March 21/09 (IPS) – The annulment of the Rural Development Statute by the Constitutional Court opens a new chapter in the confrontation between the government of Colombia, presided over by Alvaro Uribe, and the indigenous peoples of this Andean country.
The Statute, or Law 1152 of 2007, was declared unconstitutional on Wednesday (sentence C-175 of 2009) because it did not fulfill the requirement of prior consultation with indigenous peoples and Afro-Colombian communities.
The Court determined that the processes of participation that were used "were brought forward in an inopportune way, contrary to the principle of good faith" and that "there is no evidence whatsoever that proper consultative procedures, including consultations with the governmental and traditional authorities according to the rules of prior consultation, were followed."
Prior consultation is required by Article 6 of Covenant 169 of the International Labor Organization (ILO) for all legislative or administrative matters that directly affect these ethnic groups.
The majority of the Constitutional Court ratified the jurisprudence in multiple sentences, requiring a true process of consultation of all affected communities, allowing them full information on projects and the opportunity to propose alternatives.
This is the second extremely important piece of legislation that has fallen for lack of adequate consultation.
The General Forestry Law was declared unconstitutional in January 2008 for this reason, in an historic sentence that collected years of decisions by the Court.
For the court, expressed in Sentence C-030 of 2008 on the forest law, prior consultation implied "making known to the communities, by way of sufficient and representative means, the law, examples of its application and how it will affect the community, and provide the communities with effective opportunities to pronounce on it".
According to the Administrative Council of the ILO, for the consultation to be effective, "sufficient time must be provided for indigenous peoples to engage in their own processes of decision-making and participate effectively in a way that is adapted to their cultural and social models."
Also, for the Court, "processes of consultation must above all guarantee the uses and customs of indigenous peoples, respecting the methods and processes of decision making that they have developed" (Sentence C-208 of 2007).
As in the case of the forest law, the Constitutional Court considered that the core of the Rural Development Statute, and not just some articles of it, directly affected indigenous and Afro-Colombian communities.
The general character of the law made it impossible to exclude indigenous and Afro-Colombian communities from its application, since it has an intrinsic and direct relation with them and an intimate connection with their identity and their possibilities for survival.
Territoriality is an essential part of indigenous life. For the court a law that seeks a holistic vision of rural development, which defines the form of resolving conflicts over property ownership, would have to have a very thorough consultation with indigenous communities.
Indigenous authorities and organizations repeatedly expressed that the Rural Statute did not recognize or eliminated fundamental rights.
The Statute prohibited the recognition of new indigenous reserves or legalizing existing ones on the pacific coast and the northwestern Atrato river, while allowing any municipality or department to include these territories in their territorial boundaries.
It also demanded that nomadic, seminomadic, and horticultural peoples assume permanent occupation as a condition for the recognition of their territories.
For the National Indigenous Organization of Colombia – Organización Nacional Indígena de Colombia (ONIC), the violence that victimizes rural communities demands "special measures to realize the required consultation for indigenous and black communities".
In a document sent to the Court to support the argument against the constitutionality of law 1152, ONIC stated that these measures would have had to arrest "violence affecting rural communities".
In Sentence T-025 of 2004, the Court affirmed that there is a generalized situation of violation of fundamental human rights of the rural population resulting in forced displacement, leading to a fundamental "State of Unconstitutionality".
This situation is the result of an armed confrontation that has gone on since the mid-20th century, with roots in conflicts over land and forced displacement. For the indigenous, this has been going on for five centuries.
According to ONIC, the government has "taken advantage of the State of Unconstitutionality to impose a law that undermines the collective rights of those affected by violence."
The fall of the Rural Statute was one of the objectives of the "Gran Minga de Resistencia", a mobilization of indigenous peoples throughout the country between October 11 and November 24 of 2008.
The Minga ("Minga" means "collective work for the common good") held a public debate with President Uribe on November 2, with thousands of indigenous people in attendance.
The legal challenge to the Statute for failure to consult indigenous people was presented by the humanitarian Colombian Corporation of Jurists and endorsed by peasant organizations.
In the debate on the Rural Statutes, indigenous organizations were part of a broad alliance including not only peasant organizations, but also those displaced by violence, the Black People’s Processes, small businesses, and worker’s unions.
The alliance articulated the many different visions, cultures, political conceptions, and interests of the groups into an alternative legal proposal and various common declarations.
For these organizations, the law was unconstitutional for several other reasons of process as well as content. Two lawsuits touched on these themes.
The first was presented by the indigenous representative to Congress, Orisinia Palanco, who denounced serious procedural problems that violated the right to political opposition and prevented the alternative legal proposal from being discussed as an alternative at the official level.
The second lawsuit denounced the regressive nature of the law with regard to constitutional rights of peasants, indigenous, afro-Colombians, rural workers, and those displaced by violence, with regard to food sovereignty and food security.
In the midst of the violence suffered by indigenous peoples of Colombia, the question is if the government will hear this second call to set things in order by the Court or if it will hope that the gradual changeover of Supreme Court justices will give it another chance to introduce the defeated jurisprudence.
Hector Mondragon is Coordinator of the Agriculture and Commerce Group of the Continental Social Alliance.
[Translated by Justin Podur]