Committee on the Elimination of Racial Discrimination considers report of Peru

15 August 2014

The Committee on the Elimination of Racial Discrimination today completed its consideration of the combined eighteenth to twenty-first periodic report of Peru on its implementation of the provisions of the Convention on the Elimination of All Forms of Racial Discrimination.

Presenting the report, Jose Avila Herrera, Vice Minister of Human Rights and Access to Justice of Peru, said that Peru was committed to stamping out the evil of racial discrimination. Racism and intolerance destroyed lives and tore apart communities, regardless of the form they took. A huge variety of races and ethnicities lived mixed together in Peru, which meant it was very difficult for any individual Peruvian to pinpoint his or her racial background. In 2001, during the World Conference on Racism, Peru had adopted the Durban Declaration and Programme of Action, and in 2010, the Ministry for Culture, and the Vice Ministry for Inter-Culturality had been established. Their mandate included drafting, implementing and monitoring polices which promoted practices to avoid discrimination and discriminatory language.

During the discussion, Experts noted that Peru had taken huge steps to overcome the scourges of poverty and illiteracy, but pointed out that the Constitution’s definition of racial discrimination was not fully in line with the Convention. The Experts raised the issues of violent attacks on indigenous peoples, who were sometimes viewed as savages, and asked about the existence of statistical data on the country’s indigenous populations. The delegation was also asked about segregation, land rights, bio-piracy, conditions of migrants, protection of human rights defenders, protection and promotion of indigenous languages, affirmative action, treatment of people of African descent, TV shows such as Paesana Jacinta, and fighting negative stereotyping in the mass media.

Alexei Avtonomov, the Committee Expert who served as Country Rapporteur, said that the dialogue had been very constructive, and the State party had made significant progress in combating racial discrimination, which was structural in nature and needed time to be eliminated. It was clear that it was very difficult to eliminate it completely, and there was no country completely free of it. The issue of TV shows was symbolic and emblematic, as racism was sometimes just embodied and came naturally. A code of ethics was clearly necessary. Adopting a programme on persons of African descent was also important for everyone.

Mr. Avila Herrera, in closing comments, said that the delegation had taken good note of the comments made by the Committee. The only path to having a fair and just society was through fully incorporating values of freedom and equality. The dialogue provided a chance to address areas of weakness where progress could and should be made.

The delegation of Peru included representatives of the Ministry of Justice and Human Rights, the General Prosecutor’s Office, and the Permanent Mission of Peru to the United Nations Office at Geneva.

The next public meeting of the Committee will take place at the Palais Wilson at 10 a.m. on Monday, 18 August, when the Committee will hear from representatives of non-governmental organizations from Cameroon and Japan, whose reports will be reviewed next week.

Report

The Committee is reviewing the combined eighteenth to twenty-first periodic report (CERD/C/PER/18-21) of Peru.

Presentation of the Report

JOSE AVILA HERRERA, Vice Minister of Human Rights and Access to Justice of Peru, said that Peru was committed to stamping out the evil of racial discrimination. Racism and intolerance destroyed lives and tore apart communities, regardless of the form they took. Hate speech on the basis of ethnicity could open doors to the serious crime of genocide. Fighting racial discrimination was a key battle for the international community and a priority of the Peruvian Government; in fact, it was probably one of the most noble and humane mandates of the United Nations system, as led by this Committee, said Mr. Avila Herrera. A huge variety of races and ethnicities lived mixed together in Peru, which meant it was very difficult for any individual Peruvian to pinpoint his or her racial background. The phenomenon of intermixing however had not led to people considering themselves equal on the street, even if that equality was enshrined in law. Peru was a single nation which celebrated its identity but had to overcome the challenge of delivering inclusion while allowing everybody to maintain their identity.

Previously, this and other treaty bodies had helped Peru to develop an action plan for all levels of society, which led to the development of better policies and legislation. Today Peru wished to outline what it had achieved over the last five years and share its challenges. In 2001, during the World Conference on Racism, Peru adopted the Durban Declaration and Programme of Action, recalled Mr. Avila Herrera. The principle of equality required adoption of procedures at all levels, as well as clear data, and Mr. Avila Herrera was glad to confirm a census would take place in 2017. He said that all legal norms and standards in the country were compatible with the Convention. The Government had a responsibility to ensure that freedom and equality were delivered for all as seen in the constitution, and legislation included the law of Equality Opportunities, the law on the Right of Prior Consultation for Indigenous Peoples, and the National Plan for Gender Equality 2012 to 2017.

There were 52 groups of indigenous peoples in Peru, who continued to use their indigenous languages and knowledge. They made an incalculable contribution to Peruvian society. However, some of their fundamental rights and freedoms were not available to them, and the Government was spearheading a drive to rectify that. Measures taken included establishing public bodies in remote areas, improving social expenditure to reach those who should benefit from it, and increasing public services in remote areas. The Law on Indigenous Languages provided recognition and training to indigenous language interpreters. At the same time attention had to be paid to the cultural uniqueness of indigenous persons to ensure they could preserve their identity. Mr. Avila Herrera gave an example of better tailored maternal healthcare that had been given by understanding traditional birth-giving methods such as standing delivery, which had contributed to a reduction in maternal mortality.

In 2010 the Ministry for Culture and the Vice Ministry for Inter-Culturality were established. Their mandate included drafting, implementing and monitoring polices which promoted practices to avoid discrimination and discriminatory language. Peru had paid compensation to some 54,800 people, or 70 per cent of the victims inscribed in the Central Register of Victims of the political violence in the 1980 to 2000 conflict. A further 30,000 people would be compensated, including 2,833 registered victims of sexual violence. Regarding women’s rights, and in particular indigenous women, Mr. Avila Herrera quoted UN Women data which showed that Peru was one of the 125 countries that had made domestic violence illegal, and was one of 115 countries which guaranteed equality in law, ownership and property and decision making.

Mr. Avila Herrera welcomed the live webcast service of this meeting, and said he was delighted that many Peruvian officials who were unable to attend the review in Geneva in person were able to watch it live from Peru, as well as members of civil society.

Questions by the Country Rapporteur

ALEXEI AVTONOMOV, the Committee Expert serving as Country Rapporteur, said Peru was a great and ancient civilization, one of the most ancient civilizations of the world. The ancient cultures of indigenous civilizations were among the oldest and long-standing in the world. Peru began the fight against colonialism, with Tupac Amaru, the last indigenous monarch of the Inca state in Peru, long before the United States began its battle. The history of Peru, as with many countries, was also littered with many controversies. Despite that, Peru had taken huge steps to overcome the problems of poverty and illiteracy, just two examples. There had been a stable trend of poverty reduction and extreme poverty had also been reduced, albeit at a slower rate.

The Committee had also noted progress made in the inter-reporting period; much had changed in the last five years since the 2009 review. Wide-ranging institutional reform included the Office of the Ombudsman, the Executive Branch and not least the re-naming of the Ministry of Justice and Human Rights. There was better legal recognition of justice, and the Ministry of Culture, and the Ministry of Development and Social Inclusion had been established. The new law on the Right To Prior Consultation For Indigenous and Original Peoples, in line with International Labour Organization Convention 169, was also commended as a very important development.

Challenges remained however, and the Rapporteur said the constitution’s definition of racial discrimination was not fully in line with the Convention. He was also concerned about the lack of prohibition of incitement to racial hatred and of the criminalization of racist organizations by law.

Reports of violent attacks on indigenous peoples were also a concern. The Rapporteur asked what was being done about it. There were perspectives that indigenous peoples were savages, people living on the margins of society, and viewed in a derogatory way. He spoke about awareness-raising campaigns, particularly on television, and said they could be very effective at changing stereotypical thinking. As well as changing mind-sets among the population as a whole, the Government also had to change the mind-sets of indigenous peoples to embrace their identity in a positive way.

Questions by the Experts

The high-level delegation was welcomed by the Chairperson, as was its gender composition, there being so many women members. The Head of the Delegation had spoken about the huge ethnic and racial diversity of Peru, and the Expert commended the State party for its work to promote that, but said he would like to see more diversity in future delegations to Geneva.

An Expert questioned the assertion by the State party that it had no data on Peruvian indigenous peoples, and said it was very important to find out who they were, where they were located and so on. He commended reparations given to indigenous peoples and the climate of reconciliation established, but asked for more information on the process of the recognition of indigenous peoples.

Segregation was raised by an Expert, who said it could arise from discrimination but could also arise from community actions, and the State was not always responsible for it. However, the State was obliged to take action in cases of segregation.

The delegation was asked about land rights for indigenous peoples. On the new law on prior consultation, he said according to civil society reports, a problem in delivering that law was that some indigenous peoples groups did not self-identify as indigenous peoples but rather as Campesinos and the law did not cover them. Furthermore, some indigenous peoples believed that prior consultations were not genuine, because in the majority of cases, even though prior consultations took place, the original plan or project would go ahead nevertheless. Could the delegation give examples of projects that were halted or changed as a result of consultation with indigenous peoples?

There were 17 Amazonian languages, according to the report, and the three that were most spoken were Quechua, Aymara and Ashaninka. The report referred to bilingual teaching which was commendable, but the State party had to ensure that indigenous languages were not relegated as part of that bilingual process.

In November 2009 a historic pardon was granted by the Government to those who had suffered from slavery and its aftermath, recalled an Expert, which was one demonstration of the political will in Peru to effect change. He also welcomed the Quota Law, laws on equal opportunities and new institutions.

On negative stereotyping in the mass media, an Expert spoke of a symbolic recent ruling by the Ministry for Transport and Communications and their decision to end the broadcasting of a television programme called La paisana Jacinta which encouraged discrimination and negative stereotypes of indigenous peoples and people of African descent. That action was welcomed by the Committee, as such mass media television programmes could do huge damage both to wider society and the minority groups it stereotyped.

However, another Expert said he understood the programme was still on air, and said although he was not at all encouraging Government censorship of the media, asked what measures were being taken. The programme was seriously offensive, especially to indigenous women, and portrayed the superiority of European culture over indigenous culture under the garb of humour, he said. A programme such as that would have no chance of being on the air in many countries due to public pressure, but that was because the public at large would be sensitized to what made the programme so offensive. However, the programme enjoyed large ratings in Peru and was not widely considered offensive. and that was part of the problem, that it was so popular. What plans did the Government have to promote awareness-raising and education across the board so programmes such as that were no longer popular?

People of African descent were probably further behind than other minority groups, and the Expert asked what was being done to promote the rights of Afro-Peruvians. It was understood that surveys were being carried out to find out the views of Afro-Peruvians, and there would be a census in 2017 – could the delegation comment on measures being taken in that regard? The Decade of People of African Descent started this year; an Expert asked what Peru was planning to do to contribute to that initiative, to make sure it was effective, both at the national and the General Assembly levels.

The affirmative action being taken by the State was commendable, which aimed to help certain groups overcome the actual inferiority they were experiencing through specific measures taken by the State, said an Expert. She asked how affirmative action was used in the field of education?

Bio-piracy, the unauthorized use of genetic resources of Peru and the traditional knowledge of indigenous peoples, especially linked to biological resources, was something mentioned in the report. An Expert asked for an explanation of what it meant.

What about migrants who did not meet the internationally accepted definition of a ‘refugee’ but who nevertheless were vulnerable and risked being exploited or deported back to their home country. What was the State party doing to prevent discrimination against non-Peruvian nationals?

What efforts was Peru making to protect human rights defenders, to enable to them to carry out their work effectively? An Expert also asked about Shining Path, sometimes known as the Communist Party of Peru, and whether it truly was an indigenous movement.

The Chairperson of the Committee asked for specific examples of affirmative action or positive special measures. He said it was reported that the African Peruvian population represented two to three per cent of the Peruvian population, and although that was not an accurate figure, he would welcome more detailed information on the Afro-descendent population in Peru. The delegation was also asked about the coordination between the two systems of law, national law and customary law of indigenous peoples.

Response by the Delegation

Responding to the questions on the prior consultation law, the delegation explained that indigenous peoples had a right of prior consultation. The mechanism for prior consultation was firmly set in place and consultation was thus compulsory; it took place in a timely and non-coercive manner, and consisted of seven stages.

The list of indigenous peoples consisted of 52 groups. The database used as its main sources census figures collated by the statistical institute and regional authorities through their competent bodies. The database currently included the official names and self-denomination, geographical references, relevant cultural information, and the list of local and national representatives.

On the report of the Truth and Reconciliation Commission, it was said that during the 1980-2000 political violence phase many victims had been indigenous peoples. The truth commission was adamant that the Shining Path was the one responsible for violence. Subsequent, democratic governments had started to put in place a number of activities to bring those responsible for violations to justice. The search for truth was certainly part of the process leading to justice, but forgiveness had also been asked of all families of victims. The Government was fulfilling its financial obligations and paying reparations up to USD 3,500 per person; some two-thirds of financial obligations had been met thus far. The Government was also moving to build museums and memorials and paid attention to symbolic and collective reparations.

Regarding questions on the Bagua process, the delegation said that there was a wide range of inter-institutional dialogue following the 2009 Bagua violence. The rights of minorities were simply not implied in the rights of the majority. The judiciary was currently identifying two experts who would travel to the affected region and hear from those who had suffered from the violence. Both members of the national police force and of indigenous communities had been brought to justice. Members of the indigenous communities were now allowed to serve their detention in the village rather than prison.

Racial discrimination was mentioned in article 2 of the Constitutional Charter. Each person had the right to their ethnic and cultural identity. Material or objective content underlined the binding principles of the Constitution, stressing that equality was a fundamental right. The Government was certain that the courts were constantly improving the substantive quality of their rulings, in line with the relevant international instruments. Additionally, the Constitutional Court interpreted that international legal instruments had an institutional status.

On the issue of a TV show Paesana Jacintabroadcast through the mass media, which was very negative towards indigenous women, it was noted that freedoms of speech and expression had to be observed, but also had their limits. The Government, through the Ministry of Culture, would work on the issue and promote development of the code of ethics for the media, so that they respected the rights and dignity of the indigenous peoples and persons of African descent. The main measure to fight such phenomena was through education, and there was hope that such programmes would not be seen on national television again.

The delegation said that the Government promoted the process towards general anti-discrimination in Peru. There was a dedicated commission providing support to the executive on fighting discrimination, and helping establish a dialogue between the State and indigenous communities. The National Office for Dialogue had led to a decrease of social conflicts, most of which were related to the extraction of natural resources. The approach was fully based on the rule of law.

Peru sought to provide an effective response to cases of discrimination, with the priority given to the stamping out of racial hatred. Discrimination was an offense which could lead to prison terms, and anyone inciting racial discrimination in public could be sentenced to prison sentences, while officials could be dismissed from their posts for discriminatory behaviour. The burden of proof was on the prosecutor’s office. Justice in Peru had to be applied bearing in mind that it was a multi-cultural country; indigenous justice hence had to be appropriately taken into account. Certain obstacles, including geographical difficulties, existed and ways needed to be found to overcome them.

Investigations were underway into the alleged case of forced sterilization, which was highly symbolic. It had to be ensured that better assessments were made before the courts, and that prosecutors had the right tools at their disposal.

Answering to questions on discrimination in Amazon and Andean regions, the system was being improved through cooperation with the Ministry of Education, Ministry of Women and other involved groups. There were 45 agents-facilitators who went to remote areas to promote the activities of the State to protect women victims of domestic violence.

Schools had psychologists available to provide services both to children victims and perpetrators of bullying and discrimination. There were 4,000 schools with bilingual teaching, and it had to be ensured that the curricula were adjusted to the needs of students.

Peru had an innovative project in place, which included representatives of various State organs traveling on a boat across the Amazon region in order to access regions which were hard to reach, and help with the civil registration process. Parts of the indigenous peoples, approximately eight per cent of them, were nonetheless still hard to reach.

With regard to the rights of non-nationals, a delegate explained that foreigners could vote and be elected at the local level, which was a sign of Peru’s openness. There were limitations when it came to the ownership of property, some related to the issue of national security, others limiting the percentage of ownership that foreigners could have in broadcast companies.

There was a convention in place helping the State determine who was a refugee. Those who applied for asylum or refugee status and were refused could appeal. Today, Peru was facing a growing number of such applications, mostly by migrants who believed that their rights would be better protected as refugees. After a review, very few of them, if any, could be classified as refugees.

Afro-Peruvians were at the forefront of the country’s social agenda, and were present at various levels of State organs. Efforts had been put in place to ensure that Afro-Peruvians enjoyed all rights.

Follow-up Questions by Experts

An Expert asked about a specific Negro Mama case and steps taken by the media to self-regulate in similar cases. Were there mechanisms in place now to act in such future cases?

Was the State considering special status for indigenous jurisdiction?

The Expert said that the principle of the reversal of the burden of proof in cases of racial discrimination had now been applied, which was a positive development.

Another Expert raised the issue of protecting indigenous people living in voluntary isolation. Could more information be provided about the protection of such communities?

A question was asked on the efforts to coordinate traditional and indigenous justice.

Returning to the issue of Paesana Jacinta, an Expert asked whether there were legal deterrents for such programmes being shown again. If not, how could people be dissuaded from watching such shows?

Answer by the Delegation

There was a draft law to coordinate the administration of ordinary justice and customary/traditional law practices. It was a very progressive law which included principles of inter-culturalism and mutual respect. The draft law was currently before relevant committees of the Parliament, and would eventually be examined by the plenary.

There had been a reduction in the number of social conflicts, thanks to the increase in the use of dialogue as a consequence of the Bagua process.

Those who lived in isolation could continue to do so, but efforts were made to ensure that they were provided minimal health care and did not succumb to diseases.

The delegation stated that the programme Paesana Jacinta was an expression of a certain culture, even if phony. The Committee’s recommendation would be taken into consideration when deciding on the contents of the Channel 7 shows.

Follow-up Questions by Experts

An Expert asked whether bilingual education was applicable to all Peruvian children in all schools, or was it only indigenous children to whom such education was applied.

Corruption had not been overcome in regions of the country. Did the compensation truly reach the beneficiaries, and how could they ensure that it did not end in the wrong hands?

Another Expert noted that Peru had made significant progress over the previous decade and a half. He wondered whether broad acceptance of programmes such as Paesana Jacinta also meant internalization of some cultural norms and prejudices by the largest population group.

Instruments for the implementation of broadcast regulations were also important, an Expert stressed.

How and where exactly was racial discrimination addressed by the State anti-racism platform?

An Expert inquired how bias could be avoided in domestic violence cases, especially when it came to minority women.

Answers by the Delegation

On bilingual programmes, it was stated that the Government was currently working on bilingual education as a part of the general curricula. That came along with a special guide for teachers, particularly aimed for those working in distant rural areas of the country. The intent was to provide special, culturally sensitive education.

Older students in schools were provided training to be “school prosecutor assistants”, and helped with resolving conflicts in the school environment.

Answering the question on dealing with domestic violence against minority women, it was explained that programmes were being rolled out in the Andean region, so that more effective provision of justice was ensured.

A delegate said that the platform to fight racial discrimination, including alerts against racism, had been developed in 17 regions of the country. Three football teams, for example, had been sanctioned for discriminatory practices. Public officials were being actively trained. Ordinary citizens could now report cases of discrimination they were victims of, or simply witnessed.

On programmes such as Paesana Jacinta and Negro Mama, there had been a specific complaint raised regarding the latter one. While many citizens objected to the filming of the former one, no ethical complaint had been raised by the civil society. The comments made by the Committee could help change the programming schemes in Peru.

Follow-up Questions by Experts

An Expert said that some indigenous communities might not have been recognized on the list of 52 groups, and asked what their way of recourse towards the judiciary was.

The Expert agreed that the greatest concern regarding some TV shows was that they mirrored people’s own attitudes. Was the general population targeted by the awareness-raising activities by the Government?

In civil cases of racial discrimination, was it the defendant or the plaintiff who had to provide the proof, another Expert inquired.

How did the State party deal with multinational organizations purchasing property in Peru?

Response by the Delegation

The delegation stated that there was judicial review provided for all cases when an indigenous community had not been included in the register and a complaint was raised.

It was entirely clear that the human rights education ought to provide education to all young people, but also the bureaucracy, police and armed forces. Great progress had been made, but the curricula had to be further improved. The population at large also needed to be targeted.

On foreign ownership, a delegate said that any legal entity which was not Peruvian was a foreign enterprise. Multinational organizations were thus considered as foreign companies and were subject to the earlier mentioned limitations.

The Convention had been ratified by Peru, and there was confidence that judges and prosecutors bore that in mind.

Follow-up Questions by Experts

An Expert commented that one could not compare comedy programmes, which were almost inevitably politically incorrect, with serious political programmes.

Paesana Jacinta had been suspended three years earlier, but was now back on air and shown on prime time television.

Another Expert asked about the delegation’s understanding of the content of the intercultural, bilingual education in rural areas. A question was also asked about forced labour.

Response by the Delegation

A delegate said that the Government had put in place a national commission to combat forced labour.

The Government would undertake to provide a detailed definition and explanation of the intercultural education.

Concluding Remarks

JOSE AVILA HERRERA, Vice Minister of Human Rights and Access to Justice, said that the delegation had taken good note of the comments made by the Committee. The only path to having a fair and just society was through fully incorporating values of freedom and equality. The dialogue provided a chance to address areas of weakness where progress could and should be made.

ALEXEI AVTONOMOV, the Committee Expert serving as Country Rapporteur, said that the dialogue had been very constructive, and the State party had made significant progress in combating racial discrimination, which was structural in nature and needed time to be eliminated. It was clear that it was very difficult to eliminate it completely, and there was no country completely free of it. The issue of TV shows was symbolic and emblematic, as racism was sometimes just embodied and came naturally. A code of ethics was clearly necessary. Adopting a programme on persons of African descent was also important.
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