87
207. States may establish minimum standards to regulate political participation,
provided they are reasonable and in keeping with the principles of representative
democracy. These standards should guarantee, among other matters, the holding of
periodic free and fair elections based on universal, equal and secret suffrage, as an
expression of the will of the voters, reflecting the sovereignty of the people, and
bearing in mind, as established in Article 6 of the Inter-American Democratic Charter,
that “[p]romoting and fostering diverse forms of participation strengthens democracy”;
to this end, States may design norms to facilitate the participation of specific sectors of
society, such as members of indigenous and ethnic communities.
208. With regard to the restrictions to the right to be elected, the United Nations
Human Rights Committee has stated that:
The right of persons to stand for election should not be limited unreasonably by requiring
candidates to be members of parties or of specific parties. If a candidate is required to have
a minimum number of supporters for nomination this requirement should be reasonable and
not act as a barrier to candidacy.174
209. Electoral Act No. 331 of 2000, stipulates requirements that were not included in
the previous law and which place maximum limitations on the possibility of
participating in the municipal elections (supra para. 124(20)). This new Electoral Act
entered into force approximately nine months before the day set for holding the
elections, in the first electoral process organized while it was in force.
210. The Court takes note of the State’s acknowledgement of the need to reform
Electoral Act No. 331 of 2000, and considers that this implies an admission that the
law contains provisions that affect the exercise of the right to political participation.
During the public hearing before the Court (supra para. 37), the State’s Agent declared
“with conviction […] that there is a need to reform both this law and a series of laws in
Nicaragua,” “to this end, it would be very useful to receive assistance with
contributions, recommendations, to try and make the law more flexible with regard to
those points which do not affect the substance of the law[,] to ensure that participation
is more effective, especially in the case of regions that are far from the capital.” The
Agent added that “he [would] try to ensure that, as soon as possible, an improvement
to the electoral laws was negotiated and arranged, [...] to benefit not only YATAMA,
which merits it, but also other groups in the country and the members of political
parties […].” Likewise, the Secretary for Atlantic Coast Affairs of Nicaragua, who
provided expert evidence to the Court, stated that there was “an urgent need to
reform this law” (supra para. 111).
211. In “Electoral Observation, Nicaragua 2000: Municipal Elections,” the OAS
Secretariat General stated that Electoral Act No. 331 of 2000 “considerably reduced
opportunities to participate in municipal elections,” and referred to the law’s lack of
clarity when it underscored that:
Controversies arose about the interpretation of the law, and even more about its
application. During its stay, the Mission noted that different interpretations were applied to
similar cases and consequently produced differing decrees or decisions.
212. As regards observance of the principle of legality, the Court finds that Electoral
Act No. 331 of 2000, is ambiguous because it does not establish clearly the
consequences of non-compliance with certain requirements for both those who
174
U.N., Human Rights Committee, General comment No. 25, supra note 173, para. 17.
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