PART 2:
THE CONVENTION ON THE RIGHTS
OF PERSONS WITH DISABILITIES
Chapter 3:
The Right to Participation in Political
and Public Life
Convention on the Rights of Persons with DisabilitiesArticle 29, Participation in political and public life
States Parties shall guarantee to persons with disabilities political rights and the opportunity to enjoy them on an equal basis with others, and undertake to:
(a) Ensure that persons with disabilities can effectively and fully participate in political and public life on an equal basis with others, directly or through freely chosen representatives, including the right and opportunity for persons with disabilities to vote and be elected, inter alia, by:
i. Ensuring that voting procedures, facilities and materials are appropriate, accessible and easy to understand and use.
ii. Protecting the right of persons with disabilities to vote by secret ballot in elections and public referendums, without intimidation, and to stand for elections, to effectively hold office and perform all public functions at all levels of government, facilitating the use of assistive and new technologies where appropriate.
iii. Guaranteeing the free expression of the will of persons with disabilities as electors and to this end, where necessary, at their request, allowing assistance in voting by a person of their own choice.(b) Promote actively an environment in which persons with disabilities can effectively and fully participate in the conduct of public affairs, without discrimination and on an equal basis with others, and encourage their participation in public affairs, including:
i. Participation in non-governmental organizations and associations concerned with the public and political life of the country, and in the activities and administration of political parties.
ii. Forming and joining organizations of persons with disabilities to represent persons with disabilities at international, national, regional and local levels.
OBJECTIVES
The information contained in this chapter will enable participants to work towards the following objectives:
· Define the right to participation in political and public life;
· Explain the importance of participation for achieving disability rights;
· Understand the interrelationship between the right to participation and other human rights;
· Identify ways in which the rights of persons with disabilities to participate in political and public life and decision-making generally has been promoted or denied;
· Describe the provisions regarding participation in the Convention on the Rights of Persons with Disabilities (CRPD); and
· Highlight possible advocacy strategies to advance the right of persons with disabilities to participate in decision-making, including in political and public life.
GETTING STARTED: THINKING ABOUT PARTICIPATION IN POLITICAL AND PUBLIC LIFE
Persons with disabilities have too often been excluded from participating in the decisions that affect their lives. Their absence from decision-making processes reinforces barriers to full participation in society.
The enjoyment of the right of persons with disabilities to participate in decision-making, including participation in political and public life, is interrelated to their enjoyment of other human rights. For example, if a person with a disability is denied her or his right to education, the right to participate in political processes is also compromised because education provides the basis for active citizenship. Access to information is another precondition to the right to vote and to participate in decision-making in society. Similarly, if a person with a disability has no access to transportation, the person may not be able to register to vote, to cast a ballot at a polling station, or to participate in a public hearing on an important community issue that affects that person. Discriminatory laws may permanently deny persons with disabilities their legal rights and thus deny them their legal capacity, as in the case of processes that strip the rights of persons with psychosocial disabilities to make decisions about medical interventions. These examples demonstrate how human rights are indivisible, interdependent, and interrelated.
Violations and Barriers to Participation in Political and Public Life
The right to political participation has been denied to persons with disabilities throughout the world for a variety of reasons. Discriminatory laws rooted in stigma and prejudice may restrict or even prohibit altogether the right to vote, particularly for persons with psychosocial or intellectual disabilities. Stereotypes associated with disability may also serve to exclude persons with disabilities from inclusion in public outreach by political parties or for consideration as candidates for public office. Lack of access to information, such as the timing of public meetings or election campaign material, can also be a barrier to participation. Communication barriers frequently exclude persons who are deaf or hard of hearing from decision-making processes, such as medical decision-making. In the context of international development, donor organizations or service providers may wrongly assume that persons with disabilities are unable or uninterested in taking part in the planning and implementation of development projects. These and numerous other barriers serve to reinforce the exclusion and isolation of persons with disabilities in political and public life and, more generally, preclude their participation in decision-making in all areas where their interests are affected, whether in the public or private realm.
Examples of Barriers to Participation in Decision-making· Attitudes about the value of inclusion of persons with disabilities in decision-making processes.
· Lack of accessible information about public meetings and consultations, political parties, and voting and registration.
· Lack of transportation to public meetings, registration, and polling stations.
· Physical barriers to public buildings, including courts, voting registration centres, and polling stations.
· Polling stations in rooms too small to accommodate persons using wheelchairs and voting boxes placed on high tables.
· Lack of accessible information on voting procedures for voters with sensory disabilities.
· Poorly trained election workers.
· Hostility towards and/or exclusion of persons with psychosocial disabilities and intellectual disabilities in decision-making processes;.· Lack of alternative voting devices or accessible voting methods for persons with sensory disabilities.
· Lack of mobile voting mechanisms for persons who cannot leave their homes or who are currently residing in hospitals/institutions.
WHAT DOES HUMAN RIGHTS LAW SAY ABOUT THE RIGHT TO PARTICIPATE IN POLITICAL AND PUBLIC LIFE?
The right to participate in political processes is a well-established principle of human rights law and is expressed in Article 21 of the Universal Declaration of Human Rights (UDHR). Furthermore, Article 25 of the International Covenant on Civil and Political Rights (ICCPR) provides that:
[E]very citizen shall have the right and the opportunity… without reasonable restrictions…to vote and to be elected at genuine periodic elections which shall be universal and equal suffrage and shall be held by secret ballot, guaranteeing the free expression of the will of the electors.
Specialized human rights conventions, including the Convention on the Elimination of All Forms of Racial Discrimination (CERD), the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) and the Convention on the Rights of the Child (CRC) all recognize the right to participate in decision-making for racial minorities, women, and children respectively.
The Convention on the Rights of Persons with Disabilities (CRPD) elaborates on the right of persons with disabilities to participate in the political life of their societies and provides specific guidance to States on implementing this right. Participation in the context of the CRPD extends beyond voting and encompasses the right of persons with disabilities to participate in decision-making processes on an equal basis with others where their interests are affected. Specifically, Article 29, Participation in political and public life, guarantees the right of persons with disabilities:
· To vote in elections on a non-discriminatory basis.
· To access an effective, impartial, and non-discriminatory procedure for the registration of voters.
· To have equal and effective access to voting procedures and facilities in order to exercise their right to vote, including the provision of reasonable accommodation.
· To cast their ballot in secret.
· To have assistance in order to exercise their right to vote or to stand for election as a candidate for public office.
· To participate in the conduct of public administration, including the administration of political parties and civil society.
· To participate in the work of international organizations, including serving as a representative of government in international organizations.
· To form and join disabled people’s organizations (DPOs) at all levels.
States Parties to the CRPD are required to ensure the right to participate in political processes, including voting. Importantly, States must also take positive actions to assure that citizens with disabilities actually have the opportunity to exercise their political rights. In Article 3, General principles, the CRPD makes participation a fundamental principle and calls for “[f]ull and effective participation and inclusion in society.” Article 4, General obligations, requires States to “closely consult with and actively involve persons with disabilities, including children with disabilities, through their representative organizations,” in the “development and implementation of legislation and policies.” ThroughArticle 29, Participation in political and public life; Article 3, General principles; and Article 4, General obligations, the CRPD sets forth the clearest expression in international human rights law of the right to participation in decision-making when one’s interests are affected.
The CRPD Committee and Political ParticipationThe CRPD Committee in its concluding observations in relation to its review of the report of Spain expressed its concern regarding the permissibility of restrictions on the right to vote of persons with intellectual or psychosocial disabilities in situations where such persons have been deprived of legal capacity or placed in an institution. It also expressed regret at the number of persons denied their right to vote and the fact that such disenfranchisement appeared to be the rule and not the exception.
The CRPD Committee recommended that:
· A comprehensive review of legislation be undertaken to ensure that persons with disabilities have the right to vote and participate in political and public life on an equal basis with others, whatever their legal status or living arrangement.
· Amendments be made to legislation to secure the right to vote and the provision of assistance to facilitate political participation rights.
· All persons with disabilities who are elected to a public position are provided with all required support, including personal assistants.
The Committee’s concluding observations make clear that the political rights of persons with disabilities must be legislatively protected and that voting restrictions on the basis of disability are impermissible.
Source: Committee on the Rights of Persons with Disabilities, “Consideration of Reports submitted by States under Article 35, Concluding Observations – Spain” (19 May 2011): http://www.ohchr.org/EN/HRBodies/CRPD/Pages/Session6.aspx
The Duty to Respect, Protect, and Fulfil Obligations Relating to Participation in Political and Public Life
Taken as a whole, States’ obligations with regard to the right to participation in political and public life include:
1. Obligation to respect: States must refrain from engaging in any act, custom, or practice that creates barriers to enjoyment of the right to participate in political and public life for persons with disabilities.
Example: The State does not limit the right of persons with disabilities to vote on the basis of disability in its electoral code and acts to repeal a law that excludes persons under guardianship from voting.
Example: The State amends its electoral procedures to ensure that persons with disabilities are allowed to be accompanied by a person of their choice to exercise their right to vote, including in the voting booth when casting their vote.
2. Obligation to protect: States must ensure that non-State or private actors do not violate the right of persons with disabilities to participate in political and public life.
Example: The State takes measures to ensure that election access is included in the programming of domestic and international election monitors.
Example: The State ensures that election equipment, such as voting booths and electronic voting machines procured for an election, are accessible to persons with disabilities.
3. Obligation to fulfil: States must take proactive steps to ensure enjoyment of the right to participate in political and public life by persons with disabilities.
Example: The State provides appropriate training of election officials and supports information campaigns that are accessible to persons with disabilities.
Example: The State undertakes a comprehensive audit of polling centres to ensure that they are accessible to persons with physical disabilities, such as wheelchair users.
In sum, international human rights law makes clear that States have the obligation to respect, protect, and fulfil the rights of persons with disabilities to participate in political and public life and decision-making more generally where their interests are affected. The enjoyment of the right to participate facilitates the enjoyment of all other human rights.
Measures to Enhance Participation in Political Life and Decision-making by Persons with Disabilities
· Training of elected representatives on disability issues (for example, parliamentarians, local council members).
· Capacity building among disabled people’s organizations to enhance their role in public decision-making processes of all types.
· Disability awareness campaigns.
· Outreach campaigns highlighting the right of persons with disabilities to vote and be elected.
· Public forums with political parties to present a unified disability platform.
· Development of an election access task force to work with election officials and national election commissions on access issues.
· Inclusion of the voice and image of persons with disabilities in civil and voter education materials.
· Development of Tactile Ballot Guides for voters who are blind, allowing their votes to be cast independently and in secret.
· Training of election officials on accessibility.
· Inclusion of persons with disabilities in election observation and inclusion of access issues on all election observation forms.
· Participation in the planning of development programmes and lobbying development organizations for inclusion.
· Encouragement of government ratification of the CRPD.
Inclusive Civic and Voter Education
Ensuring that civic and voter education processes are inclusive of persons with disabilities and their families is one way of facilitating active citizenship. Participation in voting is empowering and sets the stage for participating in community life in other spheres, such as economic opportunity. Disabled people’s organizations (DPOs) should actively promote the participation of persons with disabilities and can serve as essential resources on disability inclusion to election commissions, civic and voter education organizations, and political parties. Moreover, persons with disabilities should be included in voter education initiatives as educators and voting materials should reflect the positive image of persons with disabilities. Such inclusion has the added benefit of helping to raise the visibility of persons with disabilities in society and confronting harmful stereotypes that reinforce exclusion and marginalization.
There are numerous examples of successful strategies for enhancing the participation of persons with disabilities in civic and voter education campaigns. Some of these include:
· Ensuring that persons with disabilities and their representative organizations are included in voter education campaigns as participants and as educators.
· Planning voter education activities in accessible venues and holding voter education sessions at DPOs.
· Inclusion of the voice and image of persons with disabilities in civic and voter education materials (for example, designing posters with images of voters with disabilities exercising their right to vote).
· Providing closed captions and sign language interpreters on televised voter information announcements.
· Ensuring that voters with disabilities have information on their right to have assistance in casting their vote, including by a person of their own choosing.
· Providing voter education and information in accessible formats (for example, large print, electronic format for voters that use screen-reading technology, written material, and easy-to-understand language for persons with intellectual disabilities).
· Capacity building among DPOs to enhance their role in civic and voter education.
Civic and voter education initiatives present opportunities for DPOs to enhance disability awareness and increase the participation of persons with disabilities in political decision-making. They also provide opportunities for disability advocates to work with other civil society groups on voter awareness and education. In this way, DPOs can share information and advocacy goals with other civil society groups and learn their advocacy strategies and priorities.
PARTICIPATION IN ELECTORAL PROCESSES
The CRPD provides that persons with disabilities have the right to vote, which means they have the right to register to vote, to receive voting information, and to cast their ballot in elections. States are required to provide procedures and facilities for voter registration and polling that are accessible to persons with disabilities. States are also required to ensure that all voters have the right to vote in secret. Although the right to register to vote and to vote on polling day extends to all persons, it is subject to the usual eligibility requirements, such as age and nationality. Certain disqualifications may apply to otherwise eligible voters, including sentencing by a competent court in criminal proceedings. In the absence of such disqualifications, no person can be barred from exercising his or her right to vote, provided she or he meets the other eligibility requirements.
Too often discriminatory disqualifications on the basis of disability disenfranchise persons with disabilities, such as exclusions from voting based on a declaration of legal incompetence or incapacity by a court. The CRPD prohibits voting exclusions on the basis of disability, restrictions that very often impact persons with intellectual and psychosocial disabilities. Exclusions and disqualifications relating to mental capacity must be regarded as discriminatory; and, even assuming that they were permitted, they are often applied arbitrarily and without court declarations. In this context, therefore, education of voters, registration and polling officials, and persons with disabilities themselves is particularly important.
CASE STUDY
European Court of Human Rights Rules on
Disenfranchisement of Voter with a DisabilityIn Alajos Kiss v. Hungary, the applicant contested his exclusion from the electoral register on the basis that he was under partial guardianship following a diagnosis of bipolar disorder. Because the Hungarian Constitution contained an absolute voting ban for people put under guardianship, the applicant was not permitted to vote in the 2006 parliamentary elections.
The European Court of Human Rights held unanimously that an automatic ban on voting for a person under guardianship violated the right to free elections of Article 3 of Protocol 1 of the European Convention on Human Rights. The Court also held that the State had to provide weighty reasons when applying a restriction on fundamental rights to a particularly vulnerable group, such as persons with mental disabilities. The Court did, however, accept the Hungarian government’s contention “that only citizens capable of assessing the consequences of their decisions and making conscious and judicious decisions should participate in public affairs.” On the other hand, the Court did not accept the permissibility of an automatic exclusion from the right to vote. The Court noted the relevance of the standards set forth in the CRPD in its ruling.
Source: Alajos Kiss v. Hungary, Eur. Ct. H.R. Application No. 38832/06 (20 May 2010): http://hudoc.echr.coe.int/sites/eng/pages/search.aspx#{"dmdocnumber":["868178"],"itemid":["001-98800"]}
Voting procedures and facilities must be accessible to persons with disabilities. Polling stations must be free of physical barriers that might prevent a person with a physical disability from registering or voting. For example, stairs are barriers for persons who use wheelchairs or have mobility impairments and can also present dangers to voters who are blind or visually impaired. Communication barriers can prevent voters with hearing impairments from exercising their right to register and to vote. Sign language interpreters or written material highlighted with clear illustrations may provide accommodations for such voters. Plain language materials may assist voters with intellectual disabilities in exercising their right to vote. The training of election officials is essential to enable voters with disabilities to be appropriately accommodated and treated in a non-discriminatory manner.
All people have the right to vote in secret, an absolute right that may not be restricted. In many countries, however, voting and registration procedures are not made accessible to persons with disabilities to allow for their secret voting, especially for voters who are blind. Voters who are blind may exercise their right to vote in secret with a tactile ballot guide or with a voting machine that has audible instructions. Many countries have introduced accessible procedures that provide voters who are blind with the right to vote in secret.
Tactile Ballot Guides for Voters Who are BlindIn the 2005 Liberian elections, the National Elections Commission, together with the International Foundation for Election Systems (IFES), printed Tactile Ballot Guides to enable voters who are blind to mark their ballot independently, thereby preserving their rights to vote in secret. Election officials were trained on the use of this guide so that they could assist voters wishing to use them. A coalition of DPOs held voter education sessions throughout Liberia in which they explained to voters how to use the guides. Tactile Ballot Guides have been used in many countries, including Armenia, Ghana, and Yemen.
Persons with disabilities also have the right to assistance in the exercise of their registration and voting rights. For example, they may select a friend or family member to accompany them to the polls. The right to assistance is particularly important where registration and polling stations are not fully accessible. Service animals may also facilitate political participation rights.
In many countries around the world, DPOs have played important advocacy roles to enhance the accessibility of electoral processes for all and also to raise awareness about disability issues more generally. Electoral processes present opportunities for disability advocates to raise the visibility of disability issues, to engage with political parties, and to assess the extent to which national elections commissions are working to ensure access and realization of the right to vote for persons with disabilities.
RIGHT TO STAND FOR ELECTION AND HAVE EQUAL ACCESS TO PUBLIC SERVICE
Persons with disabilities have the right to stand for election to public office. While States may limit that right to those who have reached a minimum age, restrictions must be justifiable and reasonable. Disability should never apply as a restrictive condition.
Persons with disabilities likewise enjoy equal access to public service and government jobs at all levels, including working at local government offices, as well as serving as government representatives at international levels, such as the United Nations. Indeed, a number of elected representatives with disabilities and governmental public servants participated in the UN negotiations that resulted in the adoption of the CRPD. Such inclusion helps to ensure that government at all levels takes into account the needs of persons with disabilities.
In some countries DPOs have advocated for positive measures in order to ensure that their interests are effectively represented in their legislatures. In Uganda, for example, the Constitution requires that a certain percentage of seats in Parliament be accorded to representatives with disabilities. In other countries, the executive may appoint a certain number of parliamentary seats. In Namibia, for example, this policy has resulted in the presidential appointment of representatives with disabilities to parliament. In other cases, persons with disabilities may have representation through a Disability Advisor linked to the executive branch, as in the case of the Swedish Disability Ombudsman or Namibian Disability Advisor, or through a Council on Disability, as in the case of the United States National Council on Disability.
CASE STUDIES
Parliamentary Participation and Persons with DisabilitiesCanada: Following the election of a person with a disability to the House of Commons, modifications were made to Standing Orders of the House to "permit the full participation in the proceedings of the House of any Member with a disability." This allows the Speaker to exempt such a member from the requirement to stand for debate and voting. Members of Parliament with disabilities are now allowed to be accompanied by an assistant on the floor of the House.
New Zealand: In November 2011, New Zealand voters elected the first deaf Member of Parliament, Mojo Mathers, a member of New Zealand’s Green Party.
Uganda: Uganda’s new constitution, written in 1995, requires that five of the national members of Parliament have personal experience with disability. The Local Government Act of 1997 provides for the election of one woman with a disability and one man with a disability to every village, parish, sub-county, and district council. Incredibly, there are some 47,000 representatives sitting on directly elected bodies, easily the largest group of politicians with disabilities anywhere in the world. Members of Parliament with disabilities have served on a variety of Parliamentary committees, including Presidential Appointments, Rules and Privileges, Legal and Parliamentary Affairs, Commissions, Statutory Authorities, State Enterprises, Social Services, Public Service, Gender, and Local Government. Serving in the Parliament is more accessible now that rules have been changed to permit guide dogs and sign language interpreters in meeting and parliamentary sessions.
South Africa: Eleven members of the South African Parliament are disabled. Prior to the 1994 elections, activists with disabilities looked for the political base to advance their cause. They used the Disability Rights Charter they had produced as a bargaining chip to pressure the ruling African National Congress (ANC) to establish a disability unit. Within three years a national disability strategy was adopted, and the unit was moved to the Office of the Deputy President.
RIGHT TO FORM AND JOIN ORGANIZATIONS
The CRPD recognizes the right of persons with disabilities to form and join DPOs for the purpose of representation at all levels. This right reflects the human right of anyone to found an association with others around a particular issue or to join an existing association. Forming an association and joining as a member must be voluntary: no one can be forced to join any association. States must provide a legal framework for establishing association and must protect this right against interference.
DPOs are explicitly referenced in the CRPD because they refer to organizations established by and for persons with disabilities themselves. Associations established and run by persons with lived experience of disability are best placed to ensure that the voice of persons with disabilities is heard in decision-making processes. DPOs played an important role in the process of drafting the CRPD and will continue to play critical roles in the implementation of the treaty.
USEFUL RESOURCES ON PARTICIPATION IN POLITICAL AND PUBLIC AFFAIRS
· Council of Europe, Committee of Ministers, “Recommendation CM/Rec 14 on the participation of persons with disabilities in political and public life” (2011):
https://wcd.coe.int/ViewDoc.jsp?Ref=CM/Rec(2011)14&Language=lanEnglish&Ver=original&Site=
CM&BackColorInternet=C3C3C3&BackColorIntranet=EDB021&BackColorLogged=F5D383o Recommendations to Member States on facilitating the rights of persons with disabilities in politics and public life.
· European Union Agency for Fundamental Rights, “The Right to Political Participation of Persons with Mental Health Problems and Persons with Intellectual Disabilities,”(2010): http://fra.europa.eu/fraWebsite/research/publications/publications_per_year/pub-disability-overview_en.htm
o Details results of study to assess the enjoyment of the right to political participation for persons with mental and intellectual disabilities in the European Union.
· Guy S. Goodwin-Gill, Free and Fair Elections Inter-Parliamentary Union (2006):
o Detailed coverage of international standards for free and fair elections.
· Inclusion Europe, Recommendations for Accessible Elections in Europe (2011):
o Details, among other things, the disproportionately low percentage of voting among persons with intellectual disabilities in various European countries.
· International Foundation For Electoral Systems (IFES), “Global Initiative to Enfranchise People with Disabilities”: http://www.electionaccess.org
o Resources on election access.
· U.S. Department of Justice, Civil Rights Division, Disability Rights Section, “Americans with Disabilities Act Checklist for Polling Places,” (February 2004): http://www.ada.gov/votingck.htm
o Providing very detailed accessibility guidance specifically for polling centres.
