that have a direct impact on

them.75

64. The Committee on the Rights of the Child called on governments to make renewed

efforts to ensure that children’s views are heard and taken into account.76A positive

initiative in that regard is the Children in Action project that was launched in South Africa

to include children’s participation in parliamentary hearings and public debates.77 In

accordance with its Constitution, which establishes the right of children and adolescents to

social participation and to be consulted in matters affecting them, Ecuador created an

advisory council on childhood and adolescence, in 2007. As regards young voters, in 2012,

Argentina lowered its voting age from 18 to 16, thus allowing close to a million and a half

young people to be included in the electoral roll. Other countries that allow 16 year olds to

71 A/HRC/19/36, paras. 39, 69.

72 For other examples of best practices regarding the right of persons with disabilities to participate in

the conduct of public affairs, see A/HRC/19/36.

73 Including Azerbaijan, Belarus, Belgium, Bolivia (Plurinational State of), Denmark, Finland, Greece,

Iceland, Ireland, the Netherlands, Norway, Republic of Korea, Slovakia, Sweden and certain Swiss

cantons where foreign residents have the right to vote and to be elected at the local level.

74 Council of Europe, Political and social participation of immigrants through consultative bodies, 1999

(CDMG (99) 21), p. 46.

75 Ibid., p. 56.

76 OHCHR, “UN experts urge real dialogue with children about their rights” press release, 23 September 2014, available at www.ohchr.org/EN/NewsEvents/Pages/DisplayNews.aspx?

NewsID=15084&LangID=E.

77 John Wall and Anandini Dar, “Children’s political representation: the right to make a difference”, International Journal of Children’s Rights, vol. 19, No. 4 (2011), p. 377.

vote include Austria, Cuba, Ecuador and Nicaragua. Egypt adopted a legal quota, which

provides for one quarter of the seats on the local council to be allocated to youth under 35.

65. In order to overcome obstacles to the effective protection of the right of lesbian, gay,

bisexual, transgender and intersex persons to participate in political and public affairs, it is

crucial for States to combat violence, repeal discriminatory laws and ensure that anti-

discrimination legislation includes sexual orientation and gender identity among prohibited

grounds and also protects intersex persons from discrimination.78 Fiji recently added a

clause in its Constitution prohibiting discrimination on grounds of sexual orientation,

gender identity and gender expression. Anti-discrimination laws have also been

strengthened in several States, including Australia, Chile, Cuba, Georgia, Malta, Moldova

and Montenegro. Furthermore, Brazil, Canada, France, Norway, South Africa, the United

Kingdom of Great Britain and Northern Ireland and Uruguay are combatting violence and

stigmatization through anti-hate crime laws, national action plans and public education

campaigns aimed at countering homophobic and transphobic violence and discrimination.79

V. Conclusions and recommendations

66. Despite its key importance as a human right in itself and as an enabler of the

enjoyment of other human rights, the right to participate in political and public

affairs continues to face obstacles to its full realization. Unreasonable and

discriminatory restrictions, be they on the grounds of race, colour, sex, disability,

language, religion, political or other opinion, national or social origin, property, birth

or other status, illegitimately limit the exercise of this right.

67. Insufficient political will to allow full public participation and legal or practical

measures to discourage participation and restrict the democratic space constitute the

main challenges to the implementation of the right to participate in political and

public affairs. Existing structural inequalities, such as poverty, and a decline in

traditional forms of political participation are additional challenges to political and

public participation.

68. Discrimination, including intersecting and multiple forms of discrimination,

and group-specific challenges prevent the full participation of women and

marginalized groups, such as indigenous peoples, members of minorities, persons with

disabilities and lesbian, gay, bisexual, transgender and intersex persons. Such

discrimination ranges from gender stereotyping to non-recognition of indigenous

peoples, from lack of representation of members of minorities in governing

institutions to physical barriers that render polling stations inaccessible to persons

with disabilities.

69. To be fully enjoyed, the right to participate in political and public affairs

requires the exercise of a number of other internationally protected rights, such as the

freedoms of opinion and expression (including access to information), freedoms of

association and of peaceful assembly. Those rights must be guaranteed to all,

including non-citizens, migrants, refugees, asylum seekers and stateless persons.

70. States have taken a number of measures to address the above-mentioned

challenges and to increase participation in political and public affairs. With regard to

the right to vote and to be elected, several States have adopted alternative ways of

voting, such as electronic voting, mobile polling stations, postal voting and advance

voting to increase participation at elections. A growing number of States have

78 A/HRC/29/23, paras. 19, 78 and 79.

79 See also A/HRC/29/23, paras. 71–75.

extended limited voting rights to non-citizens and some allow non-citizens to stand as

candidates in local elections and be members of the boards of self-governing bodies.

Quotas may increase access to elected positions for women, lesbian, gay, bisexual,

transgender individuals and members of minorities. Quotas work best when they are

monitored and accompanied by sanctions for non-compliance.

71. Full and effective participation in political and public affairs is best ensured

when the right itself, combined with the right to equality and non-discrimination, is

recognized in national legislation and when limitations to this right are exceptional

and justified by reasonable and objective criteria. The right to participate in political

and public affairs should be enforceable by law and its denial should be open to

judicial challenge. Appropriate remedies should be available if a violation is

established.

72. Legal frameworks that include the explicit right of individuals and groups to

participate in the design, implementation and evaluation of any policy, programme or

strategy that affects their rights, at the local, national and international levels are

most conducive to the full realization of the right to participate in political and public

affairs.

73. Exercise of the right to participate in political and public affairs further

depends on transparency and on access to full, updated and understandable

information. This information should be made available free of charge and with

sufficient time in advance. Participation in political and public affairs is strengthened

when important decisions, such as those on budget and resource allocation, are open

for discussion. Participation mechanisms should be premised on empowerment and

capacity-building.

74. Equal access to public service, as a component of the right to political and

public participation, can be promoted through diversity programmes, separate

recruitments processes or affirmative measures.

75. Public life has also been enriched through new forms of participation, such as

citizens’ initiatives and e-Government, and through the use of information and communication technologies.

76. As regards participation of women in political and public affairs, States

reported encouraging political parties to adopt effective measures to ensure that

women are placed in top positions on candidates lists so as to have better chances of

being elected as well as fully represented in senior positions in the structures of the

parties. It is also important to include issues relating to women in election campaigns

and platforms and to appoint women to senior decision-making roles in the executive,

legislative and judiciary. A number of States referred to the “zipper” requirement for electoral lists, which alternate women and men candidates, and to State funding to

political parties being contingent on compliance with requirements for increased

women’s representation.

77. With respect to indigenous peoples, measures to increase their participation

include making information available in indigenous languages and consultation with

indigenous bodies. In the event that consultation does not take place, various measures

have been judicially ordered, from invalidation of approval for Government projects,

especially in the mining, forestry and energy sectors, to remedies for those affected.

78. States also referred to a number of best practices relating to participation in

political and public affairs by members of minorities. Some States reported on

lowered thresholds for minorities to join elected bodies; others mentioned the system

of seats reserved for minorities in elected bodies, favorable delimitation of the

constituencies, or the creation of a council of minority representatives. Minorities in

Parliament may also be given special procedural rights, such as the right to initiate or

to veto bills regarding issues that directly affect them.

79. Examples of measures adopted by States to implement the right of persons with

disabilities to participate in political and public affairs include information

campaigns; the removal of existing physical barriers; the availability of information

and ballot papers in accessible formats, including through the use of new technologies;

and the involvement of persons with disabilities in the design and testing of electoral

equipment. Training sessions for election officials and the lifting of restrictions on the

political participation of persons with psychosocial or intellectual disabilities are also

crucial.