The Case of Colombia
03 / 1993
Differents legal orders can coexist within a single society because they respond to varied situations. This is more evident in societies where there are ethnic minorities. In the case of Latin America, the 5th Centenary of the Spanish conquest brought Indian struggles for the recognition of these ethnic minorities into the line of sight. But the legal size of these struggles is widely unknown. This battle is nonetheless fundamental because the principles of western positive applied law written into latin american Constitutions and legislations (inspired by the individualist and universalist movement)it proposes the notion of "ethnic groups".
On this subject Colombia is a shining exemple. Indeed the constituting assembly elected in 1990 wrote into the new constitution a whole series of laws applicable to indigenous communities, thanks to serious mobilisation by the latter and a democratic debate all based on a new conception of the nation. Pluriethnic and pluricultural recognition does not only concern Indians but also Blacks and the descendants of afro-caribbean populations.
ONIC (Organisation of Colombia native nations), which is linking a project of a multi-ethnic and multicultural society with specific rights to minorities, to a national project of democracy was the principal organizer of this debate. It wasn’t possible to innovate as far as electoral circonscription or political representation were concerned. Therefore ONIC’s election programme was based on a project of participatory democracy, the Indian section insisted on: autonomous political and social organisation on Indian territories which would be declared inalienable and separate from the municipalities; bilingual and pluricultural education; the respect of customs, religions and of Indians common law. Two of the 72 elected constituants were Indians, they worked principally on articles concerning citizenship, political and human rights as well as the territorial organisation of the nation.
The information work done on the work of the commissions was very important and pedagogic. In May 1991, at the end of the session, the Indian communities visited Bogota to give their "wand of office" to the constituents, they declared: "With this wand we are not giving you our authority, the authority is ours because our communities have so decided. We want this symbol to come back to us in the form of rights, possibilities of life and spaces of participation".
Article 7 of the new Constitution states that the State recognises and protects the ethnic and cultural diversity of the Colombian nation. 17 other articles recognise Indian rights or those of other ethnic minorities in general, which include: accession to the Colombian nationality for those Indians living on the border provinces of Colombia and who are part of transfrontier ethnic groups; the election of two senators within a national Indian circonscription, five deputies representing ethnic minorities; recognition of indigenous territories with the same facilities as other local communities.
The new Constitution has given legitimity to this movement which has been trying for many years to link together law and social practice. It is still to be discovered how this can be used in a society in mid-crisis.
Other countries have also reformed their Constitutions to take into account Indian rights.
This has happened in Mexico:
a)article 4, paragraph 1 (28/01/92), "the Mexican nation has a pluricultural composition based on its indigenous peoples. The law will protect and promote the development of their languages, customs and specific forms of social organisation... In agricultural proceedings legal practices and customs will be accounted for...";
b)article 27 reformed (December 1992): recognition of the communal property of the land ("ejido"). Activities of information and popular legal training, a research into forms of application and groundwork should all support this legislative work so that it does not go unheeded.
Original card in French in Dph data base. The ’title/sub-title’ field corresponds to the ’translated title’ field in the French card.
* Magdalena Gómez, "Derechos indígenas: los pueblos indios en la Constitución Mexicana (art.4°, párrafo 1°)", México: Instituto Nacional Indigenista, 1992, 42 p.;
* "Artículo 27 Constitucional reformado, diciembre de 1991", México, 8 p.
Articles and files
KOLLER, Sylvie, La nouvelle citoyenneté indienne: le cas de la Colombie, CRIDEV in. BULLETIN CRIDEV, 1993/03 (France)