Every citizen has the right of access to public service within his or her country, without distinction and on general terms of equality. To ensure this, the criteria and processes for appointment, promotion, suspension and dismissal must be objective and reasonable. a ffirmative measures may be taken in appropriate cases to ensure that there is equal access to public service for all citizens.163 To ensure that the right is capable of being truly exercised, rather than being a right in name alone, persons holding public service positions must be free from political interference or pressures. it is of particular importance to ensure that persons do not suffer discrimination on any of the grounds set out in article 2(1).164 Mpandajila v Zaire concerned a group of former parliamentarians in Zaire who, during 1982, were negotiating with representatives of the President of Zaire concerning the establishment of a new political party. Seven of them were arrested and subsequently all 12 were brought to trial before the State Security Court on charges of plotting to overthrow the regime and planning to establish a political party. The Committee did not give views on whether this constituted a violation of article 22, as claimed by the former parliamentarians, but did find violations of articles 19 (freedom of expression) and 25 (electoral rights).165 in Mpaka-Nsusu v Zaire, the author presented his candidacy for the presidency of the Government Party and, at the same time, for the presidency of Zaire in conformity with existing Zairian law. The author was refused those requests and the Committee found this to be in violation of article 25 of the Covenant.166
Munoz v Peru concerned an administrative decision by which the author was suspended from police service on disciplinary grounds (for the alleged offence of insulting a superior) and later discharged from service. a lthough the majority of the Committee adopted views based upon a violation of article 14 (judicial process),167 Committee member Bertil Wennergren took the view that the facts of the communication also disclosed a violation of article 25(c). He was of the view that the suspension and discharge from the Peruvian Guardia Civil were not founded upon objective and justifiable grounds. Whatever the ground may have been, whether, for instance, political or merely subjective, he considered it to be arbitrary. The Committee member said that ‘to suspend and discharge someone arbitrarily, from public service and to refuse him reinstatement, just as arbitrarily, constitutes, in my opinion, a violation of his right, under article 25(c) of the Covenant, to have access on general terms of equality to public service’.168
163 See further Chapter 3.
164 General Comment 25, above n 86, para 23.
165 Mpandajila v Zaire, above n 9, para 9.
166 Mpaka-Nsusu v Zaire, above n 10, para 10.
167 Munoz v Peru, Communication 203/1986, UN Doc CCPR/C/34/D/203/1986 (1988), para 12.
E1BS6C8O Pubilbiisdhi,nag p:peeBnoodkixAcaiide,mpicarCaol4l.ection (EBSCOhost) - printed on 3/11/2014 5:52 PM via UTICA
Following an attempted coup d’état in Cameroon in 1984, the author in Mazou v Cameroon, who at that time was a second class magistrate, was arrested on suspicion of having sheltered his brother, who was wanted by the police for having taken part in the coup. The author was found guilty and sentenced by a military court to five years’ imprisonment. While the author was detained, the President of Cameroon signed a decree removing the author from his post as Secretary-General in the Ministry of Education and Chairman of the Governing Council of the National Sports Office. The Decree gave no reasons for the action. Mr Mazou requested reinstatement following his release and, in 1997, obtained a ruling from the Supreme Court holding the 1984 decree illegal and annulled. Despite that decision, the Committee was concerned by the tardiness of the decision, made more than ten years after the author’s removal from his post, and the fact that it was not followed by restoration of his career on reinstatement. This could not, the Committee found, be considered to be a satisfactory remedy within the meaning of articles 2 and 25 of the Covenant.169
Securing access to the public sector Gedumbe v Democratic Republic of Congo concerned a failure by the State to adequately secure the communicant’s employment in the public service. in 1985 the author was appointed director of a Zairian consular school in Burundi. He was suspended in 1988 by Mboloko ikolo, the then Zairian ambassador to Burundi. This was allegedly in response to a complaint by the author and by other staff members of the school to several administrative authorities of Zaire concerning the embezzlement by Mr ikolo of the salaries for the personnel of the consular school. in September 1989 the Ministry of Primary and Secondary Education issued an order to reinstate the author in his post. Subsequently, however, Mr ikolo informed the authorities in Zaire that the author was a member of a network of political opponents of the Zairian Government, and requested the authorities of Burundi to expel him. The author said that, for this reason, Mr ikolo and his successor refused to reinstate him in his post or to pay his salary arrears. in the absence of a response by the State party, the Committee found that the facts showed that the decisions by the authorities in the author’s favour had not been acted upon and could not be regarded as an effective remedy for violation of article 25(c), read in conjunction with article 2 of the Covenant.170
Interface with discrimination it is notable that a number of communications concerning violation of article 25(c) have come before the Committee in combination with allegations of discrimination under article 26. Such claims
169 Mazou v Cameroon, Communication 630/1995, UN Doc CCPR/C/72/D/630/1995 (2001), para 8.4.
170 Gedumbe v Democratic Republic of Congo, Communication 641/1995, UN Doc CCPR/C/75/D/641/1995 (2002), para 5.2. See also Vargas-Machuca v Peru, Communication 906E/B2S0CO00Pu,bUlisNhinDgo:ceCBoCokPARca/dCem/i7c5C/Doll/9ec0t6io/n20(E0B0SCO(h2o0st0)2-),pprianrtaed7.o4n.3/11/2014 5:52 PM via UTICA
have in general seen the Committee make its findings in reliance upon article 26, rather than article 25(c).171 in Costa v Uruguay, the Committee was called upon to consider what might be described as ‘affirmative action’. The author had submitted job applications to various governmental agencies, seeking employment in the public service. He was told that only former public employees who were dismissed as a result of the application of institutional a ct No 7 of June 1977, under the former military regime, were at that time being admitted to the public service. The author claimed that this created an inequality to public access, in violation of article 25(c). The Committee took a pragmatic approach. Taking into account the social and political situation in Uruguay during the years of military rule, in particular the dismissal of many public servants pursuant to institutional a ct No 7, the Committee considered that the new legislation, adopted and implemented by the new democratic Government of Uruguay, was a measure of redress. The Committee observed that Uruguayan public officials that had been dismissed on ideological, political or trade-union grounds (clearly victims of violations of article 25 in the Committee’s view) and were thus entitled to have an effective remedy under article 2(3)(a) of the Covenant. implementation of the new legislation should, in that context, be looked upon as such a remedy and could not be regarded as incompatible with the reference to ‘general terms of equality’ in article 25(c) of the Covenant.172The Committee accepted, in Solís v Peru, that age limits used for continued post occupancy was an objective distinguishing criterion and that its implementation in the context of a general plan for the restructuring of the civil service was not unreasonable.173
See further Chapter 3.