THE ROLE OF POLITICAL PARTIES IN THE INTEGRATION OF …



Distr. GENERAL

E/CN.4/2005/WG.20/MISC.3

23 August 2005

ENGLISH ONLY

COMMISSION ON HUMAN RIGHTS

Sixty-second session

Fifth session

of the working group of experts on people of african descent

Geneva, 29 August – 2 September 2005

REFLECTIONS ON THE ROLE OF POLITICAL PARTIES IN THE INTEGRATION OF PEOPLE OF AFRICAN DESCENT IN THE POLITICAL LIFE AND DECISION-MAKING PROCESSES OF STATES

Document presented by

Dr. Obiora Chinedu Okafor

Associate Professor,

Osgoode Hall Law School, York University, Toronto, Canada

I. Introduction and Some Preliminary Points*:

1. It is important to begin by noting and making clear a number of assumptions that ground the arguments made in this paper. The first such assumption is that the meaning of the concept of political parties (a key word in this discussion) is relatively non-controversial. I will therefore not devote any space here to its definition.

2. The second is that, although its boundaries can be read either expansively or restrictively to include or exclude some groups (such as white South Africans who live in the USA or Arab/Berber Libyans living in Canada), almost of us share an understanding of the intended core meaning ascribed at the Durban Conference to the expression people of African Descent (hereinafter referred to as “P.A.Ds”).

3. The third is that I assume that it is now a more or less well settled position that efforts by political parties and other actors at addressing the negative political, social or economic effects of racial inequality on P.A.Ds and other racial minorities must extend beyond embracing the tenets of formal equality. Most commentators agree that such efforts must, in addition, reach for and indeed grasp the more important goal of substantive equality. As one commentator has rightly put it, political parties ought to pursue, and to the extent that is possible, deliver “transformative politics.”[1] This refers to a brand of politics that produces policies that are actually remedial, that transcend ordinary political discourse, and that offer the promise of fundamental, positive change in the lives of those toward whom such policies are directed.[2]

4. Fourthly, since the important role that political parties can play in the positive transformation of the situation of P.A.Ds is underlined in the Durban Declaration and Programme of Action itself,[3] as well as in paragraph 9 of the more recent UN Commission on Human Rights Resolution 2005/36, I will treat that point as largely non-controversial. What I will say, however, is that political parties have historically played a key role in either the suppression of P.A.Ds or in attempts to emancipate them. For example, in the US, while their post-civil war reconstruction and anti-slavery struggle was led by the then radical Republicans (not their contemporary cousins), it was bitterly opposed by the then Southern Democrats (not the Democrats of today).[4] The US civil rights movement of the 1960s was given much support by President Lyndon B. Johnson’s Democrats while the Republicans did their very best to oppose that heroic movement.

5. Fifthly, given the contents of this working group’s previous reports to the Commission on Human Rights, I also take it for granted that there is now very little room for reasonable doubt regarding the fact that P.A.Ds have historically suffered serious political, social and economic deprivations and injustices that have all-too-often been caused by the racial discrimination that has victimised too many of them. It is also common knowledge that in our own time, it is the more insidious and systemic kind of racism that has been the more difficult to identify, confront, and root out.[5] The largely insidious exclusion of P.A.Ds from the full benefits of citizenship definitely characterizes the contemporary political terrains of a large number of Diaspora countries; especially those in which P.A.Ds are in the minority. As Karen Bird has recently put it, although “small improvements are apparent in many countries,” it is clearly the case that P.A.Ds and other similarly visible racial minorities “have not yet made spectacular gains towards more equitable political representation” in the Diaspora.[6]

6. Consequently, other than for illustrative purposes, I will not dwell on this issue in any detail in this paper. Suffice it to note that in the telling Canadian context, despite Canada’s famous and longstanding commitment to multiculturalism, Canadian P.A.Ds are still very much under-represented in that country’s key political institutions. Notwithstanding the fact that P.A.Ds are estimated to constitute close to 2.5% of the Canadian population, only 3 of the 308 members of the Canadian House of Commons are P.A.Ds (that is only 0.97 percent); not even one P.A.D is a member of its 40 or so member federal cabinet (Jean Augustine, the only P.A.D who had recently served in cabinet as a junior minister was dropped in 2004); and only 1 of the 29 parliamentary secretaries is a P.A.D. What is more, although P.A.Ds constitute approximately 5% of the population of Ontario, Canada’s key province, only 2 P.A.Ds sit in that province’s 103 seat legislative assembly (that is only 1.9%), and one of them resigned his seat two weeks ago to become Canada’s Ambassador to the Dominican Republic. Similarly, only 1 P.A.D sits in Ontario’s 32 or so strong provincial cabinet (that is only 3.1%). On the more positive side, the newly appointed ceremonial Governor-General of Canada, Michelle Jean, is a female P.A.D who was born in Haiti; a near proportionality exists between Canada’s P.A.D population and their share of seats in the appointed national upper house, the Senate (2 or 1.9% of the105 senators are P.A.Ds); and until just two weeks ago, the Speaker of Ontario’s Legislature was Alving Curling, a P.A.D.

7. The issue of under-representation is, however, not resolved by simply taking a census of the number of P.A.Ds elected to office or fielded as candidates in elections. We must, in addition, assess the extent to which those so elected or fielded act as effective substantive representatives of the interests of the P.A.Ds who live in the relevant jurisdiction.[7] The case of a Syrian politician in Denmark who is said to be highly unpopular among Denmark’s ethnic Syrians but who is highly acclaimed within the ethnic Danish population has been offered by one commentator to illustrate this point.[8] Who does this politician really represent? Does he represent the interests of the ethnic Syrians or the ethnic Danes? Should his election be cited as evidence of how politically integrated ethnic Syrians have become in the Denmark? In the Canadian context, similar questions can be raised, for it is safe to say that one of the two P.A.D senators would be unlikely to win a vote of confidence among Canadian P.A.Ds.

8. On the whole though, the more important question: what to do? What ought political parties do, and how ought these parties behave if they are to positively transform the political situation of P.A.Ds; if they are to deliver transformative politics to them? Happily, there is an emergent near-consensus among democratic theorists/scholars that:

“Special mechanisms for enhanced group representation should apply to certain groups that have been consistently under-represented in legislative bodies … [and] that without [these measures] it is extremely likely that the interests of these groups will be overlooked and that policies will be biased against them.”[9]

9. It is in this light that I will, in the following section of this paper, discuss some concrete ameliorative steps that need to be taken by political parties, with much encouragement from civil society, and in some cases backed by state-imposed mandates (such as legislation and positive judicial action). Indeed, the role of these other actors in getting political parties to fulfil what I see as their responsibilities to help integrate P.A.Ds in the political life of relevant states cannot be over-emphasized. These other actors can do a lot to help hold the feet of political parties to the fire of their obligations to promote the fuller inclusion of P.A.Ds in political life.

II. Ameliorative Measures that Political Parties Can Take or Support:

1. Anti-Racism Education

10. An important reason for the continuation of racial discrimination against P.A.Ds, resulting in their lack of full integration into the political life of their states, is the ignorance and lack of sensitivity to the plight of these P.A.Ds that plagues all-too-many politicians and political party members. While a range of ways are available to ameliorate such ignorance and insensitivity, anti-racism education (including education on the historical and current experiences of P.A.Ds) is an important component of the cocktail of measures that help reduce the prevalence of such ignorance and insensitivity. Indeed paragraph 117 of the Durban Programme of Action urges states to commit financial resources to such anti-racism education efforts.

11. As such, the leaders and members of political parties should have a responsibility to voluntarily accept reasonable measures of anti-racism education from the relevant national human rights institutions, civil society groups, universities, etc. Parties should either require this of their leaders and members, or provide incentives for these party actors to accept such education. States should also be urged to encourage or require political parties, politicians, and party members to accept these responsibilities. The relevant government’s can help promote such anti-racism education by providing some of the financial resources for the establishment and maintenance of these programs.

2. Political Parties and Proportional Representation (with Preference Voting) Systems [10]

12. Political parties should be urged to support the adoption, by their countries, of electoral systems that are based on proportional representation. Most states in the world, and in particular a large number of the states in which P.A.Ds live (such as the US and Canada) currently practice first-past-the-post (FPP) voting systems combined with single member electoral districts (SMDs). However, despite the widespread use of this electoral system, the weight of evidence is that it is, on the balance, harmful to efforts to ensure the full political representation and integration of racial minorities such as P.A.Ds.[11]

13. SMD/FPP systems are “winner-take-all” in nature and, as such, tend to ensure that racial and other minority interests are overwhelmed and thus diminished by the majority’s voting power within a particular electoral district, and that racial minorities (such as P.A.Ds) are rarely elected to office, outside the few electoral districts in which they form numerical majorities. This is one key reason why the P.A.Ds (who make up over 14% of the US population are rarely elected to the US Senate.[12] US senatorial districts are state-wide in nature and P.A.Ds are a minority in every US state. Barack Obama is currently the lone African-American member of the US Senate. Similarly, in Dallas and Houston, cities which had P.A.D mayors in 2000, there were during this same period virtually no elected P.A.D judges. This was so because judicial elections in Texas are conducted on a state-wide basis, even for judges that serve in specific cities like Dallas and Houston, and P.A.Ds are an even smaller minority state-wide in Texas than they are in either Dallas or Houston.[13]

14. The negative effects of the overwhelming in SMD/FPP electoral systems of P.A.D or other racial minority votes by the majority are that: a) these racial minorities are consistently denied their preference as to who will represent them; too many racial minority voters are represented by persons that they do not support; candidates that genuinely represent the interests of these racial minorities are too often deterred from contesting for office since their defeat at the hands of the majority interest in the district is all but certain; and much voter apathy among racial minorities is often fostered as a result, the feeling among them often being that they had better stay home since their votes do not really matter, and hardly makes a difference.

15. While SMD/FPP systems can be advantageous to P.A.Ds and other racial minorities in the few electoral districts in which they cluster and either form the majority or constitute a highly significant minority (as is the case with several “Black majority” Congressional districts in the USA), by contrast where P.A.Ds are more dispersed throughout the country or city (as is more often the case), SMD/FPP systems help ensure that P.A.Ds have little chance of getting elected to office or of significantly affecting the play of politics in their countries.[14]

16. Concrete illustrations from P.A.D. Diaspora countries of the largely negative effect that SMD/FPP systems have had on the political fortunes of P.A.Ds and other racial minorities are in order here. I will offer one such illustration here. In the case of Canada for example, its adherence to the SMD/FPP electoral system is seen by many observers as one of the key reasons for the significant under-representation in its political life of the visible racial minorities (such as P.A.Ds) that make up over 13% of the Canadian population.[15] As Karen Bird has put it:

“Since the mid-1970s, Canada has developed a strong public commitment to diversity and multiculturalism. Yet this appears to have had little impact on the composition of its elected bodies. At both local and national levels, visible minority groups [including P.A.Ds] are statistically under-represented.”[16]

17. The Canadian situation is so despite the fact that Canada provides quick and easy access to citizenship and voting rights to newcomers (a group that is largely composed of racial minorities).[17] The work of scholars like Karen Bird has pointed the finger at Canada’s SMD/FPP electoral system as a critical reason for this sub-optimal integration of P.A.Ds and other racial minorities in Canada’s political life.

18. Although, I am convinced that consideration of other factors such as sheer candidate selection bias is also very important in explaining this problem, I agree with Bird that Canada’s use of the SMD/FPP is indeed a key factor in its failure to fully integrate P.A.Ds and other racial minorities into its political life. Bird does not disagree with position, but seems to accord a slightly higher explanatory role to the use of SMD/FPP systems. A comparison of the high profile cases of Britain and France serves to illustrate the extent to which candidate selection bias does in fact affect the political representation of P.A.Ds and other racial minorities. Although Britain operates a classic SMD/FPP system, it has managed to provide relatively more access to political power to the racial minorities (including P.A.Ds) that constitute about 7% of its population, than France, which in 2004 had no non-overseas racial minority member at all in either its 577 member National Assembly or in its 321 person strong Senate (that is not counting the 22 deputies representing its colonial overseas territories like Martinique and Reunion).[18] Yet, France operates a similar SMD/FPP system for its national parliamentary elections (though it has also toyed with forms of the PR system); and is home to a very large number of racial minorities who make up over 12% of its population.[19] By contrast, during the same period, Britain did boast of 12 or so racial minority MPs, who constituted just under 2% of its 646 person strong House of Commons, although only four or so of these MPs were P.A.Ds in the sense of being “blacks.” While the British numbers are still clearly sub-optimal, they are far greater than France’s zero performance in this regard. Clearly, the key factor in these two cases was not whether or not the relevant country practised the SMD/FPP electoral system. Sheer candidate selection bias (or the lack of it); the closed nature of electoral politics in France; France’s longstanding “denial” of its racial minority problem, and other such factors seem to be more important factors in explaining these particular cases.

19. However, despite the role that candidate selection bias and other such factors tend to play in producing P.A.D political under-representation, the fact remains that, on their own, SMD/FPP systems tend to pose a formidable obstacle to the fuller integration of P.A.Ds and other such racial minorities into the political life of their states.[20] As the statistics provided above show, even in Britain, the level of political representation and influence enjoyed by P.A.Ds and other racial minorities is still very far from being proportional to their share of the general population of the country. Thus, identifying and implementing the electoral reforms that could ameliorate the problems posed for P.A.Ds by SMD/FPP systems is key to advancing the cause of their fuller integration in the political life of their countries. One such electoral reform is the embrace of proportional representation style electoral systems.

20. By contrast to SMD/FPP systems, proportional representation (PR) voting systems (especially when accompanied by some form of preference voting) have been touted by scholars like Karen Bird, Lani Guinier, Michael MacCann, and Mary Inman to be, on the balance, much better ameliorating the under-representation of P.A.Ds in political life and improving their political voice.[21] The most common and favoured kind of PR system is the list system that is operated in states such as South Africa and Denmark. Under the most common version of this system, each party is required during every election season to submit a list of their candidates for election to parliament. The names of this list are ranked according to the priority that the party attaches to the election of each of the candidates contained so listed. A party’s share of the vote determines their numerical share of the available parliamentary seats. That party’s share of these seats is then allocated to those on the party’s list starting from the highest ranked candidates, until the party’s share of the seats is exhausted.

21. The main advantages of the PR system for P.A.Ds and other racial minorities are that:

1. Since parliamentary or other seats are allocated in the proportion of the votes cast for a particular party, parties seeking the P.A.D vote have a powerful incentive to include P.A.D candidates on their electoral lists, else P.A.Ds could break away and form their own parties that can then canvass for and likely attract most of the very P.A.D vote that their current parties would rather get. In the case of Canada, were P.A.Ds to form their own party under a PR system, they could get up to 3% of the gross vote and thus become entitled to 3% of the seats in Parliament (that is about 9 seats). This number of seats will far outnumber the 3 seats that P.A.Ds currently occupy. Thus, under a PR system, most reasonable political parties would feel a strong incentive to allocate as many as 3% of the highly ranked name positions on their candidate lists to P.A.Ds.

2. PR systems would also tend to allow P.A.Ds the opportunity to vote for and elect those persons who they themselves (and not the general public or the majority) see as their genuine representatives, and who will be more likely to aggressively push their concerns within the political system. Under this system, parties seeking the P.A.D vote will be more unlikely to field P.A.D candidates that do not enjoy the confidence of their community, and who are therefore less likely to attract a significant portion of the P.A.D vote.

3. The adoption of a PR system also tends to increase P.A.D voter participation, and as such increase their leverage on the political process. This is so because P.A.D voters will become aware that their votes are now important or even critical, and also because P.A.D candidates will tend to have an enhanced incentive to get out even more of the P.A.D vote for their party and therefore justify their placement and higher rankings on their party’s candidate list.

4. The adoption of a PR system also tends to encourage more P.A.D. candidates to run for office. This is so because even more potential P.A.D. candidates will be encouraged by the fact that they now have a real or enhanced chance of getting elected.

22. However, seen from the perspective of the fuller political integration of P.A.Ds, the PR system can still be seen as burdened by a number of notable, though not fatal, drawbacks.

23. The first is that a PR system could encourage the formation of relatively small one-issue, extremist, neo-NAZI, neo-fascist, or racist parties that are opposed to the political integration or human rights of P.A.Ds. Gored on by the prospect of the increased visibility that would be brought to their cause by winning even one seat in parliament, such parties could be highlighted and buoyed politically, rather than diminished, by PR systems that almost invariably allow the increased representation of all kinds of minority interests in politics (and not just of P.A.Ds and racial minorities). One answer to this question regarding the suitability of PR systems for addressing the political under-representation of P.A.Ds is that even such racist or extreme elements should not be completely denied access to politics; it is often better for P.A.Ds that these extremists are forced into the open, highlighted, and confronted, rather than driven underground. The insidious racism that they perpetrate while underground is often much more difficult to prove and even more destructive. In any case, as the South African, Isreali and German situations show, such extremist parties are, more often than not, in the small minority. Another answer is that such parties have already emerged and gained a measure of political influence even in states that operate SMD/FPP systems, such as Britain (the British National Party etc), France (Le Pen’s National Front), and Canada (elements of the old Reform Party).

24. The second objection that can be made to the PR system is that P.A.D politicians elected under it will be even more tied to their P.A.D political base, to which they will almost exclusively owe their election, and will therefore have little incentive to build inter-racial and inter-interest coalitions. One answer here is that it would not be such a bad thing to see more P.A.D politicians in tune with their P.A.D supporters and working aggressively on their behalf. Secondly, there is little evidence that P.A.D politicians will not continue to build coalitions with like-minded groups. The US civil rights movement was and continues to represent such a coalition, and P.A.D. politicians will of course realise that they can achieve far more for their P.A.D. base when they build inter-racial and inter-interest coalitions with like-minded groups.

25. The third possible objection is that many non-P.A.D. politicians elected under the PR system (especially the really conservative ones) will have even less of an incentive to engage with P.A.Ds or other racial minorities since they clearly do not owe their election to these P.A.Ds in any significant measure. One answer here is that even under the SMD/FPP system operated in key Diaspora states, such really conservative politicians almost never owe their election to P.A.D vote (which tends to go to more liberal parties and politicians (such as the US Democrats, the Canadian NDP and Liberals, the French Socialists, and the British Labour Party). As such, they currently tend to ignore the views of most of P.A.D voters. And it is difficult to see how a transition to a PR system can make them more conservative than they already are. If anything, the increased P.A.D political leverage that PR systems will likely produce will diminish correspondingly the power of these conservatives to produce legislation and policies that harm the interests of most P.A.D voters.

26. The fourth and last major objection that could be raised to the possible use of PR systems to redress the under-representation of P.A.Ds in political life is that under the PR system, the lists of candidates submitted by parties are unlikely to position P.A.Ds at or near the top so as to assure their election to office. The point that proponents of this view often make is that since P.A.Ds are rarely included in among the power brokers that compose these lists, candidate selection bias will be as prevalent under the proposed PR system as it already is under the SMD/FPP system. This point is conceded to some extent. For as we have seen, even in the local elections in France in which a candidate list system was used, candidate selection bias all but ensured the relative absence of racial minorities from powerful positions in French local governments.[22] However, one answer to this objection is that it is still possible to construct a version of the PR system that deals squarely with this problem. Karen Bird has referred to this system as “proportional representation combined with preference voting.”[23] I shall refer to it as the PRPV system.

27. When combined with a preference voting system in which individual voters can, if they so choose, alter a particular candidate’s priority ranking on a party’s list, PR systems have been shown to help ameliorate the negative effect of candidate selection bias on the election to office of racial minorities such as P.A.Ds. Such PRPV systems help control to a significant extent the negative effect that the influence of established local or national party barons, inner caucuses or “Old-Boy Networks” (usually not constituted by persons of racial minority or P.A.D. stock) can have both on the inclusion of P.A.Ds on a given party’s candidate list and on the placement of these P.A.D. candidates at or near the top of such lists. It is in this light that I am in complete agreement with Bird, that the PRPV system “may be the most preferable electoral system for ethnic minorities.”[24]

28. The PRPV system that currently operates in Denmark provides the best example of the capacity of a PRPV system to transform positively the political situation of racial minorities, including P.A.Ds.[25] The use of the PRPV system in that country has led to quite dramatic results. As Karen Bird has shown, the use of this system is largely credited for ensuring that regardless of the increasingly anti-immigrant (and thus anti-racial minority) tone of Danish politics, especially at the national level, the Danish record of electing to office candidates that belong to the racial minorities who make up 15% of its population is, at least statistically speaking, better than most in Europe (and is rivalled only by Belgium and the Netherlands).[26] In 2001, for the first time in Danish history, the numbers of ethnic minorities elected in their major cities approached proportionality to their numbers in the general population in those cities.[27] And also for the first time ever, 2 racial minority politicians were elected to the 179-member Danish Parliament (that is 1.12%). This immediate zero to 1.12% increase record is still impressive even when compared to the Canadian situation regarding racial minorities as a whole and not just P.A.Ds (which is far worse at the local level, though admittedly better at the parliamentary level).[28]

29. It is very important to point out that the “preference voting (PV)” part of the PRPV system was as key to the success enjoyed by racial minorities in Denmark as the “proportional representation (PR)” part. For of what use is the PR system to P.A.Ds if party barons refuse to include P.A.D. candidates on their candidates lists (as has happened in France); or, as is more likely to occur, tend to rank these P.A.D candidates low on these lists (as has also happened in France)?[29] As Bird has shown in her discussion of the Danish situation, it was the PV aspect of the PRPV system that enabled the eventual election of two racial minority candidates who were placed by the party in the unelectable 16th and 22nd positions on the party’s candidate list.[30] Voters simply exercised their preference and voted them into the 7th and 8th positions, thereby altering the party’s ranking and causing the election of these racial minorities to office.[31]

30. As importantly as well, the Danish example confirms that the PFPV system does increase voter turnout among racial minorities; and enhances the incentive for racial minority candidates to mobilise their communities for support, especially in terms of increased voter registration and turnout (such large turnouts result in more preferential votes and higher election prospects for these candidates). Consequently, the PRPV system also provides a strong incentive to political parties to place P.A.Ds and other racial minorities on their candidate lists and in good positions thereon. This is so because parties benefit often enough from the increased voter turnouts that these racial minority candidates are able to generate.

31. In this light, this Working Group should, in my own view, seriously consider urging the political parties that operate in the countries of the P.A.D Diaspora in which P.A.D. minority populations exist to express strong support for the establishment of PRPV, and not just PR, electoral systems in the relevant countries. This is one of the more important roles that these parties can play in advancing the struggle to integrate P.A.Ds in the political life of those countries.

3. Racial Affirmative Action Policies and Programs

32. Despite the sustained head on assaults that have been launched on race-based affirmative action programs in the US, including by the increasingly conservative US Supreme Court,[32] Jennifer Hochschild’s work, inter alia, has shown that more support for such remedial positive action exists in the US than is widely acknowledged or reflected by the many politicians who too often demagogue the subject for short term political gain.[33] As Hochschild found, it is politicians and other opinion leaders who actively polarize the US public on this issue, and not the other way round. Thus, at the very least, politicians and political parties owe P.A.Ds and the general public, a negative duty to refrain from inflammatory and scare-mongering statements and tactics regarding sensitive issues that are of vital importance to redressing the political exclusion of P.A.Ds and other racial minorities.

33. On the other hand, political parties in these states also need to do more than simply get their members to refrain from such conduct. Every such party ought to institute meaningful affirmative action policies/programs of their own with set targets/goals for the equitable representation of P.A.Ds. In this connection, it is noteworthy that other than the Canadian New Democratic Party [NDP] (that has candidate nomination rules designed to achieve its racial and other affirmative action goals and aims to field a slate of candidates of whom at least fifty percent were chosen on an affirmative action basis such as race or gender)[34] and the US Democratic Party [DP] (which requires the equitable representation of P.A.Ds and other racial minorities in all party affairs and mandates internal affirmative action programs with specific goals and timetables), virtually no other major party in Canada or the US has instituted or institutionalized a meaningful set of racial affirmative action policies or programs with clear goals and targets, and that is monitored for compliance, however loosely. The US Republican Party (RP) merely enjoins state republican parties and the Republican National Committee to “take positive action to achieve the broadest possible participation by minority and heritage groups” in the delegate selection process, but does not set any goals or targets regarding the actual representation of these racial minorities as delegates, what more as candidates.[35] Similarly, the Conservative Party of Canada does not seem to have any such policy/program.[36]If it does, it is not mentioned or mandated anywhere in its constitution. For its part, the Constitution of the Liberal Party of Canada does commendably speak of the party’s vision of a multicultural Canada; requires the equitable representation of aboriginal peoples in party affairs; and sets up a standing committee on multiculturalism that is to encourage the participation of racial minorities in party affairs. However, even the Canadian Liberals are silent on clear targets/goals for the proportional representation of racial minorities in the party’s structure and on the party’s college of candidates.

34. Yet the fact that affirmative policies, albeit of the gender variety, are necessary in order to redress the incidence of political exclusion is now widely acknowledged, at least in its gender dimension. For example, the two major US parties have instituted to varying degrees their own gender affirmative action program. In the remarkable case of the DP, a 50-50 gender quota has been instituted with respect to the selection of delegates to its National Conventions, and a less stringent form of this principle is applied to the composition of its national party officials.[37] In France, such gender parity has been imposed by the French Constitution itself, supported by a subsidiary statute.[38] And the French Socialist Party’s bold gender affirmative action policies were critical to the election of sixty female members of the French national Assembly.[39] Given this acceptance of gender affirmative action, there is simply no good reason why similar racial affirmative action policies/programs should not be instituted or mandated by political parties and states in the countries to which P.A.Ds belong.

4. Racial Diversity Commissions/Ombudspersons

35. Given the necessity for the institution of racial affirmative action policies/programs by the relevant political parties, it is important that such parties also establish internal but relatively independent machinery to monitor and further the implementation of such policies/programs. Such racial diversity commissions/ombuds should also collect relevant data, study the issue, critique party policy and practices, and make recommendations for improvement. These internal party institutions should also be authorised to submit annual reports to the relevant national human rights institutions.

5. Internal Codes of Conduct

36. This was explicitly recommended in Paragraph 115 of the Durban Declaration and Programme of Action.

6. Automatic Voter Registration with an Opt-out Clause[40]

37. The intentional, negligent, or mistaken disenfranchisement of P.A.D voters on the basis of their failure to register and their consequent absence from the voting rolls is one factor that has historically grounded their political marginalization in some Diaspora countries. One way of ameliorating this problem is for the relevant election commissions to automatically register every citizen of the relevant country when they attain the age of 18, while allowing those who do not wish to be on that role to opt-out in person. Since the problem of omitting citizens from voting rolls disproportionately affects P.A.Ds, the automatic registration of all adults should conversely be of benefit to the struggle to integrate P.A.Ds in the political life of many Diaspora countries. Political parties should therefore be urged to support such a program of automatic voter registration.

7. Bringing Out and Defending the P.A.D. Vote

38. The intentional or unintentional suppression of the P.A.D vote via has been a major obstacle to the full integration of P.A.Ds in the political life of some Diaspora countries, especially the US. The tactics adopted have been numerous and varied, some more despicable and harmful than others. For instance, during the 2000 US presidential polls, many civil rights workers and democratic activists alleged that thousands of qualified P.A.Ds were purged from the rolls in the guise of keeping unqualified felons from taking part in that vote.[41] They also alleged that voting machines rejected the votes cast by P.A.Ds at an alarmingly disproportionate rate.[42] Similarly, during the 2004 presidential elections, activists also charged that thousands of P.A.D voters wound up being turned away from the polls because of the prevalence of long lines and broken voting machines in some districts with large P.A.D populations.[43] It was alleged that the intention was to keep as many P.A.Ds from voting as possible. The use of these tactics, if true, is truly reprehensible and reminds one of the terrible “Jim Crow” regime in the Southern US. At a minimum, parties should have a legal and moral obligation to bring out, not suppress, the P.A.D vote. What is more, parties ought to participate actively in defending the P.A.D vote against those who would suppress it. In reality, however, some parties do not have any incentive to bring out or defend the P.A.D vote (which almost always is cast against them). Here, the state has an important role to play in providing the strong disincentive of effective criminal prosecution of the members of those parties that are likely to be tempted to take or support actions that are intended to suppress the P.A.D vote.

8. Campaign Finance Reform

39. Given the clarity of the evidence to the effect that P.A.Ds are alarmingly over-represented among poor US, Canadian, Brazilian, and British Citizens (to name just a few such Diaspora states), it should follow that the more influence large monetary donations have over political party decision-making and electoral processes, the less political leverage P.A.Ds (and most other racial minorities) will have, and the less political integration they can achieve. Indeed, as Spencer Overton has shown, studies have clearly indicated that although racial minorities comprise over 30% of the US population, they represent a mere one percent of those who make significant political contributions to federal campaigns in that country. As such, bearing in mind the need to achieve the equitable representation of P.A.DS in political life, a goal that is harder to attain when political parties fall into the firm grip of the money elite (who are rarely identifiable as P.A.Ds), political parties in the relevant Diaspora countries should be encouraged by this Working Group to seek ways of effectively ameliorating the undue influence of large monetary donations on political decision-making.

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* Associate Professor, Osgoode Hall Law School, York University, Toronto, Canada. I am grateful to Pius Okoronkwo for his research assistance.

[1] See T. Smith, “Parties and Transformative Politics” (2000) 100 Columbia Law Review 845, at 845-846.

[2] Ibid.

[3] See Report of the World Conference against Racism, Racial Discrimination, Xenophobia and related Intolerance, Durban, 31 August – 8 September 2001, UN Doc. A/CONF.189/12, paragraph 115 of the Programme of Action, at 50.

[4] See T. Smith, supra note 1, at 847-849.

[5] See J.A. Lindgren Alves, “The Durban Conference against Racism and Everyone's Responsibilities” (2003) University of San Francisco Law School 971, at 975-976.

[6] See K. Bird, “Unequal Gains: Patterns of Ethnic Minority Representation in the Political Systems of France, Denmark and Canada” (paper presented at the IPSA-RC14 Meeting in Ottawa, Canada, 1 October 2004), at 2.

[7] Ibid, at 8.

[8] Ibid.

[9] Ibid, at 4-5.

[10] I owe some of the statistics used and thoughts expressed in this sub-section to Karen Bird’s excellent paper on the subject. See K. Bird, supra note 6.

[11] See M. MacCann, “A Vote Cast; A Vote Counted: Quantifying Voting Rights through Proportional Representation in Congressional Elections” (2002) 12 Kansas Journal of Law and Public Policy 191, at 191-192.

[12] Ibid, at 192.

[13] See M. Carrington, “In Struggle against Jim Crow: Lulu White and the NAACP 1990-1957” (2000) 26 Thurgood Marshall Law Review 107, at 125-126.

[14] See K. Bird, supra note 6 at 9 and 34-35.

[15] As Bird has reported, even in Canada’s three largest cities of Vancouver, Toronto, and Montreal (with the largest concentration of racial minorities in the country), the percentage of elected offices held by minorities is in each city just a little more than one-third of the way toward becoming proportional to their share of the general population in those cities. In national politics, the same situation applies. These minorities are now about forty percent of the way to the goal of proportionality, down from the fifty-six percent mark in 1997. See ibid, at 32-33.

[16] Ibid, at 32. Emphasis supplied.

[17] Immigrant permanent residents become citizens after three years of residence in Canada. See ibid, at 33.

[18] Ibid, at 14.

[19] Ibid, at 14-16.

[20] See M. MacCann, supra note 11.

[21] See K. Bird, supra note 6; L. Guinier, “The Representation of Minority Interests: The Question of Single-Member Districts” (1993) 14 Cardozo Law Review 1135; M. MacCann, supra note 11; and M. Inman, “C.P.R (Change through Proportional Representation): Resuscitating a Federal Electoral System” (1993) 141 University of Pennsylvania Law Review 1991.

[22] See K. Bird, supra note 6, at 23.

[23] Ibid, at 9.

[24] Ibid.

[25] Ibid, at 27-29.

[26] Ibid, at 24-25.

[27] Ibid, at 24.

[28] Ibid.

[29] Ibid, at 23.

[30] Ibid, at 28.

[31] Ibid.

[32] See A.C. Jayne, “Affirmative Action in the Public Sector: The Admissibility of Post-enactment Evidence of Discrimination to Provide a Compelling Governmental Interest” (2002) 55 Okhlahoma Law Review 121, at 121-123.

[33] See J.L. Hochschild, “The Strange Career of Affirmative Action” (1998) 59 Ohio State Law Journal 997, at 1000-1003.

[34] See Constitution of the New Democratic Party of Canada, as amended by the Federal Convention, Winnipeg 2001 (on file with the author), Article XV(2); and K. Bird, supra note 6, at 35.

[35] See Rule 14(b) of the Rules of the US Republican Party (on file with the author).

[36] See the Constitution of the Conservative Party of Canada, as amended on March 19, 2005 (on file with this author).

[37] See the Charter and Bylaws of the Democratic Party, as amended by the Democratic National Committee, 3 October 2003 (on file with the author).

[38] See the Constitution of the 5th Republic of France (as amended in 1999). See also C. Zoethout, “Parity Rights for Women in France: Yes to the Final Result, but No to the Underlying Principle” (2001) 7 Ius Gentium 165, at 172.

[39] See C. Zoethout, ibid, at footnote 1.

[40] The author is indebted to J.P.W. Halperin for his work on this issue. See J.P.W. Halperin, “A Winner at the Polls: A Proposal for mandatory Voter Registration” (1999) 3 New York University Journal of Legislation and Public Policy 69, at 110-112.

[41] See the San Francisco Chronicle, 5 August 2005, at 2 (of internet copy).

[42] See S. Overton, “A Place at the Table: Bush v. Gore through the Lens of Race” (2001) 29 Florida State University Law Review 469, at 469-470.

[43] See the San Francisco Chronicle, supra note 41.

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