Photo: Santiago Mesa/¡Pacifista!
This article has been published as part of the partnership between ¡PACIFISTA! and democraciaAbierta. You can read the original article here.
Shortly before the final signing of the first agreement in Havana, on 26 September, 2016 – as if it were only a minor matter that could be left until the end – the government and the FARC agreed on an ‘ethnic’ chapter, accompanied by the representatives of indigenous and afro-Colombian communities.
In spite of its short length – just two pages – this chapter of the agreement has two great achievements. Firstly, it states the implementation of the agreement must be carried out respecting the particular rights already afforded to ethnic populations. And secondly, in the case that these rights are affected, these populations must be consulted first. These two points, in theory, presented the indigenous, afro-Colombian, raizales, palenqueras and gitanas communities with an enormous opportunity.
To begin implementing of the peace agreement, the government several pieces of ‘fast track’ legislation to Congress, the procedure allowing projects to be carried out in half the usual time. But how much have the proposals that affect ethnic communities in these projects been discussed?
The first fast track law, adopted on 30 December, 2016, was that of Amnesty Law. In this instance, the application of indigenous ‘codes of law’ were not discussed, neither whether it was appropriate to apply special treatment to the indigenous groups that participated in hostilities.
Similarly, on 28 March, legislation was passed that would create the Special Jurisdiction for Peace (JEP), the Truth Commission and the Search for Missing Persons Unit. The creation of these entities will directly affect ethnic populations, for better or for worse. Among the more complex issues will be the relationship between the JEP and indigenous ‘codes of law’ – and although this was known from the beginning, no one has held a consultation with indigenous groups on this point.
Currently underway, there are other projects that also have a direct impact on the rights of these populations, protected by the ethnic chapter in the peace agreement. This includes the national agricultural innovation system; the regulation of the modification service of land; the statute of political opposition, and many others on environmental issues, namely the creation of ‘peace forests’ and the payment for environmental services. None of these projects have gone through prior consultation.
The consultation process
On 4 February, the Ministry of Internal Affairs and the Permanent Office of Indigenous Coordination agreed a methodological approach for prior consultation in the implementation of the peace agreement.
More than a month later, the National Assembly of Indigenous Organisations met to institutionalise these guidelines into their ‘express’ consultation process. The idea is that once the government presents a proposed project to the Permanent Office, the latter will have ten extendable days to discuss and approve it. If the consultation is not completed, the government will not be able to present the bill in Congress.
But one step is still missing. In order for the process to begin, a National Congress of Indigenous Populations must be convened, where it is communicated to the people and a mandate can thus be obtained. This is a difficult step, not only because of the required costs of bringing the Congress together, but because some indigenous communities are not part of the Permanent Office and do not want to adopt this approach.
But it is time that is the biggest concern, with only ten days to carry out the review of all the issues relating to the projects. At the same time, in the case of the government missing the consultation, the Constitutional Court will overturn the approved rules. If after five months of implementation, the ethnic populations have still not been consulted on the related issues that affect them, what happens to the projects that were approved or presented without this revision?
In such cases, of which the JEP and Amnesty Law are two examples, the prior consultation concludes with a statement on the project, even if it is not clear what impact it will have. Regarding rulings in process, ethnic populations are expected include themselves while the discussion is open. And on projects that are awaiting submission, the process should follow the methodological approach outlined above.
However, the risk is that the participation of ethnic populations has no impact at all, and instead becomes simply a gesture without substance.