PRELIMINARY OBSERVATIONS OF THE INTER-AMERICAN COMMISSION ON HUMAN RIGHTS AFTER THE VISIT OF THE RAPPORTEURSHIP ON THE RIGHTS OF AFRO-DESCENDANTS AND AGAINST RACIAL DISCRIMINATION TO THE REPUBLIC OF COLOMBIA

I.          INTRODUCTION

1.                  Afro-descendants in Colombia have endured a history of neglect, exclusion, and social and economic disadvantage that impair their enjoyment of fundamental rights.  The Afro-Colombian population comprises the largest segment of the most poverty-stricken classes in the country, with the lowest socioeconomic indicators; least access to basic services, such as education and health care; fewest opportunities for profitable employment, and the most limited access to participation in public life.

2.                  In addition, the regions of the country where this population comprises the majority are in the grip of humanitarian crisis triggered by the armed conflict that has been going on in Colombia for several decades.  The armed actors in the conflict have developed strategies that particularly affect civilians who live in conditions of extreme poverty.  In this framework, the Afro-descendant population has been the target of acts of individual and collective violence, forced displacement, and land seizures.

3.                  In spite of the laws in place against racial discrimination and of the legal recognition of the rights of the Afro-descendant communities that live on the Pacific coast to collective title deeds to lands, there persist in Colombia situations that are symptomatic of ongoing structural discrimination against the Afro-Colombians.

4.                  The Inter-American Commission on Human Rights (hereinafter, "the IACHR" or the "Inter-American Commission") first addressed the plight of Afro-Colombians in its Third Report on the Situation of Human Rights in Colombia[1], published in 1999.  In that report, the Commission made a series of observations and recommendations on the impact of discrimination, poverty, and the conflict on this population, as well as on the challenges in implementing the legal provisions that recognize the collective land rights of Afro-descendant communities.  Since then, the IACHR has followed up on the situation through a variety of mechanisms provided in the American Convention on Human Rights (hereinafter "the American Convention") and its Rules of Procedure, such as Chapter IV of its Annual Report and other special reports,[2] the individual petitions system, provisional measures requested from the Inter-American Court of Human Rights, and precautionary measures granted by the Commission.

5.                  By creating in 2005 the Rapporteurship on the Rights of Afro-Descendants and against Racial Discrimination, whose mandate is to stimulate, systematize, strengthen, and consolidate the Commission's efforts in this area,[3] the IACHR established a specialized mechanism to enhance analysis of the situation of Afro-descendants in the region.  The Rapporteur on the Rights of Afro-Descendants and against Racial Discrimination, Commissioner Sir Clare K. Roberts, has described the situation of the Afro-Colombian population as one of particular concern in the activities of this rapporteurship of the IACHR. 

6.                  Consequently, the Rapporteur, with the support of specialists of the Executive Secretariat, visited the Republic of Colombia from May 14 to 18, 2007, in order to gather information on the situation of Afro-descendants in that country.[4]  In the course of the visit, the delegation met representatives of the Colombian government, including the executive and legislative branches, officials from the Ministry of Foreign Affairs, Ministry of the Interior, Ministry of Education, Ministry of Culture, National Department of Planning (DNP), Presidential Agency for Social Action, Ministry of Defense and National Police, Ministry of Agriculture and Rural Development, and Department of Statistics [Departamento Administrativo Nacional de Estadística] (DANE).  The Rapporteur also held meetings at the Office of the Ombudsman and at the Office of the Attorney General [Procuraduría General de la Nación].  The delegation also held meetings with agencies involved in the implementation of the Justice and Peace Law, in particular the National Commission for Reparations and Reconciliation, and visited the offices of the OAS Mission to Support the Peace Process in Colombia (hereinafter “the MAPP/OAS Mission”).  It also exchanged views with representatives of the Office in Colombia of the UN High Commissioner for Human Rights (hereinafter "OHCHR Colombia").

7.                  In the course of the visit the Rapporteur received information and testimony from members of Afro-Colombian communities.  He also met representatives of civil society organizations that work on this issue, such as Black Communities Process (PCN), Displaced Afro-Colombians Association (AFRODES), ASOLIBERTAD, District Consultation for Afro-Colombian Communities of Bogotá, Afro America, National Conference of Afro-Colombian Organizations, RECOMPAZ, Eco Tambor, Black Communities Organization (ORCONE), CIMARRON NACIONAL, the Inter-Ecclesiastical Commission for Justice and Peace, and Global Rights.

8.                  The Rapporteur thanks the government and people of Colombia for their collaboration, support, and hospitality during the visit, and nongovernmental organizations, civil society institutions, and international agencies for their contributions and assistance in the preparation of the visit.

9.                  The comments of the Rapporteurship on the situation in Colombia contained in these preliminary observations are based on information collected during its visit, other sources, and observations put forward by the State.  These represent a first step in performing the mandate to raise awareness of the duty of the State to respect the rights of Afro-descendants and eliminate all forms of racial discrimination; identify the challenges that Colombia faces at present in this area; and formulate recommendations for overcoming the obstacles found.

10.              The preliminary version of this report was approved by the Commission on October 28, 2008 and, pursuant to Article 58 of the Rules of Procedure of the IACHR, forwarded to the Republic of Colombia on October 30, 2008, for its comments.  On December 1, 2008, the Commission received the comments of the State, which, where pertinent, have been included in the final version of this report.[5] 

II.           PRELIMINARY CONSIDERATIONS

A.           International obligations of the State as regards equality and nondiscrimination, as well as elimination of racism and racial discrimination

11.              Article II of the American Declaration of the Rights and Duties of Man provides,[6] "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 or any other factor. "  Article 24 of the American Convention states,[7] "All persons are equal before the law" and, consequently, "are entitled, without discrimination, to equal protection of the law. " Article 1(1) of the same Treaty provides that the States Parties undertake "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, sex, language, religion, political or other opinion, national or social origin, economic status, birth, or any other social condition".  These are the inter-American standards that govern the obligations of the Colombian State with regard to equality and nondiscrimination.[8]  In addition, the Member States of the Organization of American States (OAS) are currently engaged in the preparation of a "Draft Inter-American Convention against Racism and All Forms of Discrimination and Intolerance. "[9]

12.              Colombia is also a party to the International Convention on the Elimination of All Forms of Racial Discrimination,[10] which defines racial discrimination as:

[..] any distinction, exclusion, restriction or preference based on race, colour, descent, or national or ethnic origin which has the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise, on an equal footing, of human rights and fundamental freedoms in the political, economic, social, cultural or any other field of public life.[11]

In the light of this definition, this Treaty establishes the obligation for States Parties "to pursue by all appropriate means and without delay a policy of eliminating racial discrimination in all its forms."[12]  To that end, States Parties undertake:

a) [..] to engage in no act or practice of racial discrimination against persons, groups of persons or institutions and to ensure that all public authorities and public institutions, national and local, shall act in conformity with this obligation;

b) [..] not to sponsor, defend or support racial discrimination by any persons or organizations;

c) [to take] effective measures to review governmental, national and local policies, and to amend, rescind or nullify any laws and regulations which have the effect of creating or perpetuating racial discrimination wherever it exists;

d) [to] bring to an end, by all appropriate means, including legislation as required by circumstances, racial discrimination by any persons, group or organization;

e) [..] to encourage, where appropriate, integrationist multiracial organizations and movements and other means of eliminating barriers between races, and to discourage anything which tends to strengthen racial division.[13]

The Convention also requires States to take, in the social, economic, cultural and other fields, special and concrete measures to ensure the adequate development and protection of certain racial groups or individuals belonging to them, for the purpose of guaranteeing them the full and equal enjoyment of human rights.[14]

13.              The Declaration of the United Nations Educational, Scientific and Cultural Organization (UNESCO) on Race and Racial Prejudice also contains guiding principles on racial equality and nondiscrimination.  This Declaration describes how racism manifests itself as follows:

Racism includes racist ideologies, prejudiced attitudes, discriminatory behavior, structural arrangements and institutionalized practices resulting in racial inequality as well as the fallacious notion that discriminatory relations between groups are morally and scientifically justifiable; it is reflected in discriminatory provisions in legislation or regulations and discriminatory practices as well as in anti-social beliefs and acts; it hinders the development of its victims, perverts those who practice it, divides nations internally, impedes international co-operation and gives rise to political tensions between peoples; it is contrary to the fundamental principles of international law and, consequently, seriously disturbs international peace and security.[15]

14.              Coexisting alongside the definition of racism and racial discrimination, as well as the basic obligations of States in this area, are the efforts of the international community to establish objectives designed to overcome the inequality that encourages racism and racial discrimination.

15.              Concretely, in the Declaration and Plan of Action of Santiago,[16] which Colombia signed, the countries in the region recognize the existence of racism and racial discrimination in the Americas and its adverse effects on the enjoyment of human rights.[17]  The States gave firm undertakings to adopt institutional, political, legislative, and other measures to foster racial equality and eradicate racism and racial discrimination in the Hemisphere.  The Durban Programme of Action adopted at the United Nations World Conference against Racism, Racial Discrimination, Xenophobia and Related Intolerance, held in South Africa in 2001, sets out lines of action designed to overcome racism and racial discrimination against Afro-descendants in areas such as access to justice, education (in particular for women and youth of African descent), health, housing, and basic services, as well as participation in the public sector and stimulation of their inclusion in the private sector.  The Programme of Action also urges the resolution of problems of ownership of ancestral lands inhabited for generations by people of African descent.

B.                  The Afro-descendant population in the Republic of Colombia

16.              The arrival in Colombian territory of the first Afro-descendants coincided with the time that the early European conquerors and colonists reached the New World.  The Spanish Crown sanctioned the slave trade at the beginning of the 16th century.  Between 1533 and 1810, tens of thousands of Africans from such places as Upper Guinea, Lower Guinea and Angola entered the Viceroyalty of New Granada through the port of Cartagena de Indias and were put to work in fields, mines and as domestic servants[18].  Slavery was finally abolished on January 1, 1852, several decades after independence.

17.              Today, Afro-descendants comprise the second-largest ethnic and cultural group in Colombia, which also has the second-biggest Afro-descendant population in Latin America.[19]  The main groups identified are those located in the corridor in Colombia's Pacific coastal region (departments of Chocó, Valle del Cauca, Cauca, and Nariño); those that live on the San Andrés archipelago, Providencia, and Santa Catalina (raizales);[20] the community of San Basilio de Palenque (Municipality of Mahates, Bolívar Department);[21] and the population that resides in more than a hundred municipal towns as well as in cities such as Cali, Medellín, Quibdó, Barranquilla, Cartagena, and Buenaventura.

18.              Although the ethnic variable was introduced in the census carried out in 1993, the results showed that on that occasion only 1.5% (502.343) of Colombians identified themselves as Afro-descendants.  It has been determined that that figure did not reflect the actual size of the Afro-descendant population in Colombia because of the way in which the question as to the ethnic background of those covered by the census was worded, that is, without reference to racial identification by physical features.  It is thought that, as a result, many Afro-Colombians who live in urban areas said no to the question and were not counted as Afro-descendants.[22]

19.              The most recent national population census, which was carried out in 2005, recorded 4,311,757 people who identified themselves as Afro-Colombians (raizal, palenquero de San Basilio, black, mulatto and afro-descendant), equivalent to 10.6% of the national population.[23]  That census also collected disaggregated demographic data, inter alia, with regard to sex, literacy, level of education, child mortality, and life expectancy at birth of the Afro-descendant population.[24]

20.              In the course of his visit to Colombia, the Rapporteur had a meeting with officials from the Department of Statistics (DANE) at which he received information both on the methodology used in the census and on the dialogue held with organizations of the Afro-descendant movement on the terms used in the questionnaire, the training given to census takers, and how the census was conducted.  The State considers that the census findings reveal conceptual and technical progress in terms of information gathering from different groups, as well as the importance of the role of communities in the census operation.  The State mentioned that during the design phase forums were set up with the Afro-Colombian population to design the ethnic origin component and that  these forums made it possible to consolidate the questions for this component in the questionnaire with the issue of self-recognition by cultural features and, for the first time in a national census, self-recognition by physical traits.[25]

21.              However, representatives of the Afro-Colombian movement have disputed the census findings.  In their view, the Afro-descendant population comes to approximately 26% of the country's population.[26]  In fact, that is the percentage mentioned in the 1998 National Development Plan for the Afro-Colombian Population,[27] as well as in the 2004 report on Colombia of the UN Special Rapporteur on Contemporary Forms of Racism, Racial Discrimination, Xenophobia and Related Intolerance.[28]  This discrepancy amounts to approximately 10 million people, whose racial identity is uncertain.

22.              It is claimed that the census suffered from shortcomings that affected the data obtained, such as the identification categories and amount of training provided to census takers.  Specific reference was made to the exclusion of terms such as "moreno" ("brown"), which certain segments of the Afro-Colombian population use to identify themselves, preferring to avoid the word "black" owing to its historic negative connotations.  It has also been alleged that DANE partially reneged on its promise to Afro-Colombian organizations to arrange information campaigns on the census questionnaire.  Furthermore, in order to ensure the census was completed, the ethnic-racial question was often omitted and, according to testimonies, some census takers answered the question themselves based on their own perception of the ethnic-racial identity of the person they surveyed, or, because of security concerns, reportedly did not visit excluded neighborhoods and communities with high rates of violence.[29]

23.              In its comments, the State recognized that the ethnic origin component in the census did not include certain commonly used identification categories, such as "moreno".  The State affirmed that DANE only uses categories whose use is generalized and somewhat uniform throughout the country, in order to avoid confusion to the interviewee and any mistakes as a result.  It considers that the categories "black", " mulatto", "or Afro-Colombian" are not confusing, while the category “moreno” is used indistinctly, including by individuals who do not admit to being of African descent.[30]

24.              The State asserts that since the 2005 census, DANE has made numerous efforts to collect disaggregated demographic information through an "ongoing ethnic identification updating" process.[31]  The State also mentions the existence of three follow-up initiatives to obtain qualitative and quantitative information on the situation of Afro-Colombians, which include a study sponsored by the Government of Colombia and the Inter-American Development Bank entitled "Sociodemographic Study of the Afro-Colombian Population", which included a review of the socioeconomic and sociodemographic situation of Afro-Colombians and indigenous peoples in areas predominantly inhabited by these groups and a project to measure access to public services by Afro-Colombians and indigenous peoples and its impact on poverty alleviation programs that target these communities.[32]  The Commission has not yet been informed of the results of these studies and projects.

25.              The Commission notes that the results of the census carried out in 2005 revealed differences in the social and economic conditions of Afro-Colombians vis-à-vis the national average and confirmed the social inequality endured by the Afro-Colombian population.  Indeed, the Department of Chocó, where the population is predominantly of African descent, has the highest average incidence of unmet basic needs of 79%.  It is followed by the Departments of Bolívar, Cauca and Nariño, with 46%, 46%, and 43%, respectively.[33]

26.              In view of the situation of inequality reflected by the results of the census and the challenges that still remain in terms of accurately determining the number of Afro-descendants and their needs, the Commission expresses its concern at the negative effects that any underestimate of this segment of the Colombian population would have on the design and implementation of public policies to cover their real needs with regard to employment, housing, health care, education, and other social services.  Identifying basic needs constitutes an essential tool for understanding and eradicating the structural inequalities that reflect ongoing racial discrimination.  The uncertainty as to the real size of the Afro-descendant population in Colombia perpetuates the pattern of historic neglect of this population.  At the same time, neither should it serve as a pretext to delay implementation of affirmative-action policies on behalf of this population.

C.           Measures adopted in favor of the recognition of the rights of Afro-Colombians

27.              The Constitution defines Colombia as a multi-ethnic and multicultural State that recognizes and protects ethnic and cultural diversity (Article 7), and promotes the adoption of measures "on behalf of groups that are marginalized or suffer discrimination" (Article 13).  The Constitution also provides that "the communal lands of ethnic groups… are inalienable, imprescriptible and non-attachable" (Article 63).  The transitional provisions of the Constitution provide for the adoption of "a law which grants to the black communities that have occupied undeveloped lands in the rural riparian areas alongside the rivers of the Pacific Basin, in conformity with their traditional systems of production, the right to hold in collective ownership those areas which the law designates” (Transitional Article 55).  In keeping with this transitional provision, Law 70 was adopted in 1993, representing one of the most important strides in the region in terms of specific legislation in favor of Afro-descendants.  With respect to the scope and implementation of this provision in the area of collective land titling, see Section III.C below.

28.              Furthermore, the Constitutional Court, created by the 1991 Constitution, has adopted a series of decisions on the situation of Afro-descendants in complaints alleging violation of their basic rights and the constitutionality of laws issued by the executive and legislative branches, in light of the Constitution and of international human rights and humanitarian law.  Concretely, in Case 005 of 2009, the Constitutional Court issued comprehensive orders to the national government to address the situation of the Afro-descendant population that had been displaced or was at risk of displacement.  In Judgment on Constitutionality C-461 of 2008, the Court found that the National Development Plan and any other programs that could affect Afro-descendant communities should be subject to prior consultation. In its Judgments on Relief [Sentencias de Tutela] T-586 of 2007, T-375 of 2006, and T-422 of 1996, the Constitutional Court addressed the question of access to education without discrimination for Afro-descendant persons and communities from the point of view of affirmative actions in the education system.  In Judgment on Relief T-1090 of 2005, the Court dealt with the matter of discrimination against an Afro-descendant individual who was refused access to a public facility. In Judgment on Relief T-955 of 2003, it ruled on forest development on the collectively owned territory of the Cacarica River communities and on the correlative duties of the authorities.  In Judgment on Constitutionality C-169 of 2001, the Court ruled on the creation of a special electoral district for Afro-descendant communities in the House of Representatives of the Colombian Congress.

29.              The Rapporteurship has received information about policy documents approved by the National Social and Economic Policy Council (CONPES) designed to foster social and cultural advancement and economic equality for Afro-Colombians.  These include CONPES Document 2589 "IDB - Plan Pacific Program: A New Sustainable Development Strategy for the Colombian Pacific Coast Region" (1992); CONPES Document 2892: Alto Patía Comprehensive Development Plan (1996); CONPES 2009 “Program of Support for Development and Ethnic Recognition for Black Communities” (1997); CONPES Document 3058 "National Government Strategy to Support Development in the Department of the San Andrés archipelago, Providencia and Santa Catalina"; CONPES Document 3169 "Policy for the Afro-Colombian Population" (2002); CONPES Document 3310 "Affirmative-Action Policy for the Black or Afro-Colombian Population" (2004);  CONPES Document 3180: "Program for Reconstruction and Sustainable Development of the Urabá Region in Antioquia and Choco, Bajo Atrato and Medio Atrato" (2002); CONPES Document 3410: "State Policy to Improve Living Standards for the Population of Buenaventura" (2006); and CONPES Document 3491: "State Policy for the Colombian Pacific Region" (2007).

30.              In addition, Article 57 of Law 70 provides for the approval of a specialized development plan for Afro-Colombian communities by the National Department of Planning (DNP).  This agency informed the Rapporteurship in the course of its visit that the necessary assessment by which to determine the objectives, obstacles, or limitations of such a plan had not been performed.  The organizations belonging to the Afro-descendant movement have criticized it for the implementation delays.[34]

31.              In its comments, the State mentioned that November 2007 saw the "launch of the preliminary version of the Long-Term Comprehensive Plan for Black or Afro-Colombian, Raizal and Palenquera Communities, which is in the process of dissemination with a view to the definitive adoption of the second phase.”[35]  The State also provided information about the creation by Decree 4181 of October 2007 of an “Interagency Committee for Advancement of the Afro-Colombian, Raizal and Palenquera”.[36]

32.              The Commission considers that the adoption of positive and specialized measures is a key factor in encouraging the full exercise of basic rights by Afro-Colombians.  In this regard, it draws attention to the need to implement special measures to ensure the adequate development and protection of certain racial groups or individuals belonging to them, for the purpose of guaranteeing them the full and equal enjoyment of human rights and fundamental freedoms.[37]

33.              Despite recognition of these rights in laws, jurisprudence, and development plans, during his visit, the Rapporteur received testimonies that suggest that racism, racial discrimination, and unequal treatment are practiced and tolerated in Colombian society.  This social acceptance fosters the persistence of racism at a structural and institutional level.  The Rapporteur noted in the course of his visit that, very often, despite acknowledging the impact of the profound social inequalities that afflict the Afro-Colombian population, the State officials and authorities interviewed did not recognize racial discrimination as a structural problem.  These practices help to render the situation of Afro-descendants in Colombia invisible.[38]