Joint letter calls government draft bill ‘unconstitutional’ and in violation of the Peace Accord, saying it threatens indigenous, afro-Colombian and rural communities’ rights
On 18 April 2017, a joint letter, signed by civil society organisations including: Colombian Commission of Jurists [i], Centro de Investigación y Educación Popular- Programa por la Paz (CINEP-PPP), Coordinación Etníca Nacional de Paz (CENPAZ), Corporación Yira Castro, three prominent members of the Colombian Congress and others[ii], was sent to the Follow up, Promotion and Verification Commission of the Implementation of the Final Agreement (CSIVI) [iii]This letter warns the CSIVI that a government draft bill[iv], entitled “[the law on] social aspects of the planning of property rights, rural lands and other provisions”[v] is in fact largely unconstitutional and furthermore contradicts the agreements made in Chapter One of the Peace Accord (Integrated Rural Reform -RRI) and Chapter Four (Solution to the Problem of Illicit Drugs). The letter highlights that the draft bill disregards the rights of rural communities in Colombia, including indigenous communities, peasant farmers, afro-Colombian communities and women.
The joint letter from these legal experts, points out several key issues in a thirteen-page in-depth analysis of the draft bill, highlighting that the proposed measures are in conflict with:
- existing laws (e.g. Law 160 of 1994) and constitutional rights protecting Colombia’s rural communities;
- the agreements reached in the Peace Accord (November 2016),
- the Constitutional rights of peasant farmers, women, afro-Colombian and indigenous communities.
Moreover, the authors of the letter argue that the draft bill proposes the adoption of measures unrelated to the Peace Accord through the “Fast Track” mechanism. The Fast Track mechanism is for enacting the agreements of the Peace Accord into law through a reduced number of congressional sessions (for more information see here)
Background: Provisions for rural reform in the he Peace Accord (November 2016)
At the root of the Colombian conflict was a dispute over land and the concentration of that land in the hands of a few. The massive forced displacement that has occurred, particularly since the 1990s with nearly 7 million people internally displaced worsening the land concentration. The Peace Accord’s Chapter 1 on Integrated Rural Reform (RRI) is based on a transformation of the countryside through: the creation of a Land Fund; the development of a Territorial Approach to Development Programs (PDETs) as mechanisms for targeting RRI in areas most affected by armed conflict and State abandonment; and the implementation of RRI National Plans on infrastructure, land adaptation issues and services for the rural population. Thus, seeking to address land concentration, equitable access to land and support for the peasant farmer economy.
The Land Fund (Fondo de Tierras)
The Land Fundwill distribute land to landless or land-poor peasant farmers, as well as, to rural communities most affected by poverty, neglect and armed conflict. Land allocated to the Fund will come from those who have improperly and unlawfully acquired it. The Accord also prioritises the rights of women peasant farmers to receive land and other forms of support related to the peasant farmer economy.
The idea of addressing land concentration and promoting access to land is not new: Article 64 of the 1991 Constitution enacted via Law 160 (1994) promotes access to land for the poorest of peasant farmers and landless agricultural workers by allowing them to work a small acreage of unoccupied state land known as baldios for subsistence farming. Land adjudicated to the land-poor farmers or landless agricultural workers under Law 160, helps to improve their quality of life. Law 160 (1994) therefore plays an important part in enshrining in law greater access to land and promotion of the campesino economy. Several members of Congress and Civil Society Organisations (CSOs) have warned that the draft bill, instead of developing the concepts in Law 160 in line with the agreements in the Peace Accord and in favour of peasant farmers and marginalised communities, would instead repeal Law 160 and replace it with a law that would promote a model of development that favours the interests of large-scale agroindustry at the expense of the peasant farmers (campesinos).
The letter highlights areas which conflict with the Peace Accord
Below are summerised some of the areas raised in the Joint Letter.
Access to Land
The importance of this draft bill, which claims to be the heart of the RRI is that it would replace Law 160 of 1994, as it proposes to repeal this Law in its entirety. The language used in the new draft bill refers to ‘beneficiaries’ instead of landless or land-poor peasant farmers, opening the way for others, such as major companies, to benefit from this change in law. Notably, the draft bill includes provisions for baldios to be awarded to companies planning to develop large-scale projects of ‘public interest’. This would pave the way to the attribution of land to extractive companies. It also plans to legalise the baldios that have been accumulated over the course of the conflict by companies; land which they were not entitled to own under the criteria of Law 160. See the report published by Oxfam on the accumulation of Baldios by multinational corporations.
Women’s rights are prioritised in the Peace Accord. However, the draft bill fails to include an effective gender focus, which is needed to overcome the structural barriers discriminating against women – something that has been agreed in the Peace Accord. The proposed draft legislation only refers in very general terms to the prioritisation of women in relation to access to land (Art. 4 point 5 and Art. 9), thus ignoring the majority of proposals in the Peace Accord and in previous legislation, such as the Rural Women’s law 731 (2002) and Law 1753 (2015), which are aimed at eliminating these barriers. The draft bill also fails to propose concrete mechanisms to implement greater access to land for women, which are fundamental to putting the gender commitments into practice.
Ethnic Rights to Prior Consultation
This said, the draft bill it ignores the prior consultation established as a safeguard in the ethnic chapter of the Peace Accord.[viii] It does not envisage a clear route for the participation of indigenous, Roma, Afro-Colombian, Raizales and Palenqueros peoples in RRI, violates territorial autonomy and the need for the participation of territorial entities in the definition of land use issues.
A further, more general issue raised in the joint letter is that the fast track mechanism is a temporary measure granted in extraordinary conditions to the Congress in order to rapidly enact the Peace Accord into law. It was never intended for, nor should it be used to enact, any other changes into law. Therefore, the joint letter insists that the national government only introduces bills which strictly adhere to the agreements in the Peace Accord, and which respect the general principles of the agreements and the Constitution. They further urge the FARC and the Government to take account of, and operate within, the existing legal framework.
On 5 May, the CSIVI released a statement indicating that the government draft bill was currently being debated within the CSIVI and that no decision had yet been made regarding its ratification. The statement added that the FARC-EP had also presented a document to the CSIVI concerning rural reform, entitled “Proposed decree for the Democratisation of Access and Adequate Use of Land” (Proyecto de Decreto Ley para la Democratización del Acceso y Uso Adecuado de la Tierra). The CSIVI’s statement concluded that it will consider both the government draft bill and the FARC-EP document to conduct a “comparative analysis” of both texts and “reach a joint proposal”.
You can access the full letter in Spanish here
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[i] The Colombian Commission of Jurists is an NGO that enjoys a consultative status at the UN, it is a branch of the International Commission of Jurists (based in Geneva), and of the Andean Commission of Jurists (based in Lima).
[ii] The letter was by the Colombian Commission of Jurists together with the members of parliament Iván Cepeda, Alberto Castilla, Ángela María Robledo, Alirio Uribe and Victor Correa, FENSUAGRO, the Coordinación étnica nacional de pax – CENPAZ -, the Grupo Género en la paz, the Cinep-PPP, the Grupo Semillas, and the Corporación Yira Castro.
[iii] Comisión de Seguimiento, Impulso Verificación a la Implementación del Acuerdo Final –CSIVI
[iv] The draft bill is called “Law on social aspects of the planning of property rights, rural lands and other provisions” ( Ley “Por la cual se adoptan disposiciones de Ordenamiento Social de la Propiedad y Tierras Rurales y se dictan otras disposiciones”), accessible on this page: http://www.verdadabierta.com/procesos-de-paz/farc/6611-el-proyecto-que-ataca-el-alma-de-la-reforma-agraria-integral
[v] This is an unofficial translation.
[viii] Law 160 (1994) includes chapters that refer to Indigenous Territories; there are proposals to erase all or major parts of these chapters and reformulate these elements in the new draft bill. To uphold ILO Convention 169 and Indigenous Peoples’ constitutional rights regarding their territories, the draft bill must first be consulted with the Colombian Indigenous Peoples.