Committee on the Elimination of Racial Discrimination reviews the situation in Guatemala

GENEVA (26 April 2019) - The Committee on the Elimination of Racial Discrimination today concluded its consideration of the combined sixteenth and seventeenth periodic report of Guatemala on measures taken to implement the provisions of the International Convention on the Elimination of All Forms of Racial Discrimination.

Introducing the report, Miriam Josefina Domínguez Sebastián, Commissioner and Co-ordinator of the Presidential Commission on Racism and Discrimination against Indigenous Peoples of Guatemala, said that the Commission was created in 2002, as a result of the Peace Accords, notably the Accord on Indigenous Peoples’ Identity and Rights.  Regarding the demography of Guatemala, the Government had undertaken a census, and all processes put in place to that end placed a high priority on gender.  The Government was editing and digitizing the data and hoped to make public the first results in September 2019.  The human right to self-identification was promoted throughout the census, as attested by the inclusion of the option “Person of African descent/Creole/Afro-mixed-race” for the first time in census forms.  In a recent legal case brought before the Constitutional Court, a ruling upheld the right of indigenous peoples to participate in the elaboration, implementation and evaluation of development plans - whether they were economic, social or cultural - that could affect them directly.  The court’s decision also reaffirmed the need to respect the integrity of indigenous peoples’ values, practices and institutions.  

At the beginning of the dialogue, Committee Experts said that problems remained and that Guatemala had experienced setbacks, unfortunately, despite the progress achieved.  The report’s methodology had improved: there was an order to it, and it addressed the Committee’s concerns.  Pointing that the Government had stated that all judicial decisions handed down in Guatemala adhered to the Convention, Experts asked for further details and examples.  The Committee sought to understand the extent to which the Convention and the Constitution were in harmony.  While it was obvious that Guatemala had achieved significant progress on the legislative front, information provided by civil society organizations indicated a lack of strong institutions to address their concerns and implement the relevant laws.  How did the Government intend to strengthen its institutions to better serve the vulnerable segments of its population and address their concerns?  Were law enforcement officials trained to ensure that indigenous groups were allowed to demonstrate without being silenced?  How were Afro descendant persons represented in the media?  An Expert also inquired about the measures put in place by the Government to combat hate speech.  

Alexei S. Avtonomov, Committee Rapporteur for Guatemala, in concluding remarks, said the dialogue had been constructive and showed Guatemala’s commitment to human rights in general and the International Convention on the Elimination of All Forms of Racial Discrimination in particular.  Regarding the conflicts that had arisen around the exploitation of natural resources, the Committee had to consider the State’s action in that matter.  He called for better protection measures that took into consideration cultural realities.  Progress was also needed in matters of indigenous justice; the Government should seek to improve these communities’ daily lives.

Ms. Domínguez Sebastián, in her concluding remarks, welcomed all the opinions voiced and comments made as part of the dialogue.  While acknowledging that Guatemala continued to face major challenges, she said that the delegation’s presence should be seen as a reiteration of the country’s commitment to human rights, notably those of indigenous peoples and Afro descendant persons.  The past six hours of dialogue had been a great learning opportunity.  She assured the Committee that its concluding observations would be useful for the State.  

Noureddine Amir, Committee Chairperson, thanked the delegation for its availability and its openness.  He expressed admiration for the noble peoples of Guatemala.  He commended the delegation for showing willingness to answer all the questions put forward by the Committee.

The delegation of Guatemala consisted of representatives of the Presidential Commission on Racism and Discrimination against Indigenous Peoples of Guatemala, the Constitutional Court, the Congress of the Republic, the Ministry of Culture and Sport, the Peace Secretariat, the Agricultural Affairs Secretariat, the Presidential Commission on Executive Policies on Human Rights, the Ministry of Labour and Social Planning, the Office of the Defender of Women, the Ministry of Social Development, the Ministry of External Relations, the Indigenous Development Fund of Guatemala, and the Permanent Mission of Guatemala to the United Nations Office at Geneva.  

The Committee will next meet in public on Monday, 29 April 2019 at 10 a.m. for an informal meeting with non-governmental organizations to discuss the situation in Hungary, Lithuania and Zambia, whose reports will be reviewed by the Committee next week.

Report

The Committee has before it the combined sixteenth and seventeenth periodic report of Guatemala (CERD/C/GTM/16-17).

Presentation of the Report

MIRIAM JOSEFINA DOMÍNGUEZ SEBASTIÁN, Commissioner and Co-ordinator of the Presidential Commission on Racism and Discrimination against Indigenous Peoples of Guatemala, said the International Convention on the Elimination of All Forms of Racial Discrimination was the most important instrument against racial discrimination.  The Presidential Commission on Racism and Discrimination against Indigenous Peoples of Guatemala was created in 2002 and stemmed from the Peace Accords, notably the Accord on Indigenous Peoples’ Identity and Rights.  Regarding the demography of Guatemala, the Government had undertaken a census, and all processes put in place to that end placed a high priority on gender.  The human right to self-identification was promoted throughout the census, as attested by the inclusion of the option “Person of African descent/Creole/Afro-mixed-race” for the first time in census forms.  The Government was editing and digitizing the data and hoped to make public the first results in September 2019.

The Office for the Defence of Indigenous Women had reached out to 8,643 indigenous women in 2018.  The Government of Guatemala had recently created a new committee that focused on social development, which was mandated to coordinate, elaborate and manage the national development plan K’atun Nuestra Guatemala 2032.  This committee was comprised of 13 ministries and five secretariats, and was chaired by the Vice-President of the Republic and coordinated by the Ministry of Social Development.

In a recent legal case brought before the Constitutional Court, a ruling upheld the right of indigenous peoples to participate in the elaboration, implementation and evaluation of development plans, be they economic, social or cultural, that could affect them directly.  The Constitutional Court’s decision also reaffirmed the need to respect the integrity of indigenous peoples’ values, practices and institutions.  Regarding the progress made in complying with the Constitutional Court’s decisions, she said numerous consultations with indigenous peoples had taken place.  For instance, consultations had taken place with the Maya Ixil communities of San Juan Cotzal since in 2016 and they had led to over 18 operative agreements.

In accordance with the law on the urban and rural development councils, the Government promoted the organization of assemblies to elect representatives of indigenous peoples to Departmental Development Councils.  Between 2013 and 2017, representatives and substitute representatives were elected through 117 elections.  In 2018, 1,395 persons took part in 30 assemblies.  Regarding the situation of indigenous women, she said that between 2017 and 2019, 492 sentences were handed down in matters relating to violence against women.  The Supreme Court of Justice approved in 2016 a protocol on the provision of support to indigenous women to ensure their access to justice, as well as a protocol on the provision of care to women who had been victims of violence.  The National Office of Women promoted legislative measures to ensure that female indigenous domestic workers enjoyed just and satisfying working conditions.  This had led to the examination of a draft bill by the Guatemalan Congress, which was in the second reading phase.  The Government had launched self-identification campaigns in the context of the twelfth census, she added.

Another member of the delegation said that the Constitutional Court enjoyed specific powers that it exercised independently from other public institutions.  It had resolved significant legal disputes, notably some pertaining to indigenous issues.  It had recognized the importance of, and promoted, legal pluralism, notably by acknowledging indigenous legal institutions, effectively implementing international human rights standards in the process.  Insufficient knowledge about the indigenous legal institutions could generate social unrest and impede governance.  The Constitutional Court found that it was necessary to establish legal pluralism, notably by providing appropriate resources to indigenous judicial institutions.  It was problematic that judges ignored the indigenous judicial system when trying indigenous persons.  Jurisprudence established the right to consultation of indigenous peoples, she added.

Questions by Committee Experts

ALEXEI S. AVTONOMOV, Committee Rapporteur for Guatemala, said that outstanding problems remained and Guatemala had unfortunately experienced setbacks, despite the progress achieved.  It was important to note that Guatemala had usually been timely in submitting its periodic reports.  Further, the report’s methodology had improved: there was an order to it, and it addressed the Committee’s concerns.  Noting that the Government had stated that all judicial decisions handed down in Guatemala adhered to the Convention, he asked for further details and examples.  The Committee sought to understand the extent to which the Convention and the Constitution of Guatemala were in harmony.

The Rapporteur also requested information on commitments made by the Government regarding the rights of indigenous peoples.  Were indigenous peoples and their representatives involved in the efforts deployed to meet these commitments?  The Committee took note of the Government’s 2015-2019 plan on public prosecution, which sought to consolidate relations with indigenous communities.  He asked who interpreted indigenous customary laws.  Did the Government invite people with knowledge of customary legal norms to take part in their interpretation to ensure they were properly implemented?

In the palm oil plantations, there were cases of exploitation which amounted to forced labour according to information received by the Committee.  As Guatemala was party to many International Labour Organization conventions, the Rapporteur asked for information about labour inspections in the farming sectors, in particular in areas mostly populated by indigenous persons.  

The delegation was asked to comment on restricted access for labour inspectors to work sites.  How did the delegation explain the discrepancy between the amended labour code and the International Labour Organization convention pertaining to labour inspections?  Turning to the situation of children of indigenous communities, Mr. Avtonomov asked how the Government protected them from multiple forms of discrimination.  

It was important for media outlets to report in indigenous languages to ensure that indigenous persons were fully aware of their rights, the Rapporteur said.  What type of regulation was in place in that regard?  The Committee looked forward to examining the results of the census. 

The delegation said the Constitutional Court had ruled on specific elements related to healthcare in a culturally relevant approach, Mr. Avtonomov said.  It had said, notably, that relevant administrative bodies should be able to provide appropriate and culturally relevant services to indigenous women.

Another Expert said that the presence of a representative of the Constitutional Court in the room was significant and indicated that the country had made great progress down the right track.  The policy being followed in the country gave rise to great hope.  In this regard, it would be helpful to obtain more information on the role of the Constitutional Court in the elaboration of case law.  Regarding the legislative initiative seeking to regulate the right to prior consultation, he asked if they had been put together following a consultation.  If so, who had been consulted and how?

GUN KUT, Committee Rapporteur for Follow-up to Concluding Observations, commended the State party for its timely submission of reports.  The Committee needed more information on paragraph 68 and the State party’s declaration to the effect that political will to tackle racial discrimination was still lacking in Guatemala.

Another Expert drew the delegation’s attention to the occurrence of hate crimes against people due to their gender identity or sexual orientation.  In that regard, the draft bill 52/72 was concerning.  At face value, it violated the rulings of the Inter-American Court of Human Rights.  He asked the delegation to comment on this bill.  What policies had the Government adopted to combat discrimination based on gender identity or sexual orientation?

Another Expert asked about indigenous persons working in the informal sector. Which provisions of the labour code protected them?

Were law enforcement officials trained to ensure that indigenous groups were allowed to demonstrate without being silenced?  How were Afro descendant persons represented in the media?  He also inquired about the measures put in place by the Government to combat hate speech.  On agricultural workers, how active were the labour inspectors?

Had the bill mentioned in paragraph 14 of the report become a law, asked another Expert?  While it was obvious that Guatemala had achieved significant progress on the legislative front, the information provided by civil society organizations indicated a lack of strong institutions to implement the relevant laws and address their concerns.  It should not be necessary for the Committee to echo the civil society’s grievances for them to be addressed by the Government.  How did the Government intend to strengthen its institutions to better serve the vulnerable segments of its population and address their concerns?

Another Expert asked for clarification regarding the primacy of international treaties over domestic legislation, including the Constitution.

Replies by the Delegation

The delegation provided information on the work of Guatemala’s Congress to combat racial discrimination.  There were 15 indigenous members of Parliament in Guatemala, one of whom was a woman.  Congress was considering or had endorsed various legislative initiatives aiming to thwart discrimination; acknowledge the existence of the Afro descendant Creole people; foster food security in indigenous communities; guarantee the right to correct or update information held by the Government in relation to the right to work; acknowledge indigenous customs, languages and dialects; bolster indigenous community radios; and fully respect the rights of indigenous peoples and people of African Descent.  

Further, the Presidential Commission on Dialogue had strengthened the departmental commissions on conflict prevention, in which indigenous persons took part.  It had also developed a national policy on dialogue seeking to foster a culture of dialogue, as well as of respect, inclusion and intercultural exchanges at the national level and throughout the country.  This initiative received technical support from the United Nations Development Programme.  The Commission on Dialogue had also conducted 431 dialogue processes addressing social conflicts that had had a significant impact, as well as five dialogue processes that were strategic in nature and which tackled social conflicts with a focus on structural and systemic factors.  The latter processes were related to agro-industrial and electrical grid development projects, amongst others. 

The delegation said that the Peace Secretariat had elaborated a Political Peace Agenda 2017-2026, aiming to analyse the implementation of the Peace Accords.  The Agenda established 750 commitments, 439 of which had already been met.  The Secretariat had also provided logistical and technical support to the National Women’s Forum.

The delegation assured that the Presidential Commission on Executive Policies on Human Rights took action with a human rights-based approach, in accordance with its internal guidelines, when dealing with cases of occupation and eviction.  As soon as legal proceedings for an eviction were launched, the Commission on Executive Policies on Human Rights played a central role.  Assistance was provided to the persons who had been evicted, aiming to preserve their lives, physical integrity and ensure their access to humanitarian care.  On human rights defenders, since 2008, there had been a body tasked with the analysis of the attacks against them.  Its mandate was extended by four years in 2018.  Turning to the compensation of victims of the Chixoy hydroelectric dam project, the delegation said that Commission on Executive Policies on Human Rights was responsible for the implementation of the Chixoy policy, which was adopted in 2014.  This policy notably provided for various infrastructure projects benefiting 33 communities that had been displaced.  Over one thousand million quetzals had been allocated to these projects, which were carried out by 35 State institutions.  The Commission on Executive Policies on Human Rights also oversaw a monitoring system that tracked the implementation of the provisions of international conventions.  It reviewed all the recommendations made to Guatemala by the United Nations treaty bodies.

Since 2017, the Ministry of Sports and Culture had held regional workshops with representatives of indigenous communities to better understand the issues they were confronted with; elaborate proposals related to their development; and establish mechanisms to strengthen the civil engagement of indigenous peoples.  In order to counter discrimination against indigenous women, training was provided to those women, aiming to foster their economic empowerment through culture as well as the recovery of ancestral knowledge.  Between 2013 and 2018, over 5,000 indigenous women, young and old, had taken part in this training.  In addition, to contribute to multicultural education, the Ministry of Sports and Culture had promoted the wider knowledge of Mayan, Garífuna and Xinka history, philosophy and medicine.  Over 7,000 educational pamphlets had been distributed through public and private entities in that context.  A country’s development was an ongoing process and the Ministry of Sports and Culture had carried out actions to alleviate the effects of discrimination and racism, the delegation stated.

Concerning the demography of Guatemala, the delegation reiterated that the Government was still editing census data, aiming to publish it in September.  There had been an increase in the participation of Afro descendant and Garífuna people in elections.  Measures had been put in place to combat intersectional and multiple discrimination affecting women, including Garífuna women.  The Presidential Commission on Racism and Discrimination against Indigenous Peoples of Guatemala had partnered with the United Nations Entity for Gender Equality and the Empowerment of Women, amongst others, to increase the participation of Afro descendant and Garífuna women in political and public life and improve their access to education, work and health care services that were culturally relevant.  Together with the Ministry of Economy, the Commission on Racism and Discrimination against Indigenous Peoples of Guatemala had also offered training to female entrepreneurs to foster economic projects that benefited local economies.

The delegation went on to describe the work carried out by the Ministry of Social Development to combat multi-sectoral discrimination.  Between 2016 and 2019, more than 6,000 people, including people from the Maya, Xinka, Garífuna and Afro-mixed-race communities, benefitted from training it offered.  Local and regional employment fairs were held to encourage private companies to hire persons with disabilities.  Further, the General Labour Inspector had made changes to ensure that inspectors were jurists and spoke local languages.  Inspections could be conducted jointly with the prosecution services to ensure that adequate action was taken, when children were found on work sites, for instance. 

The Agricultural Affairs Secretariat acted as a mediator to settle disputes.  It employed 225 persons, 21.33 per cent of whom were indigenous.  The Secretariat used various tools to assist displaced persons through an institutional protocol that focused on human rights and humanitarian assistance.  Between 2013 and 2019, it had received more than 3,000 cases involving over 1 million people, more than 800,000 of whom were from indigenous towns.

The delegation underscored the importance of combatting domestic violence against women.  To that end, the Office of the Defender of Women undertook various actions with a community-based approach.  Its strategy involved community participation, which was the most effective way to prevent violence against women at the local level.  Aiming to restore women’s rights, the Office of the Defender of Women had processed 40,000 complaints filed by indigenous women between 2012 and 2018.  

The Indigenous Development Fund of Guatemala had reviewed the National Policy on Indigenous Peoples and the reparations proposal related to the electric dam in Chixoy.  Thanks to its 36 million quetzals budget for the year 2019, it would carry out various projects, including the creation of information technology centres in rural areas aiming to foster indigenous peoples’ access to technology, with a culturally relevant approach.   

Article 46 of the Constitution established a general principle whereby, in matters pertaining to human rights, international treaties and conventions ratified by Guatemala superseded domestic laws.

The Constitutional Court ensured equal access to justice through a five-year plan and a policy that outlined segments of the population that required particular attention, namely children, adolescents, the elderly, indigenous peoples, persons with disabilities, migrants, persons suffering from chronic illnesses, and persons deprived of liberty.  Guatemala had signed agreements to translate relevant legal documents in indigenous languages.  The Constitution had already been translated in various indigenous languages.

Questions by Committee Experts

ALEXEI S. AVTONOMOV, Committee Rapporteur for Guatemala, welcomed all the efforts made by Guatemala to overcome structural discrimination.  Noting that a bill on human rights defenders was being examined by Congress, he stressed that these defenders played an important role.  According to information received by the Committee, defenders of indigenous rights in particular were in a difficult situation, and some of them had been subjected to imprisonment.  He asked the delegation to comment on this situation and provide information on the public policies that sought to address this issue.

Another Expert said that there were deliberate campaigns to defame human rights defenders, including on social media.  He asked how the Government’s policies to combat this had been conceived and how they addressed the attacks against human rights defenders that had been witnessed on the ground.  He said that the Canadian Supreme Court would decide by the end of the year whether Canadian courts had jurisdiction on matters related to actions carried out abroad by Canadian companies.

Replies by the Delegation

The delegation said that accusations made by the authorities pursuant to actions carried out by human rights advocates on an individual basis complied fully with the Guatemalan legal framework.  The State could not accept any allegation that it was in connivance with some sort of discriminatory policy.  Any allegations that the State was pursuing discriminatory policies were unwarranted.  When individual cases for which judicial proceedings were ongoing were cited, the State could not comment.  If amongst the accused there were people labelled as human rights advocates, it did not mean that the State was targeting them.  Quite to the contrary, the State was developing a policy to protect human rights defenders.  Members of civil society had decided to withdraw from the process that should lead to the elaboration of this policy, but the State stood ready to resume talks.  Article 46 of the Constitution testified to the goodwill of Guatemala and its willingness to develop and provide prosperity to its citizens.  The country was still fragmented, and peace would not be achieved if part of the international community failed to see the full picture of its situation.

MIRIAM JOSEFINA DOMÍNGUEZ SEBASTIÁN, Commissioner and Co-ordinator of the Presidential Commission on Racism and Discrimination against Indigenous Peoples of Guatemala, said Guatemala was full of goodwill as the presence of various public institutions illustrated.  The Government believed this dialogue would further fuel its efforts to fight against discrimination and racism.

Questions by Committee Experts

An Expert asked what percentage of the State’s budget was earmarked for indigenous peoples.  Could the State provide statistics on racial discrimination to the Committee, including those that had been referred to during the discussion on the work of the Office of the Defender of Women?

Another Expert said it would have been useful to hear from people that did not represent the Government, such as the Ombudsperson.  On forced evictions, Afro descendant persons were regularly victims of forceful or violent evictions, which had had a major impact on communities.  Were there measures in place to address this situation and provide appropriate remedy?  He also asked how the two judicial systems of Guatemala and of the indigenous persons interacted, notably as regarded appeals.

Another Expert asked if the Garífunas of Guatemala were members of regional coalitions.  Concerning bilingual education, what plans did the Government have to increase access and expand the grades covered?

Another Expert said that the contradicting accounts on the current state of affairs in Guatemala were baffling.  While no one questioned the Government’s good faith, the impact that the activities outlined by the delegation had had was unclear.  The Government should honestly and constructively evaluate its own policies.  She asked for details about migration and the Roma population.

Replies by the Delegation

The delegation said the Office of the Defender of Women did not receive complaints about racial discrimination, but rather provided legal advice to victims and helped them lodge complaints with the appropriate body.  Concerning the Constitutional Court, it was a permanent court tasked with the preservation of the constitutional order.  The full mandate holders had to present their decisions and inform their alternates every day.  The alternates also sat every day.

On evictions, the situation was highly complex and required taking into consideration a large number of facts, the delegation added.  For instance, some communities had settled in preserved areas, thus violating international agreements.  Sometimes, people left of their own free will before the eviction orders were enforced.  The situation at the Mexican border was complex.  At no moment would the Government force people to move, but it provided options that would allow them to relocate.

Concluding Remarks

ALEXEI S. AVTONOMOV, Committee Rapporteur for Guatemala, said the dialogue had been constructive and testified that Guatemala was committed to human rights in general and the International Convention on the Elimination of All Forms of Racial Discrimination in particular.  He underlined the fact that the delegation was comprised of high-level representatives of all the branches of Government.  Regarding the conflicts that had arisen around the exploitation of natural resources, the Committee had to consider the State’s action in that matter.  He called for better protection measures that took into consideration cultural realities.  Progress was also needed in matters of indigenous justice; the Government should seek to improve these communities’ daily lives.

MIRIAM JOSEFINA DOMÍNGUEZ SEBASTIÁN, Commissioner and Co-ordinator of the Presidential Commission on Racism and Discrimination against Indigenous Peoples of Guatemala, welcomed all the opinions voiced and comments made as part of the dialogue.  While acknowledging that Guatemala continued to face major challenges, she said that the delegation’s presence should be seen as a reiteration of the country’s commitment to human rights, notably those of indigenous peoples and Afro descendant persons.  The past six hours of dialogue had been a great learning opportunity.  She assured the Committee that its concluding observations would be useful for the State.

NOUREDDINE AMIR, Committee Chairperson, thanked the delegation for its availability and its openness.  He expressed admiration for the noble peoples of Guatemala.  He commended the delegation for showing willingness to answer all the questions put forward by the Committee.

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