Direct Request (CEACR) - adopted 2020, published 109th ILC session (2021)

Indigenous and Tribal Peoples Convention, 1989 (No. 169) - Guatemala (Ratification: 1996)

Other comments on C169

Observation

Direct Request

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The Committee takes note of the supplementary information provided by the Government in light of the decision adopted by the Governing Body at its 338th Session (June 2020). The Committee proceeded with the examination of the application of the Convention on the basis of the supplementary information received from the Government and the social partners this year, as well as on the basis of the information at its disposal in 2019.

Article 1 of the Convention. Identification of, and socioeconomic indicators for, the peoples covered by the Convention. In its previous comments, the Committee noted the holding of the Twelfth Population Census in 2018, which included questions related to ethnic self-identification and for which the Government carried out an awareness-raising campaign. The Committee notes that according to the results of the population census, out of a population of 14,902,286 inhabitants, 6,202,503 persons belong to the Maya people; 19,529 to the Garífuna people; 264,167 to the Xinca people, and 27,647 considered themselves creole or of mixed African descent. However, the census does not provide statistical information on the socio-economic situation of the various peoples covered by the Convention. The Committee notes that in its supplementary information the Government refers to various initiatives to improve the information and the compilation of statistical data identifying the indigenous population. Among these initiatives, the Committee notes the preparation of the manual on the inclusion of the right to self-identification in official statistics aimed at contributing to the production of official statistics that make indigenous peoples visible through the application of the right to self-identification in data compilation tools (census, household surveys and administrative records). The Government indicates in this respect that it is necessary to disseminate and implement the manual.

The Committee notes the data from the 2018 population census on the peoples covered by the Convention and welcomes the measures taken by the Government for the compilation of up-to-date socio-economic statistics on the indigenous population. In this connection, and recalling its general observation of 2018, the Committee encourages the Government to continue its efforts for the collection of data on the socio-economic conditions of the peoples covered by the Convention, including their access to the internet, with a view to the design of effective public policies and the monitoring of their implementation. The Committee requests the Government to provide information on the progress achieved in this respect and to provide the statistics compiled.

Population of African descent. The Committee notes the concerns expressed in the 2019 concluding observations of the United Nations Committee on the Elimination of Racial Discrimination (CERD) at the lack of sufficient information about how the categories used in the census should be applied, which could hamper the self-identification of persons of African descent and other ethnic groups (CERD/C/GTM/CO/16-17). The Committee requests the Government to provide specific information on the location of peoples of African descent covered by the Convention, including examples of public policies specifically directed at that group.

Article 3. Prevention measures and awareness-raising to combat discrimination. With reference to its previous comments on the action to intensify prevention and combat discrimination against indigenous peoples, the Committee notes the detailed information provided by the Government on the action taken by the Presidential Commission against Discrimination and Racism (CODISRA) between 2018 and 2020. This action includes training and systematic capacity building for public employees dealing with indigenous peoples’ rights; activities to promote the rights of indigenous women with the participation of the gender units of the executive authorities and organizations of indigenous women; the campaign to promote a culture of denouncing the crime of discrimination, including the production of materials in 25 indigenous languages; and support and advice on an individual and collective basis in cases of discrimination and racism against indigenous peoples. In addition, the Committee notes that CODISRA formulated recommendations for the inclusion of relevant cultural factors in the COVID-19 Emergency Plan.

The Committee notes that the Autonomous Popular Trade Union Movement and Global Unions of Guatemala indicate in their observations that indigenous candidates for political posts have been victims of discrimination on social media. The Committee also observes that CERD, in its 2019 concluding observations, expressed concern that the CODISRA and the Office of the Defender of Indigenous Women’s Rights are unable to discharge their mandates effectively owing to a lack of resources and capacity, and also because of the inadequate participation of indigenous peoples and persons of African descent in these institutions (CERD/C/GTM/CO/16-17). While taking due note of the efforts made by the Government to carry out campaigns and activities for the prevention of acts of discrimination against indigenous peoples, the Committee requests the Government to continue providing information on the measures adopted to promote respect for the culture of indigenous at the political, social and economic levels in the country, indicating how indigenous women and men participate in the design, implementation and subsequent evaluation of those measures. The Committee also requests the Government to provide information on measures adopted to ensure sufficient resources for and to strengthen the capacities of the CODISRA and the Office of the Defender of Indigenous Women’s Rights.

Articles 3 and 30. Human rights and means of communication. In its previous comments, the Committee noted from the observations of the Autonomous Popular Trade Union Movement and Global Unions of Guatemala the references to acts of repression against indigenous peoples’ means of communication, in particular community radio broadcasting, and requested the Government to provide information in that connection. The Committee notes that the Autonomous Popular Trade Union Movement and Global Unions of Guatemala, in their 2019 observations, indicate that no progress has been made in the legal recognition of community broadcasting and permits for the use of frequencies, and that communicators and community broadcasters continue to be prosecuted. In reply to these observations, the Government indicates that the draft Community Communication Media Act is awaiting its third reading in Congress. The Committee requests the Government to provide information on the measures taken to investigate the acts of persecution against indigenous communicators and their results. It also requests it to provide information on the adoption process of the Community Communication Media Act, with an indication of how the indigenous peoples have been consulted in this regard.

The Committee notes that since 2017 the Presidential Secretariat for Social Communication has helped to disseminate all material related to the strengthening, knowledge, respect and recognition of indigenous peoples, in Maya languages and in Spanish. It also notes that the Guatemalan Academy of Maya Languages disseminates and promotes traditional culture and languages through such media as radio and television advertising, social networks and video tutorials. The Committee requests the Government to provide more detailed information on the measures adopted to promote the existence of communication media that are in harmony with the culture and traditions of indigenous peoples and promote respect for their human rights, ensuring an appropriate environment for the functioning of such media.

Article 6. Political participation. The Committee notes that the Autonomous Popular Trade Union Movement and Global Unions of Guatemala refer to the low level of political participation by indigenous peoples, specifying that for the period from 2016 to 2020 indigenous peoples’ representation in Congress stood at 11.39 per cent. In that regard, the Government indicates that, while training materials provided to voting officers are not translated into indigenous languages, it urges the departmental electoral boards to employ temporary trainers who speak the languages of their departments. It adds that although indigenous representation is still too low, there has been a significant increase in indigenous representation in Congress. The Committee requests the Government to continue providing information on increasing and strengthening indigenous peoples’ political participation, at least to the same extent as other sectors of the population, and at all levels, in decision-making in elected institutions and administrative and other entities responsible for policies and programmes that concern them. The Committee also requests the Government to indicate the measures adopted to ensure the cultural and linguistic relevance of the activities undertaken to communicate information on electoral processes and to promote political participation.

Articles 7 and 15. Cooperation in assessing environmental impact. Natural resources. The Committee notes, from the observations of the Autonomous Popular Trade Union Movement and Global Unions of Guatemala, their concerns at the excessive logging and the disappearance of the San Simón river, the Sepalau lagoons, the Aplanada Coratzul and the Limón river, which supply various indigenous communities, due to the monoculture of the African palm. The Government indicates that the Ministry of the Environment and Natural Resources has begun investigations and carried out inspections, which have in some cases found that the droughts are due to natural causes. The Government provides information on some of the action taken by the Ministry of the Environment and Natural Resources in compliance with the Constitutional Court ruling on the Escobal mining project (San Rafael mine) (case No. 4785-2017). The Court ordered the review of the area affected by the project, which had been approved in December 2018, having elicited no reaction from any of the parties notified; it also ordered periodic monitoring of the project’s installations to avoid contaminating waterways during the project’s operation. The Committee requests the Government to indicate how cooperation is in practice ensured with the peoples concerned to assess the social, spiritual, cultural and environmental impact of planned development activities in lands occupied or otherwise used by indigenous peoples, including information on the measures adopted to guarantee the rights of these peoples to the natural resources pertaining to their lands.

Articles 8 and 12 Customary law and access to justice. In its previous comments, the Committee noted the Public Prosecutor’s Strategic Plan 2015–2019, which aimed to coordinate cases brought before the indigenous and the formal justice system. It requested the Government to continue taking measures to promote coordination and communication mechanisms between justice institutions and indigenous authorities so that they take account of the customary law of the indigenous peoples. With regard to access to justice, the Committee noted the measures adopted by the Government to provide culturally and linguistically relevant assistance during legal proceedings involving indigenous peoples. It noted the establishment of the offices for the defence of indigenous rights and encouraged the Government to continue adopting measures to overcome the ongoing difficulties in access to justice for indigenous peoples.

The Committee notes the Policy on Indigenous Peoples’ Access to Justice (PAIOJ) which the Government indicates is intended to give effect to the national and international agreements on human rights and the rights of indigenous peoples, and to the commitments made under the Peace Agreements. The PAIOJ promotes forum and the establishment of jurisdictional bodies to deal with indigenous matters, thereby protecting the autonomy of indigenous peoples and recognizing their authorities, facilitating policies that coordinate the judicial system with the indigenous customary system, and protecting the inherent right of participation by indigenous peoples in policies on judicial matters. The Government provides information on meetings between the indigenous authorities and actors in the justice system with a view to increasing coordination between ordinary justice and indigenous justice. It also includes a copy of the Supreme Court ruling (Criminal cassation decision No. 01004-2012-01848) in which the Court invokes Article 9 of the Convention in affirming that the State justice system must ensure that indigenous people are prosecuted in accordance with their own culture.

The Government indicates that the Office of the Public Prosecutor is administering the Policy on Indigenous Peoples’ Access 2017-2025, which seeks to adopt a comprehensive approach to transforming the services provided to indigenous peoples, including to indigenous women. The policy covers geographical access to the services of the Office of the Public Prosecutor, that are culturally and linguistically appropriate for indigenous peoples, and seeks to encourage persons belonging to indigenous peoples to enter the professional career system of that institution. The Government reports that in 2018 the Criminal Public Defence Institute appointed 263 indigenous women trade unionists as public defenders. The Committee notes the concern expressed by CERD in its 2019 concluding observations on Guatemala that, despite the Government’s efforts to ensure indigenous peoples’ access to justice, discrimination still persists, and the lack of cultural and linguistic relevance in the justice system continue to prevent effective access to justice for indigenous peoples, especially women (CERD/C/GTM/CO/16-17). In the written information submitted in 2019 to the Committee on the Application of Standards of the International Labour Conference, the Government indicated that coordination agreements had been signed by the Office of the Defender of Indigenous Women, the CODISRA and the Tz’ununija Indigenous Women’s Movement in order to strengthen coordination between those institutions.

The Committee requests the Government to continue taking measures to ensure the recognition of customary indigenous law and its application, in coordination with the national justice system, in cases that concern indigenous peoples, and to provide information in this regard. The Committee requests the Government to provide information on the implementation of the policy on indigenous people’s access to the office of the Public Prosecutor, as well as on measures adopted to eliminate cultural and linguistic barriers and the discrimination that indigenous peoples, especially women, continue to face in accessing justice.

Parts III and IV. Conditions of work and employment. Vocational training. In its previous comments, the Committee requested the Government to report on the measures adopted to strengthen the labour inspectorate in the agricultural sector, in particular in the areas in which indigenous people are occupied, taking account of the information provided by the Autonomous Popular Trade Union Movement and Global Unions of Guatemala concerning the high level of violations of labour rights in those rural areas. The Committee notes that, in their 2019 observations, the trade unions again report that indigenous persons receive significantly lower wages than non-indigenous persons. It also notes the concerns expressed by CERD in its 2019 concluding observations at information revealing the precarious working conditions faced by indigenous peoples in the agriculture sector and that they are the victims of labour exploitation or forced labour (CERD/C/GTM/CO/16-17).

The Government reports the publication of the single protocol on procedures for the labour inspection system, which incorporates the Convention within its legal framework, as well as the publication of the procedure for the inspection and monitoring of the rights of agricultural workers. Moreover, the Government indicates that in 2018 the Technical Institute for training and productivity provided employment training for a total of 27,594 indigenous persons (14,415 men and 13,179 women) from the Maya, Xinca and Garífuna peoples. It adds that, between 2013 and 2018 a total of 50,051 indigenous persons nationwide in search of work registered with the Electronic Labour Exchange, and that a total of 3,708 persons have been placed in jobs. According to the supplementary information provided by the Government in 2020, action has been taken, within the framework of the national policy on decent work, to implement a programme of technical skills training in rural areas through the provision of grants to vulnerable people. Of the 2,744 participants in technical courses, 1,147 were from the Maya, 15 from the Xinca and five from the Garífuna peoples

In the light of the information on violations of the labour rights of indigenous workers in the agricultural sector, the Committee recalls the fundamental role of the labour inspectorate in preventing violations of workers’ rights. The Committee therefore once again requests the Government to provide information on the measures taken to ensure that inspections are undertaken in the agricultural areas with the highest concentration of indigenous workers, indicating the number of inspectors assigned, the geographical zones covered, infringements detected and the steps taken to restore the rights of the indigenous workers victims of the violations. The Committee also requests the Government to adopt measures aimed at ensuring that indigenous rural workers are better informed of their labour rights, and to provide information in that connection. The Committee also requests the Government to provide more specific information on the vocational training programmes provided for indigenous persons, and their results in terms of access to skilled jobs, also indicating how the indigenous peoples participate in the organization and operation of the programmes and how their economic, social and cultural context is taken into account.

Articles 24 and 25. Health and social security. In earlier comments, the Committee noted the National Policy on Midwives from the Four Peoples of Guatemala (2015-2025) as well as the national strategy to prevent chronic malnutrition. It encouraged the Government to continue to take the necessary measures to make appropriate health services available to indigenous peoples. The Government indicates that, under the National Policy on Midwives, workshops have been held on guidelines on issuing documents to midwives. The Committee notes that the Autonomous Popular Trade Union Movement and Global Unions of Guatemala indicate that the Supreme Court has granted amparo for midwives who have been victims of physical or psychological violence. In this regard, the Government indicates that the Ministry of Public Health and Social Assistance has been instructed to prepare a provisional budget for the acquisition of supplies for midwives, and to take the corrective measures required. The Committee notes that in its 2019 concluding observations regarding Guatemala, CERD expressed concern at the lack of cultural and linguistic relevance in the sexual and reproductive health services (document CERD/C/GTM/CO/16-17). The Committee requests the Government to take the necessary measures to investigate cases of violence against indigenous midwives, and against indigenous women receiving gynaecological care, and to provide information on that subject. The Committee also requests the Government to report on progress in implementing the national policy on midwives, indicating what mechanisms have been put in place to ensure coordination between the public health system and the work of indigenous midwives, and the measures adopted to ensure the cultural and linguistic relevance of reproductive health services to indigenous women and men. The Committee requests the Government to continue providing information on the results of the measures adopted to combat chronic malnutrition in indigenous populations and on the number of indigenous persons who are covered by social security schemes.

Article 27. Education. In its previous comments, the Committee encouraged the Government to continue making efforts to implement the bilingual education policy and requested it to continue to provide statistical information in that regard. The Committee notes the statistical information provided by the Government on the number of pupils registered in pre-primary, primary and secondary education by department, and on indigenous students attending the various universities in the country. Between 2010 and 2017, there were 149,900 Maya students, 1,104 Xinca students and 981 Garífuna students registered in San Carlos University of Guatemala. The Committee requests the Government to provide specific information on the measures adopted to guarantee access to bilingual and intercultural education for indigenous children and young persons in cooperation with indigenous peoples, and on their results (enrolment, attendance and school dropout rates), including information on measures to promote access to and use of the internet in schools located in areas inhabited by indigenous peoples.