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the constitutional recognition of customary law in South Africa and the Plurinational State of
Bolivia. While none of these arrangements can be regarded as fully adequate in practice, they
still may be useful points of deliberation. They reflect, in line with modern conceptions within
the international human rights regime, the idea that indigenous social and political structures are
valuable components of the overall democratic process, which can coexist with other governance
structures while fostering the decentralization of powers and the promotion of indigenous
cultures and societies.
2. Participation and consultation
65. The second, complementary dimension of self-determination concerns indigenous
participation in the larger social and political order. In this regard, indigenous peoples have the
right to participate in State decision-making on a footing equal to that of all others3 and, as
already stressed, to be consulted through their own representative institutions when their
particular interests are affected by the decisions of any State institution or Government actor.4
With the decentralization of power that federalism implies, this will require measures to ensure
indigenous participation, not just at the national level, but also in federal and other units of local
Government. Effective use of reservation or quota systems, such as that provided for in the Local
Governance Act but not adequately implemented, could be an important starting point. In this
regard useful points of reference are the quota or reservation systems in place in India, Burundi,
Venezuela and Colombia to ensure ethnic or indigenous inclusion in legislative or administrative
bodies.
66. In its current configuration, the political party system in Nepal seems to not be fully
conducive to indigenous peoples’ effective representation and participation in decision-making
at various levels, from the Constituent Assembly to local governance. In many instances, this is
due to internal decision-making structures and practices within existing political parties, which,
due to a number of inherited dynamics, have historically tended to overlook indigenous peoples’
specific concerns. The Special Rapporteur is fully conscious of the essential role that political
parties play in institutionalizing participation and ensuring inclusive representation in Nepal’s
ongoing transition. Yet, in relation to indigenous peoples and other marginalized communities,
special mechanisms may be required in order to ensure their effective enjoyment of the right
to political participation. As pointed out by the Inter-American Court of Human Rights in
Yatama v. Nicaragua (2005), and as illustrated in countries such as the Plurinational State of
Bolivia or Ecuador, these special mechanisms may include the opening of participation in
elections for representative bodies of electoral organizations or civic movements other than
political parties representing specific indigenous peoples.
67. In addition to their right to full participation in the political mainstream, indigenous
peoples are entitled to special consultation procedures, in accordance with Convention 169 and
the United Nations Declaration, when Government decisions are made that affect indigenous
peoples’ legitimate interests in specific ways that are not generally shared by others in society.
3
United Nations Declaration, art. 5.
4
United Nations Declaration, art. 19; Convention 169, arts. 6-7.