CHAPTER XI
THE RIGHTS OF BLACK COMMUNITIES
A. INTRODUCTION
1. Black slavery was introduced into New Granada practically with the arrival of the earliest European conquerors and settlers. It was first licensed by the Spanish Crown in 1510 and its evolution from household slavery to plantation chattel slavery changed in keeping with economic development in Colombia, primarily in agriculture along the two ocean coasts of the country over the ensuing centuries.( 1 ) Estimates vary regarding the number of slaves brought from Africa or of African origin. One source places the number at 54,000 by the end of the 18th century while another calculates their numbers at between 130,000 to 180,000 by the time of the French Revolution.( 2 ) The primary port of entry was Cartagena and the slaves came from a variety of African regions and linguistic and ethnic groups.
2. In 1812 Cartagena prohibited the further importation of slaves, and further, abolished slavery in Antioquia in 1816. Simon Bolívar promised to abolish slavery nationally in 1816 and the Congress of Angostura in 1819 established the goal of total but gradual emancipation.( 3 ) In any event, slavery continued to exist, although in diminishing numbers, until it was definitively abolished on January 1, 1852.( 4 )
3. In practice, however, black slavery disappeared more gradually over time. The attendant conditions of legal and economic inequality and discrimination, nevertheless, have persisted for another century and a half and these are the subjects of this Chapter.
B. LEGAL FRAMEWORK
4. International human rights instruments, in the inter-American and the universal system, contain numerous provisions which are relevant for an analysis of the situation of black communities. In fact, the right to equal protection and enjoyment of rights for all is one of the underlying tenants of the international law of human rights. Non-discrimination on the basis of race lies at the heart of human rights law.
1. International Provisions
5. Article I of the American Convention on Human Rights (the "Convention" or the "American Convention") provides that the States Parties to it, "undertake to respect the rights and freedoms recognized herein and to ensure to all persons subject to their jurisdiction the free and full exercise of those rights and freedoms, without any discrimination for reasons of race, color, …" Also, Article 3 of the American Convention guarantees: "Every person has the right to recognition as a person before the law." Article 24 of the Convention stipulates: "All persons are equal before the law. Consequently, they are entitled, without discrimination, to equal protection of the law."
6. The American Declaration on the Rights and Duties of Man provides:
Article II: All persons are equal before the law and have the rights and duties established in this Declaration, without distinction as to race, sex, language, creed of any other factor.
Article XVII. Every person has the right to be recognized everywhere as a person having rights and obligations, and to enjoy the basic civil rights.
7. The International Convenant on Civil and Political Rights provides at Article 26:
All persons are equal before the law and are entitled without any discrimination to the equal protection of the law. In this respect, the law shall prohibit any discrimination and guarantee to all persons equal and effective protection against discrimination on any ground such as race, color, sex, language, religion…
2. Domestic Legal Provisions
8. Article 2 of the Constitution of Colombia of 1991 in its second paragraph declares:
The authorities of the Republic exist to protect the lives, honor, property, beliefs and other rights and liberties of all persons residing in Colombia and to ensure compliance with the social obligations of the State and private persons.
9. Article 5 states:
The State recognizes, without any discrimination, the primacy of the inalienable rights of human beings and supports the family as the basic institution of society.
10. Article 7 states:
The State recognizes and protects the cultural and ethnic diversity of the Colombian nation.
11. Article 8 holds:
It is the obligation of the State and individuals to protect the cultural and natural wealth of the Nation.
12. Article 10 provides:
Spanish is the official language of Colombia. The languages and dialects of the different ethnic groups are also official in their territories. The education provided to communities with their own linguistic traditions will be bilingual.
13. Article 13 states:
All persons born free and equal before the law, will receive the same treatment and protection from the authorities and will enjoy the same rights, freedoms and opportunities without discrimination of any kind on the basis of sex, race, national origin, or family language, religion, political or philosophical opinion.
14. Article 17 asserts:
Slavery, servitude and the sale of human beings are prohibited in all their forms.
15. Transitory Article 55 says:
During the two years subsequent to the date on which the Constitution enters into force, the Congress will issue, after study by a special commission to be created by the government a law which grants to the black communities that have occupied undeveloped lands in the rural riparian areas alongside the rivers of the Cuenca and Pacific, in conformity with their traditional systems for production, the right to own as collective property those areas which the law designates.
Representatives elected by the involved communities will participate in the special commission established in the preceding paragraph.
The properties recognized in this manner will be inalienable, pursuant to the provisions of the law.
The same law will establish mechanisms for the protection of the cultural identity and the rights of these communities and for the support of their economic and social development.
16. Finally, in order to implement Transitory Article 55, Congress enacted Law 70/93 "Law of Black Communities", which will be examined more fully below.
C. NEGROES IN COLOMBIA – 1998
17. Maurice Glele – Ahanhanzo, Special Rapporteur of the United Nations on contemporary forms of racism, racial discrimination, xenophobia and related intolerance, in his 1997 report entitled "Implementation of the Programme of Action for the Third Decade to Combat Racism and Racial Discrimination" estimates that of a national population, persons of African or mixed African descent total six million individuals and constitute about 16 percent of the whole Colombian population.( 5 ) Afro-Colombians, a term employed more and more frequently by black or partly black Colombians themselves, live primarily along the Pacific and Atlantic coasts and form majorities or sizeable minorities in a number of large and medium sized cities, including Cartagena, Buenaventura, Cali, Turbo, Barranquilla, Medellín and Quibdó.( 6 )
18. The Colombian Government has published, on the basis of a 1993 census, a much smaller estimate of the number of black and native Colombians—some 930,000 or 2.75 percent of the whole. In its Action Plan for the Afro-Colombian and Indigenous Population, a Government agency reported that together these populations constitute roughly 3.2 percent of the national population—some 1.1 million persons in all. Finally, the consulting group, Cowater International Inc., in a 1996 study commissioned by the Inter-American Development Bank, using a broader definition of the term afro-Colombian, estimated that black Colombians constitute some 30 percent of the national population. ( 7 )
D. DISCRIMINATION
19. Irrespective of the number of persons of African descent, partial or pure blooded, it is beyond dispute that black and mestizo black persons form the largest minority group in the Colombian nation. Furthermore, there has been in recent years a most welcome recognition by the State at all levels, and by and large, by society as a whole that afro-Colombians have suffered racial discrimination and that such discrimination persists to the present.( 8 ) In fairness, however it should be pointed out that such discrimination does not constitute a conscious policy of the State.
20. During its on-site visit to Colombia in December, 1997 the Inter-American Commission on Human Rights (the "Commission," the "IACHR" or the "Inter-American Commission") heard numerous testimonies evidencing active and passive discrimination by State and private actors alike. It is important to point out that complaints made by black Colombian citizens and corroborated in various sociological studies in recent years, refer to both a pattern of official as well as unofficial, discrimination. With respect to the latter, offensive stereotypes in the media, the arts and popular culture tend to perpetuate negative attitudes towards blacks and these often unconscious views are commonly reflected in public policy when governments at all levels distribute limited State resources. ( 9 )
E. SOCIO-ECONOMIC CONDITIONS
21. Hence, the Commission has received ample documentation demonstrating that black Colombians have, perhaps with the exception of the Colombian indigenous population, the lowest per capita income, extremely high rates of illiteracy in both urban and rural areas, very high indices of infant mortality and serious diseases including malaria, dengue fever and gastrointestinal and respiratory infections. The causes of this situation include the frequent lack of potable water, electricity and medical facilities. ( 10 )
22. The employment picture for black Colombians is likewise bleak. Urban blacks, the majority of afro-Colombians, far more often find themselves in domestic service, day work construction job and street vendor activities in the so-called informal sector than their white fellow citizens.
23. In rural areas black Colombians frequently labor on tiny farms or as workers on large ranches and plantations. Yeoman fishing on a subsistence level also provides employment to a considerable number of blacks. ( 11 )
24. In contrast with this reality, there is a marked dearth of black Colombians in middle and high level government and private sector positions. Blacks are rarely commissioned as officers in the military forces, and aside from some cities and towns where they enjoy an electoral majority they are underrepresented in elected and appointed positions in government. A similar generalization can be made regarding the paucity of blacks in other branches of government as well as the civil and diplomatic services. It has also been observed that the Catholic Church, the predominant religion in Colombia, also has relatively few priests and nuns of color and fewer yet within the ecclesiastical hierarchy. The same phenomenon is observed in business and the media where the absence of blacks is the general rule. White collar jobs in the liberal professions of medicine, dentistry, law, the natural and social sciences and education at all levels, have historically been closed to blacks except the lucky and persistent few.( 12 )
25. Not surprisingly, government investment in infrastructure, health, education, housing and general welfare have been very low in areas inhabited primarily by afro-Colombians.
F. VIOLENCE AND BLACK COLOMBIANS
26. Large numbers of afro-Colombians reside in some of the most conflictive areas of the national territory. While this subject has been examined at length in previous Chapters of this Report, it is safe to generalize that terror and violence as practiced by all of the contending forces in Colombia have taken their greatest toll on the Colombians living in extreme poverty—a disproportionate number of whom are black citizens. For example, the Commission in its visit to Turbo and Apartadó, in the Urabá region of the Department of Antioquia, learned of the ferocious consequences of the struggle among armed dissident groups, mainly the Revolutionary Armed Forces of Colombia (Fuerzas Revolucionarias Armadas de Colombia - "FARC"), and paramilitaries commanded by the Castaños as well as the active and at times passive role of the Army in repressing local populations. The Commission was able to observe that the majority of the internally displaced persons populations residing in shelters and camps in the area consisted of black persons.
27. The Commission has also been told of instances of apparent "social cleansing" in which black prostitutes and street gamines have been assassinated. In some of these incidents, the victims may have been targeted, at least in part, on the basis of their color.
G. GOVERNMENT ACTION
28. In adopting the 1991 Constitution, and in particular, in sanctioning Transitory Article 55, cited above, the Colombian State took a positive step to begin redressing the historical ill-treatment of black persons in Colombia. In 1993, Congress enacted and the Executive signed Law 70/93 which established within its National Development Plan the Plan for Afro-Colombian Development (the "Plan").
29. One of the most salient features of Law 70/93 includes the creation of a special constituency to assure two seats in the National Congress to black communities. In addition, the Law recognizes the right of black communities to collective ownership of some riparian lands on the Pacific coast. Further, the Law recognizes subsoil rights thereon and the need to provide further resources to fulfill the constitutional guarantee of education for all citizens.
30. To implement the Plan, Law 70/93 contemplates the formation of autonomous territorial planning councils and regional assemblies. Community involvement and participation by those whose interests are at stake are important ingredients in the Plan. Thus, community organizations have the possibility of making their views heard and taken into account through this arrangement.
31. While there has been criticism of the definition of an afro-Colombian as provided in the Plan, thereby explaining perhaps the discrepancies in the demographic data referred to earlier in this chapter, greater discontent stems from its slow implementation and its as yet negligible impact on the lives of those intended to benefit from the Law.
32. Be that as it may, the formal recognition of centuries-old injustices and the establishment of mechanisms to fix goals and monitor fulfillment of the Plan are singularly important steps in a process. Even the most optimistic recognize that this process includes very ambitious goals that will require a long time to realize.
33. The State has informed the Commission that the National Development Plan 1998-2002 proposed by the Government of President Pastrana provides for special consideration of the needs of the black communities. According to the State, the efforts of the Government will be directed toward overcoming the obstacles that impede the full integration of the members of these communities into Colombian national life. They will also be directed at those obstacles that prevent the black communities from raising their standard of living.
H. RECOMMENDATIONS
Based on the foregoing, the Commission makes the following recommendations to the Colombian State:
1.
The State should accelerate the implementation of the Afro-Colombian Development
Plan, particularly in the demarcation of collective community lands with the
corresponding protection of the timber, flora, fauna and mineral resources found
therein.
2.
The State should enact a law defining and providing legal remedies for acts
of public and private racial discrimination.
3.
The State should enhance, among the general population and among those in
public service, particularly in the police and Military Forces, awareness of
racism and its effects and to provide necessary educational programs and training
for this purpose.
4.
The State should take special measures to assure equal access to positions
in public service to persons of all complexions.
5.
The State should assign more fairly State resources to areas populated primarily
by black Colombians with emphasis on such basic goods and services as roads,
potable water systems, electrical power, health facilities and educational institutions.
6.
The State should vigorously investigate, prosecute and punish those, who for racial motives, commit crimes against persons of color.
Notes______________
( 1 ) Robert H. Davis, editor, Historical Dictionary of Colombia, second edition, Latin America Historical Dictionaries, No. 23, 1993, at 49.
( 4 ) Barbara A. Tennembaum, editor in chief, Encyclopedia of Latin American Culture, vol. 5, at 137.
( 5 ) Implementation of the Programme of Action for the Third Decade to Combat Racism and Racial Discrimination, Economic and Social Council of United Nations, Commission on Human Rights, E/CN.4/ 1997/71/Add.1, 13 January 1997 [hereinafter Implementation].
( 6 ) The expression "afro-colombian" is employed in Colombian legislation. For example, Law 70/93 as well as by a growing number of national and international non-governmental organizations such as "Cimarrón-Movimiento Nacional por los Derechos Humanos de las Comunidades Afrocolombianas" and "La Fundación Afroamérica" use the term.
( 7 ) Cowater International Inc., Sánchez and Franklin, editors, Comunidades de Ancestría Africana, Chapter 8, "Diagnóstico de las Comunidades Negras de Colombia," 1997, at 127 [hereinafter Cowater Report].
( 8 ) See Directorate for Black Communities Issues, Ministry of the Interior, Visión, Gestión y Proyección, 1997, at 14 et. seq. [hereinafter Directorate for Black Communities Report].
( 9 ) Implementation, at 9, citing CIMARRÓN.
( 10 ) Directorate for Black Communities Report, at 14.
( 11 ) Cowater Report, at 129-130.