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COMMITTEE ON ELIMINATION OF RACIAL DISCRIMINATION CONSIDERS REPORT OF GUATEMALA
27 February 2006
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Committee on the Elimination
of Racial Discrimination
27 February 2006
The Committee on the Elimination of Racial Discrimination has considered the eighth to eleventh periodic reports of Guatemala on its implementation of the provisions of the International Convention on the Elimination of all Forms of Racial Discrimination.
Presenting the report, Ricardo Cajas Mejía, Coordinator General of the Presidential Commission to Combat Discrimination and Racism against Indigenous Peoples in Guatemala, said that over the last year and a half, the Commission had been reviewing the situation of discrimination in Guatemala with a view to bringing it in line with Guatemala's obligations under the peace accord. A three-year programme of work to address the urgent situation of discrimination in the country had been undertaken. A number of administrative bodies for the preservation of indigenous culture and languages had been established or were in the course of construction, including the Academy of Mayan Languages and Xinca and Garifuna community centres. The justice system was being overhauled to ensure indigenous access and a research centre had been established to draft a global public policy on indigenous affairs. The Office of the Ombudsman for Indigenous Peoples, within the Public Prosecutors Office, had been created to address discrimination in the justice system, and a law guaranteeing protection of the rights of indigenous women had been enacted, among others.
Of prime importance, Mr. Cajas Mejía said, was the recognition of the problem of discrimination by the whole society and Guatemalan society's commitment to address the issue. Guatemala was on the right track and it was ready to participate with the Committee and foster the process of change.
In preliminary remarks, Alexei Avtonomov, the Committee Expert who served as country Rapporteur for Guatemala, said he was encouraged to see that new mechanisms had been put in place to ensure greater access by indigenous peoples to justice. Greater security regarding land tenure, however, remained a concern. Overall, the Government of Guatemala appeared determined to forge a multicultural, multilingual and multiethnic society, which was the most important thing.
Committee Experts also asked about the issue of mining licenses that had been granted to indigenous lands; access to justice for indigenous peoples; the right of the indigenous peoples to land; the effective exclusion of indigenous peoples from the right to enjoy their political rights; the lack of indigenous persons in high positions in the Government; the lack of disaggregated data on indigenous peoples and other minorities concerning their enjoyment of their human rights; and the issue of compensation for harms suffered, including rehabilitation for victims of discrimination.
The Committee will present its written observations and recommendations on the eighth to eleventh periodic reports of Guatemala, which were presented in one document, at the end of its session, which concludes on 10 March.
When the Committee reconvenes at 3 p.m. this afternoon, it is scheduled to take up the ninth to thirteenth periodic reports of El Salvador (CERD/C/471/Add.1).
Report of Guatemala
The eighth to eleventh periodic reports of Guatemala, submitted in one document (CERD/C/469/Add.1), state that the current Government of Guatemala has expressed an interest and a clear willingness to make Guatemala a multi-ethnic, pluricultural and multilingual nation, as evidenced by the institutions and teams of specialists that have been established to implement initiatives to eradicate attitudes of discrimination that persist in all sectors of Guatemalan society. Nevertheless, the report says that without the requisite support for those initiatives on the part of the entire population, as well as international organizations, many of the Government's commitments remain unfulfilled. This means that any discussion of the situation of the Maya, Xinca and Garifuna peoples is extremely difficult because it is a long-standing problem where racial and ethnic discrimination are encountered on a daily basis.
Attitudes of disdain and rejection towards indigenous people are still evident in different sectors. In some media, there is prejudice against various aspects of their culture, such as their spirituality and the use of their language. In general, indigenous people are at a disadvantage with regard to access to the benefits of development and socio-political participation. Mechanisms that provide access to justice are essential for overcoming the high levels of discrimination and facilitating the exercise by indigenous peoples of their basic rights. The State institutions established to deal with indigenous matters do not have budgets that enable them to operate efficiently and to meet the needs of the population concerned. The report states that efforts must be made to end the dominance over indigenous peoples which has made use of such models as assimilation, standardization, integration, segregation, folklorism and alienation, the ultimate aim of which is to maintain economic, political, sociocultural and spiritual control over indigenous peoples. Action must be take to enable the State to overcome the current situation of violence, authoritarianisms, intolerance and social exclusion.
Presentation of Report
RICARDO CAJAS MEJÍA, Coordinator General of the Presidential Commission to Combat Discrimination and Racism against Indigenous Peoples in Guatemala, said the report contained an outline of racial discrimination in Guatemala and the initiatives undertaken by the State to sanction and prevent acts of discrimination in the country. Over the last year and a half, the Commission had been reviewing the situation related to discrimination in Guatemala to bring it in line with Guatemala's obligations under the peace accord signed between the Government and representatives of the Guatemalan Nation Revolutionary Unity Party, after 36 years of war. The Commission had undertaken a three-year programme of work to address the urgent situation with regard to discriminatory practice in the country, which had both structural and historical origins.
There was no doubt that conditions had changed in the country over the course of the long war and the establishment of a new administration. While imperfect in some respects, the 2002 census was a very valuable tool with regard to the information it provided on the languages spoken, illiteracy and educational assistance.
The delegation before the Committee today was led by indigenous representatives, Mr. Cajas Mejía remarked, and that bore testimony to a new policy of inclusion of indigenous peoples in public and political affairs. It could not be overstated what a major advance that fact alone represented for Guatemala. Other examples of that inclusion were the establishment of the Academy of Mayan Languages, a community centre for the Xinca and Garifuna communities, which was currently being built, and the planned construction of a cultural centre for the Xinca. The justice system was being overhauled to address the issue of indigenous peoples' access to it. A research centre had been established where academics and indigenous leaders were working together to draft a global public policy on indigenous affairs. A group of indigenous experts had also been set up. Indigenous issues were being mainstreamed in Government ministries, including the Ministry of Culture and Sport and the Ministry of Education. The Office of the Ombudsman for Indigenous Peoples, within the Public Prosecutors Office, had been created to address discrimination in the justice system, and a law guaranteeing protection of the rights of indigenous women had been enacted, among others.
The Guatemalan Vice-President's apology last year for the massacre at Plan de Sanchez was another token that the Government admitted the extent of the problem and was taking responsibility for addressing it, Mr. Cajas Mejía said. There was value in the Government's admission that Guatemalan society was not just racist, but was very racist. That was an important step in the awareness-raising that was needed to effect change in the future. Indigenous policy in the country was not being built in a top-down manner from the President's office, but was the result of a collaborative effort between indigenous peoples and the Governmental authorities, which was a requirement of the new Constitution.
The Guatemalan system was one that marginalized, excluded and denied access to rights. That could not be denied or ignored. In the light of that observation, the report should perhaps best be viewed as a forward-looking expression of what Guatemala would like to do in the future. The pain and the burden of the past could not possibly be forgotten and should never be neglected, but it could be transformed into a strength for the future. Guatemala was on the right track and it was ready to participate with the Committee and foster the process of change.
Continuing with the introduction of the report, other members of the delegation said that the Government recognized the shortcomings of Guatemalan society, but was ready to address them. Most of the activities undertaken so far were in the administrative sphere, and they had been fruitful in the sense that many new structures had been created. Those bodies remained weak, however, and it remained to consolidate them and make them more effective. Some successes could be claimed, however. For example procedural reform in the justice system meant that the prosecutor's office was now able to present specific data on cases of racial discrimination. Three years ago only two such cases had been raised. In the last year, 65 such complaints had been lodged, though admittedly, only two such cases had been taken up by the courts.
Guatemala would continue to fight the good fight. In undertaking that task the support and assistance of the Committee was greatly appreciated.
CARLOS RAMÍRO MARTÍNEZ, Permanent Representative of Guatemala to the United Nations Office at Geneva, said that he would like to reiterate the commitment of Guatemala to work on the reports and follow up on the recommendations of the Committee. The Government had demonstrated its good will in this area, he said.
Oral Questions Raised by the Rapporteur and Experts
ALEXEI AVTONOMOV, the Committee Expert serving as Country Rapporteur for Guatemala, said that for several years, the Committee had been working with the State party. During that time, Guatemala had acceded to a number of international human rights instruments, including the Convention on the Protection of Migrant Workers and Their Families, the Inter-American Convention for the Elimination of All Forms of Discrimination against Handicapped Persons, and the Additional Protocol of the American Convention on Human Rights, concerning economic, social and cultural rights (the San Salvador Protocol). It was also to be commended, Mr. Avtonomov said, that Guatemala had not issued any reservations or declarations on specific provisions of the International Convention on the Elimination of all Forms of Racial Discrimination.
Whereas 57 per cent of Guatemala's population lived in poverty and 21 per cent in extreme poverty, Guatemala was not a poor country, Mr. Avtonomov said; Guatemala produced 30 per cent of the wealth of Central America. It was a poor country because of the severe gap between rich and poor and the concentration of the wealth of the country in the hands of the few. That was a difficult issue to address, perhaps even more difficult than combating racial discrimination. The question of literacy was especially crucial. There had been an improvement in that sphere, but the situation remained alarming. It was unacceptable that 48 per cent of indigenous persons were illiterate, and it did not look like that trend was going to change significantly in the near future. Social conditions in the more densely populated indigenous areas were dire: those communities lacked the most basic infrastructure. While noting that administrative structures had been put in place to address a lack of scholarization among indigenous peoples, as well as the land shortage they suffered from, there had been no real progress in either of those areas. Indeed, the Guatemalan Parliament approved in 2005 the need to comply with the agreement to regularize the land situation with regard to indigenous peoples, as specified in the peace accords. Still, that issue had not been successfully addressed. De facto discrimination prevailed and racism could not be overcome until the issue of land reform was addressed.
The report noted that while some measures had been taken to incorporate and promote the use of indigenous legal procedures, more information on that practice was needed. It was of extreme concern, however, the Rapporteur said, that the legislature had enacted a regulatory law of consultative procedure in the past year that would actually make it more difficult to access the consultation of indigenous peoples on matters concerning them, as required by the Constitution.
Overall, it was to the delegation's credit that the report of Guatemala was so objective. And while the Committee unstintingly noted Guatemala's shortcomings, it also documented signs of progress. It was also noteworthy that civil society organizations were able to participate in the drafting of the report, the Rapporteur concluded.
Experts asked about the issue of mining licenses that had been granted to indigenous lands; access to justice for indigenous peoples; the right of the indigenous peoples to land; the effective exclusion of indigenous peoples from the right to enjoy their political rights; the lack of indigenous persons in high positions in the Government; the lack of disaggregated data on indigenous peoples and other minorities concerning their enjoyment of their human rights; and the issue of compensation for harms suffered, including rehabilitation for victims of discrimination. Additionally, one Expert requested information on how especially grave cases of discrimination were being handled, and what punishments had been meted out, if any, to their perpetrators. What were the ramifications of Guatemala's ratification of ILO Convention 169 and what were the challenges faced to its implementation?
The Garifuna culture had not been described with the same detail in the report as other indigenous cultures, one Expert noted, and more information on that culture and what was being done to promote its language and history in the education sector was requested. Another Expert said that members of that segment of the population, that is, Guatemalans of African heritage, were a particular target of discrimination, and therefore more information about their situation was important.
With regard to events on the ground, it was asked what the State party was doing to address cases of forcible expulsion of indigenous peoples from the land, including incidents in May and August 2004 in which the police and the army forcibly dispossessed people of their land, resulting in the loss of life and substantial material damage to indigenous communities.
A series of questions on the land rights of indigenous peoples were asked, including the role of customary law in determining land rights, what compensation had been made for land taken away, and whether the indigenous community had its own concept of private ownership of land. Regarding the Land Fund, was it established solely to protect indigenous people's rights? How then was it possible that it had established zones of protection such as forest concessions and mineral rights without consent from the indigenous people, concessions that had effectively prevented the indigenous people from enjoying those lands?
Finally, given the series of natural disasters that had struck the country in the past few years, including the recent mudslides, and the enormous toll they had taken on lives as well as infrastructure, was anything being done to address the effect of such disasters on indigenous peoples, who bore the brunt of such calamities?
Response by Delegation to Oral Questions
The delegation said that the Presidential Commission on Racism and Discrimination against Indigenous Peoples in Guatemala was at the centre of the anti-discrimination campaign in Guatemala. The Commission was made up of five commissioners representing the three indigenous peoples, Mayas, Garifunas, and Xincas, and currently there were Mayan, Maya K'ichee, Garifuna and Xinca commissioners. Article 2 of the Governmental Agreement set out the Commission’s mandate, which included provisions of assistance to government and non-governmental organizations to develop effective mechanisms to combat racism against indigenous peoples, the formulation of public policy in the area and the responsibility for follow up, liaison between indigenous organizations and the Executive, the registration of discrimination claims and the direction of those claims to competent bodies, the duty to report on indigenous matters to the Government and international organizations and to launch awareness-raising campaigns, among others.
Evidence of Guatemala's reformed stance on indigenous issues could be seen in the work of the Guatemalan delegation in the drafting of declarations formulated by both the United Nations and the Organization of American States on discrimination. Ambassador Juan Leon Alvarado, of Maya K'ichee ethnicity, was the president of the working group on the Declaration in the Organization of American States.
The absence of targeted legislation on racial discrimination in Guatemala was owing to the fact that other groups had demanded their inclusion in any such legislation. Racial discrimination had thus been included as one of many categories of discrimination that were prohibited by article 202 of the Criminal Code. The tools at the Government's disposal, including the Presidential Commission on Racism and Discrimination against Indigenous Peoples in Guatemala, as well as other indigenous organizations and the existing legislation that prohibited racial discrimination, in particular laws in the labour and administrative spheres, were a sufficient basis to begin. Once those had been implemented the Government would be able to assess whether it was necessary to draft more targeted legislation, the delegation said.
In 2005, 74 complaints of discrimination were lodged with the Commission. In the month of February 2006 alone, 15 complaints were lodged. That increased reporting reflected that the programmes in place to disseminate information on the Commission were working. Not all the complaints lodged with the Commission were earmarked for consideration by the courts, however, the delegation said. Some cases were dismissed upon investigation, while others were referred to bodies of administrative justice for the application of administrative procedures or sanctions. The majority of complaints were still under investigation. In only two cases had judgements been handed down, one case brought under amparo proceedings, the other under criminal law, which was the case of Noble Prize Winner Rigoberta Menchú Tum.
Cross-cutting initiatives were needed to be taken on to address the endemic discrimination, particularly through educational programmes. The delegation, however, felt that the society itself had to take up the burden. It was only with the total commitment and understanding of the society that discrimination could be eliminated. Most important, perhaps, was the funding for the existing mechanisms.
Negotiations were under way in cases involving land rights, but to understand the situation it was important to know the historical background. There had been a great deal of internal displacement in the country and the land registry system had totally broken down. Often there were five or six entries for ownership for one plot of land. The Land Fund, a sort of exchange or market for land, was the only mechanism the Government had for addressing the situation. The Land Fund sought to provide land to those who had lost it. It was a form of restitution and a way of compensating for those who had had their land taken away from them. There was also a draft act on land registration that would address the lack of adequate records and at least get a handle on the actual situation on the ground. Much of the land in question, for example, was forest land, not agricultural land. The Land Information Registration and the Framework Peace Agreement were the basis for the current laws. There was no specific register for indigenous land rights, only a general one. Courts for land disputes were in the process of being set up.
Regarding indigenous law, Article 66 of the Constitution recognized the traditional social structures of indigenous societies and under that article indigenous justice had been recognized in some cases, although only on an ad hoc basis. This February, the Supreme Court ruled that all the previous applications of indigenous law would become part of the institutional policy on the subject.
The National Programme for the Compensation of Victims of the Internal Armed Conflict of Guatemala had been established, under a National Commission currently headed by an indigenous woman, which provided financial compensation, as well as psychological support to victims.
A programme was in place to train and hire 300 indigenous university professionals in high-level positions in State institutions. The first hires under that programme were scheduled for June, after the candidates had completed training in public administration.
To give greater support to indigenous women, the Presidential Commission on Human Rights was currently carrying out a programme called "inclusion of indigenous women in rural areas" to encourage indigenous women's political participation and the incorporation of women in the social and economic sphere, given the especially heavy economic consequences of discrimination that rural indigenous women suffered from.
The Commission to Investigate Illegal Bodies and Clandestine Security Apparatuses helped to address the existence of access to and administration of justice for indigenous peoples by effectively combating the illegal bodies a0nd organized crime that prevented the enjoyment by indigenous peoples of their legal rights under the justice system.
ILO Convention 169 had been recognized as part of Guatemalan law by the Constitutional Court of Guatemala. To address any failure in its application or interpretation in Guatemalan courts, a training course on that Convention had been established in cooperation with the Minister for Labour and Social Security.
Preliminary Remarks
ALEXEI AVTONOMOV, the Committee Expert who served as Country Rapporteur for Guatemala, said that the dialogue between the delegation and the Committee had been open, sincere and useful. The delegation had provided details on and clarified the modes of discrimination in the country.
It was encouraging to note improvements that had been made in mechanisms for access to justice, which was of central importance to addressing discrimination. Greater security regarding land tenure, however, remained a concern. In addition, not all the questions posed by the Committee had been replied to, and it was suggested that the delegation might wish to respond in writing to those questions. Finally, the desire on the part of the Government to make Guatemala a multicultural, multilingual and multiethnic society was clear, and that was the most important thing, Mr. Avtonomov stated.
* *** *
For use of the information media; not an official record
of Racial Discrimination
27 February 2006
The Committee on the Elimination of Racial Discrimination has considered the eighth to eleventh periodic reports of Guatemala on its implementation of the provisions of the International Convention on the Elimination of all Forms of Racial Discrimination.
Presenting the report, Ricardo Cajas Mejía, Coordinator General of the Presidential Commission to Combat Discrimination and Racism against Indigenous Peoples in Guatemala, said that over the last year and a half, the Commission had been reviewing the situation of discrimination in Guatemala with a view to bringing it in line with Guatemala's obligations under the peace accord. A three-year programme of work to address the urgent situation of discrimination in the country had been undertaken. A number of administrative bodies for the preservation of indigenous culture and languages had been established or were in the course of construction, including the Academy of Mayan Languages and Xinca and Garifuna community centres. The justice system was being overhauled to ensure indigenous access and a research centre had been established to draft a global public policy on indigenous affairs. The Office of the Ombudsman for Indigenous Peoples, within the Public Prosecutors Office, had been created to address discrimination in the justice system, and a law guaranteeing protection of the rights of indigenous women had been enacted, among others.
Of prime importance, Mr. Cajas Mejía said, was the recognition of the problem of discrimination by the whole society and Guatemalan society's commitment to address the issue. Guatemala was on the right track and it was ready to participate with the Committee and foster the process of change.
In preliminary remarks, Alexei Avtonomov, the Committee Expert who served as country Rapporteur for Guatemala, said he was encouraged to see that new mechanisms had been put in place to ensure greater access by indigenous peoples to justice. Greater security regarding land tenure, however, remained a concern. Overall, the Government of Guatemala appeared determined to forge a multicultural, multilingual and multiethnic society, which was the most important thing.
Committee Experts also asked about the issue of mining licenses that had been granted to indigenous lands; access to justice for indigenous peoples; the right of the indigenous peoples to land; the effective exclusion of indigenous peoples from the right to enjoy their political rights; the lack of indigenous persons in high positions in the Government; the lack of disaggregated data on indigenous peoples and other minorities concerning their enjoyment of their human rights; and the issue of compensation for harms suffered, including rehabilitation for victims of discrimination.
The Committee will present its written observations and recommendations on the eighth to eleventh periodic reports of Guatemala, which were presented in one document, at the end of its session, which concludes on 10 March.
When the Committee reconvenes at 3 p.m. this afternoon, it is scheduled to take up the ninth to thirteenth periodic reports of El Salvador (CERD/C/471/Add.1).
Report of Guatemala
The eighth to eleventh periodic reports of Guatemala, submitted in one document (CERD/C/469/Add.1), state that the current Government of Guatemala has expressed an interest and a clear willingness to make Guatemala a multi-ethnic, pluricultural and multilingual nation, as evidenced by the institutions and teams of specialists that have been established to implement initiatives to eradicate attitudes of discrimination that persist in all sectors of Guatemalan society. Nevertheless, the report says that without the requisite support for those initiatives on the part of the entire population, as well as international organizations, many of the Government's commitments remain unfulfilled. This means that any discussion of the situation of the Maya, Xinca and Garifuna peoples is extremely difficult because it is a long-standing problem where racial and ethnic discrimination are encountered on a daily basis.
Attitudes of disdain and rejection towards indigenous people are still evident in different sectors. In some media, there is prejudice against various aspects of their culture, such as their spirituality and the use of their language. In general, indigenous people are at a disadvantage with regard to access to the benefits of development and socio-political participation. Mechanisms that provide access to justice are essential for overcoming the high levels of discrimination and facilitating the exercise by indigenous peoples of their basic rights. The State institutions established to deal with indigenous matters do not have budgets that enable them to operate efficiently and to meet the needs of the population concerned. The report states that efforts must be made to end the dominance over indigenous peoples which has made use of such models as assimilation, standardization, integration, segregation, folklorism and alienation, the ultimate aim of which is to maintain economic, political, sociocultural and spiritual control over indigenous peoples. Action must be take to enable the State to overcome the current situation of violence, authoritarianisms, intolerance and social exclusion.
Presentation of Report
RICARDO CAJAS MEJÍA, Coordinator General of the Presidential Commission to Combat Discrimination and Racism against Indigenous Peoples in Guatemala, said the report contained an outline of racial discrimination in Guatemala and the initiatives undertaken by the State to sanction and prevent acts of discrimination in the country. Over the last year and a half, the Commission had been reviewing the situation related to discrimination in Guatemala to bring it in line with Guatemala's obligations under the peace accord signed between the Government and representatives of the Guatemalan Nation Revolutionary Unity Party, after 36 years of war. The Commission had undertaken a three-year programme of work to address the urgent situation with regard to discriminatory practice in the country, which had both structural and historical origins.
There was no doubt that conditions had changed in the country over the course of the long war and the establishment of a new administration. While imperfect in some respects, the 2002 census was a very valuable tool with regard to the information it provided on the languages spoken, illiteracy and educational assistance.
The delegation before the Committee today was led by indigenous representatives, Mr. Cajas Mejía remarked, and that bore testimony to a new policy of inclusion of indigenous peoples in public and political affairs. It could not be overstated what a major advance that fact alone represented for Guatemala. Other examples of that inclusion were the establishment of the Academy of Mayan Languages, a community centre for the Xinca and Garifuna communities, which was currently being built, and the planned construction of a cultural centre for the Xinca. The justice system was being overhauled to address the issue of indigenous peoples' access to it. A research centre had been established where academics and indigenous leaders were working together to draft a global public policy on indigenous affairs. A group of indigenous experts had also been set up. Indigenous issues were being mainstreamed in Government ministries, including the Ministry of Culture and Sport and the Ministry of Education. The Office of the Ombudsman for Indigenous Peoples, within the Public Prosecutors Office, had been created to address discrimination in the justice system, and a law guaranteeing protection of the rights of indigenous women had been enacted, among others.
The Guatemalan Vice-President's apology last year for the massacre at Plan de Sanchez was another token that the Government admitted the extent of the problem and was taking responsibility for addressing it, Mr. Cajas Mejía said. There was value in the Government's admission that Guatemalan society was not just racist, but was very racist. That was an important step in the awareness-raising that was needed to effect change in the future. Indigenous policy in the country was not being built in a top-down manner from the President's office, but was the result of a collaborative effort between indigenous peoples and the Governmental authorities, which was a requirement of the new Constitution.
The Guatemalan system was one that marginalized, excluded and denied access to rights. That could not be denied or ignored. In the light of that observation, the report should perhaps best be viewed as a forward-looking expression of what Guatemala would like to do in the future. The pain and the burden of the past could not possibly be forgotten and should never be neglected, but it could be transformed into a strength for the future. Guatemala was on the right track and it was ready to participate with the Committee and foster the process of change.
Continuing with the introduction of the report, other members of the delegation said that the Government recognized the shortcomings of Guatemalan society, but was ready to address them. Most of the activities undertaken so far were in the administrative sphere, and they had been fruitful in the sense that many new structures had been created. Those bodies remained weak, however, and it remained to consolidate them and make them more effective. Some successes could be claimed, however. For example procedural reform in the justice system meant that the prosecutor's office was now able to present specific data on cases of racial discrimination. Three years ago only two such cases had been raised. In the last year, 65 such complaints had been lodged, though admittedly, only two such cases had been taken up by the courts.
Guatemala would continue to fight the good fight. In undertaking that task the support and assistance of the Committee was greatly appreciated.
CARLOS RAMÍRO MARTÍNEZ, Permanent Representative of Guatemala to the United Nations Office at Geneva, said that he would like to reiterate the commitment of Guatemala to work on the reports and follow up on the recommendations of the Committee. The Government had demonstrated its good will in this area, he said.
Oral Questions Raised by the Rapporteur and Experts
ALEXEI AVTONOMOV, the Committee Expert serving as Country Rapporteur for Guatemala, said that for several years, the Committee had been working with the State party. During that time, Guatemala had acceded to a number of international human rights instruments, including the Convention on the Protection of Migrant Workers and Their Families, the Inter-American Convention for the Elimination of All Forms of Discrimination against Handicapped Persons, and the Additional Protocol of the American Convention on Human Rights, concerning economic, social and cultural rights (the San Salvador Protocol). It was also to be commended, Mr. Avtonomov said, that Guatemala had not issued any reservations or declarations on specific provisions of the International Convention on the Elimination of all Forms of Racial Discrimination.
Whereas 57 per cent of Guatemala's population lived in poverty and 21 per cent in extreme poverty, Guatemala was not a poor country, Mr. Avtonomov said; Guatemala produced 30 per cent of the wealth of Central America. It was a poor country because of the severe gap between rich and poor and the concentration of the wealth of the country in the hands of the few. That was a difficult issue to address, perhaps even more difficult than combating racial discrimination. The question of literacy was especially crucial. There had been an improvement in that sphere, but the situation remained alarming. It was unacceptable that 48 per cent of indigenous persons were illiterate, and it did not look like that trend was going to change significantly in the near future. Social conditions in the more densely populated indigenous areas were dire: those communities lacked the most basic infrastructure. While noting that administrative structures had been put in place to address a lack of scholarization among indigenous peoples, as well as the land shortage they suffered from, there had been no real progress in either of those areas. Indeed, the Guatemalan Parliament approved in 2005 the need to comply with the agreement to regularize the land situation with regard to indigenous peoples, as specified in the peace accords. Still, that issue had not been successfully addressed. De facto discrimination prevailed and racism could not be overcome until the issue of land reform was addressed.
The report noted that while some measures had been taken to incorporate and promote the use of indigenous legal procedures, more information on that practice was needed. It was of extreme concern, however, the Rapporteur said, that the legislature had enacted a regulatory law of consultative procedure in the past year that would actually make it more difficult to access the consultation of indigenous peoples on matters concerning them, as required by the Constitution.
Overall, it was to the delegation's credit that the report of Guatemala was so objective. And while the Committee unstintingly noted Guatemala's shortcomings, it also documented signs of progress. It was also noteworthy that civil society organizations were able to participate in the drafting of the report, the Rapporteur concluded.
Experts asked about the issue of mining licenses that had been granted to indigenous lands; access to justice for indigenous peoples; the right of the indigenous peoples to land; the effective exclusion of indigenous peoples from the right to enjoy their political rights; the lack of indigenous persons in high positions in the Government; the lack of disaggregated data on indigenous peoples and other minorities concerning their enjoyment of their human rights; and the issue of compensation for harms suffered, including rehabilitation for victims of discrimination. Additionally, one Expert requested information on how especially grave cases of discrimination were being handled, and what punishments had been meted out, if any, to their perpetrators. What were the ramifications of Guatemala's ratification of ILO Convention 169 and what were the challenges faced to its implementation?
The Garifuna culture had not been described with the same detail in the report as other indigenous cultures, one Expert noted, and more information on that culture and what was being done to promote its language and history in the education sector was requested. Another Expert said that members of that segment of the population, that is, Guatemalans of African heritage, were a particular target of discrimination, and therefore more information about their situation was important.
With regard to events on the ground, it was asked what the State party was doing to address cases of forcible expulsion of indigenous peoples from the land, including incidents in May and August 2004 in which the police and the army forcibly dispossessed people of their land, resulting in the loss of life and substantial material damage to indigenous communities.
A series of questions on the land rights of indigenous peoples were asked, including the role of customary law in determining land rights, what compensation had been made for land taken away, and whether the indigenous community had its own concept of private ownership of land. Regarding the Land Fund, was it established solely to protect indigenous people's rights? How then was it possible that it had established zones of protection such as forest concessions and mineral rights without consent from the indigenous people, concessions that had effectively prevented the indigenous people from enjoying those lands?
Finally, given the series of natural disasters that had struck the country in the past few years, including the recent mudslides, and the enormous toll they had taken on lives as well as infrastructure, was anything being done to address the effect of such disasters on indigenous peoples, who bore the brunt of such calamities?
Response by Delegation to Oral Questions
The delegation said that the Presidential Commission on Racism and Discrimination against Indigenous Peoples in Guatemala was at the centre of the anti-discrimination campaign in Guatemala. The Commission was made up of five commissioners representing the three indigenous peoples, Mayas, Garifunas, and Xincas, and currently there were Mayan, Maya K'ichee, Garifuna and Xinca commissioners. Article 2 of the Governmental Agreement set out the Commission’s mandate, which included provisions of assistance to government and non-governmental organizations to develop effective mechanisms to combat racism against indigenous peoples, the formulation of public policy in the area and the responsibility for follow up, liaison between indigenous organizations and the Executive, the registration of discrimination claims and the direction of those claims to competent bodies, the duty to report on indigenous matters to the Government and international organizations and to launch awareness-raising campaigns, among others.
Evidence of Guatemala's reformed stance on indigenous issues could be seen in the work of the Guatemalan delegation in the drafting of declarations formulated by both the United Nations and the Organization of American States on discrimination. Ambassador Juan Leon Alvarado, of Maya K'ichee ethnicity, was the president of the working group on the Declaration in the Organization of American States.
The absence of targeted legislation on racial discrimination in Guatemala was owing to the fact that other groups had demanded their inclusion in any such legislation. Racial discrimination had thus been included as one of many categories of discrimination that were prohibited by article 202 of the Criminal Code. The tools at the Government's disposal, including the Presidential Commission on Racism and Discrimination against Indigenous Peoples in Guatemala, as well as other indigenous organizations and the existing legislation that prohibited racial discrimination, in particular laws in the labour and administrative spheres, were a sufficient basis to begin. Once those had been implemented the Government would be able to assess whether it was necessary to draft more targeted legislation, the delegation said.
In 2005, 74 complaints of discrimination were lodged with the Commission. In the month of February 2006 alone, 15 complaints were lodged. That increased reporting reflected that the programmes in place to disseminate information on the Commission were working. Not all the complaints lodged with the Commission were earmarked for consideration by the courts, however, the delegation said. Some cases were dismissed upon investigation, while others were referred to bodies of administrative justice for the application of administrative procedures or sanctions. The majority of complaints were still under investigation. In only two cases had judgements been handed down, one case brought under amparo proceedings, the other under criminal law, which was the case of Noble Prize Winner Rigoberta Menchú Tum.
Cross-cutting initiatives were needed to be taken on to address the endemic discrimination, particularly through educational programmes. The delegation, however, felt that the society itself had to take up the burden. It was only with the total commitment and understanding of the society that discrimination could be eliminated. Most important, perhaps, was the funding for the existing mechanisms.
Negotiations were under way in cases involving land rights, but to understand the situation it was important to know the historical background. There had been a great deal of internal displacement in the country and the land registry system had totally broken down. Often there were five or six entries for ownership for one plot of land. The Land Fund, a sort of exchange or market for land, was the only mechanism the Government had for addressing the situation. The Land Fund sought to provide land to those who had lost it. It was a form of restitution and a way of compensating for those who had had their land taken away from them. There was also a draft act on land registration that would address the lack of adequate records and at least get a handle on the actual situation on the ground. Much of the land in question, for example, was forest land, not agricultural land. The Land Information Registration and the Framework Peace Agreement were the basis for the current laws. There was no specific register for indigenous land rights, only a general one. Courts for land disputes were in the process of being set up.
Regarding indigenous law, Article 66 of the Constitution recognized the traditional social structures of indigenous societies and under that article indigenous justice had been recognized in some cases, although only on an ad hoc basis. This February, the Supreme Court ruled that all the previous applications of indigenous law would become part of the institutional policy on the subject.
The National Programme for the Compensation of Victims of the Internal Armed Conflict of Guatemala had been established, under a National Commission currently headed by an indigenous woman, which provided financial compensation, as well as psychological support to victims.
A programme was in place to train and hire 300 indigenous university professionals in high-level positions in State institutions. The first hires under that programme were scheduled for June, after the candidates had completed training in public administration.
To give greater support to indigenous women, the Presidential Commission on Human Rights was currently carrying out a programme called "inclusion of indigenous women in rural areas" to encourage indigenous women's political participation and the incorporation of women in the social and economic sphere, given the especially heavy economic consequences of discrimination that rural indigenous women suffered from.
The Commission to Investigate Illegal Bodies and Clandestine Security Apparatuses helped to address the existence of access to and administration of justice for indigenous peoples by effectively combating the illegal bodies a0nd organized crime that prevented the enjoyment by indigenous peoples of their legal rights under the justice system.
ILO Convention 169 had been recognized as part of Guatemalan law by the Constitutional Court of Guatemala. To address any failure in its application or interpretation in Guatemalan courts, a training course on that Convention had been established in cooperation with the Minister for Labour and Social Security.
Preliminary Remarks
ALEXEI AVTONOMOV, the Committee Expert who served as Country Rapporteur for Guatemala, said that the dialogue between the delegation and the Committee had been open, sincere and useful. The delegation had provided details on and clarified the modes of discrimination in the country.
It was encouraging to note improvements that had been made in mechanisms for access to justice, which was of central importance to addressing discrimination. Greater security regarding land tenure, however, remained a concern. In addition, not all the questions posed by the Committee had been replied to, and it was suggested that the delegation might wish to respond in writing to those questions. Finally, the desire on the part of the Government to make Guatemala a multicultural, multilingual and multiethnic society was clear, and that was the most important thing, Mr. Avtonomov stated.
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