5
and universal suffrage as an expression of the sovereignty of the people, the
pluralistic system of political parties and organizations, and the separation of
powers and independence of the branches of government” (Article 3).
23.
As we can see, at least two important aspects of the requirements that the
Convention already contained were clarified and developed by the Inter-American
Democratic Charter: (a) not only the access to power but also its exercise should
be subject to the rule of law; in this way, the “legitimacy of exercise” is added as
an inter-American principle to the already recognized “legitimacy of origin”; (b) the
pluralistic system of political parties and organizations. The political parties merit a
specific additional consideration in the Charter, since it stipulates that “The
strengthening of political parties and other political organizations is a priority for
democracy. Special attention will be paid to the problems associated with the high
cost of election campaigns and the establishment of a balanced and transparent
system for their financing” (Article 5, underlining added). Reading the American
Convention in light of these conceptual evolutions that the inter-American
consensus has expressed in the Democratic Charter shows that the free expression
of the will of the electors would be affected if authorities elected under the rule of
law (legitimacy of origin) exercise their functions in violation of the rule of law.
24.
In relation to political parties and organizations, this is an absolutely central
issue that has direct repercussions as regards the rights of those who tried
unsuccessfully to be candidates for YATAMA on the Atlantic Coast of Nicaragua.
Curiously, this issue is not mentioned explicitly in the OAS Charter or in the
American Convention. However, the conceptual essence of representative
democracy presumes and requires ways of representation that, in light of the
provisions of the Democratic Charter, would be the parties and “other political
organizations” that should be protected and also strengthened according to the
provisions of Article 5.
25.
With regard to political parties and “other political organizations,” a first
issue to mention is that, since they are considered essential elements for
channeling the free will of the voters, it is the State’s obligation to provide the
conditions for strengthening these means of representation; contrario sensu, to
abstain from adopting measures that could weaken them. The Democratic Charter
mentions explicitly the issue of the financing of electoral campaigns as a matter to
which attention should be paid, and also emphasizes the need to ensure “the
establishment of a balanced and transparent system for their financing.” Without
mentioning it, the Democratic Charter is conveying that, faced with possible
imbalances and inequalities, a counterbalancing system should be ensured in order
to achieve the desired equality. Accordingly, this clearly calls for effective actions
that preferably benefit those affected by such imbalances and inequalities.
26.
In the instant case, it has been proved that YATAMA’s form of organization
in order to take part in the 2000 electoral process met with difficulties owing to the
provisions of Electoral Act No. 331 of 2000. This violated the rights of those who
intended to be candidates, and affected the principle that it is possible to organize
in ways other than political parties in order to exercise the right to take part in the
conduct of public affairs, in this case prejudicing an organization that represented
the indigenous peoples of this part of Nicaragua. Consequently, the State not only
obstructed their participation but also did not adopt the necessary measures to
facilitate the participation of an organization such as YATAMA.
27.
In this line of reasoning, it should be understood that granting the necessary
facilities to the so-called “political organizations” is designed to generate the
conditions for expanding and consolidating the participation of the citizens in the
conduct of public affairs. This should not be understood as opposing but rather as