HUMAN RIGHTS, JUSTICE, AND NASA INDIGENOUS WOMEN

This research was developed in the Department of Cauca, located to the South West of Colombia, in it settle nine native indigenous groups, among them the Nasa indigenous community to which reference will be made.

By:

Luz Mery López Ayala – William Rodríguez Quinayás

Journalists and researchers

Translated by: William Rodríguez Quinayás

Colombia, after being governed 105 years by the Constitution of Nuñez, changed its Constitution in 1991. This major reform included the recognition of ethnic diversity in the country.

Article 1 of the Colombia’s constituion defined that "Colombia is a social State of law, organized as a unitary Republic, decentralized, with autonomy of its territorial entities, democratic, participatory and pluralist, founded on respect for human dignity, work and solidarity of the people who make it and the prevalence of the general interest", and made explicit in Article 7 "the State recognizes and protects the ethnic and cultural of the Colombian national diversity"; at the same time, the Art 246 of the Constitution established "authorities of the indigenous peoples may exercise judicial functions within its territory, in accordance with its own rules and procedures, provided that they are not contrary to the Constitution and laws of the Republic." The law shall establish the forms of coordination of this special jurisdiction with the national judicial system.”

The above raises that indigenous communities can also pursue, investigate and run penalties in their territories. The question is what is meant by Justice?, what about access to justice from the Nasa worldview and of course from the Western gaze?

Facing these questions exist a tension between the legitimate and legal, based on the fact that the ordinary justice is a written culture and the indigenous justice is an oral tradition; therefore, subtract validity to the indigenous justice would ignore the struggle for autonomy and the exercise of its Government, something that the Constitutional Court has said  "maximum autonomy possible and minimizing restrictions", this does not mean  those who represent the State should ignore their responsibility as officials, assuming an attitude of indifference to the diverse situations that arise in the indigenous communities, however, this is not a justification for disrespecting and ignoring the ways of administering justice from indigenous communities.

It should be noted that for the special indigenous justice as well as for the ordinary justice, both perceive different purposes with respect to the value that each one provide its justice.

The special indigenous jurisdiction understands justice like the restoration of harmony and balance of the subject with the environment and the community of which he is part, this indicates that it is a kind of restorative justice; While for the national judiciary justice is the faculty that has the State to regulate the socially incorrect behaviour of the population, unlike the indigenous jurisdiction, it is punitive or punishing.

On the other hand, the access to justice from the national judicial system is understood as the possibility of all people residing in Colombia to be on equal terms without restriction of caste, gender, or nationality to advocated for the integrity of the rule of law and the restoration of their rights and legitimate interests. However, indigenous jurisdiction inferred that access to justice has to inform traditional authorities about the situation that is generating imbalance within its environment.

Starting from these concepts, it will be shown how the regular judicial system and the special indigenous jurisdiction Nasa have been operating.

Article 246 of the political Charter proposes the establishment of forms of coordination between the two judicial systems with the aim of providing support to the indigenous jurisdiction. In the making of this article in the Constitution of 1991, it was knew that indigenous people did not have the means to investigate, pursue and implement penalties. Since cooperation between ordinary justice and indigenous jurisdiction has been limited only to the provision of detaining indigenous perpetrators omitting their duty as authority at the service of indigenous people, providing technical and evidential support for the resolution of the processes carried out in indigenous territories.

The reasons given for not providing such assistance are summarized in the following way: lack of security, work overload, lack of technical resources to get to the site (there is no vehicle, there is no fuel) and finally the absence of a court order, that it is the main excuse to avoid accompaniment. The above cannot be a pretext to disregard the obligations as officials and ignore the relevance of indigenous authorities, who in turn have shown interest to make available to ordinary justice the indigenous guard to secure access to the territories.

The absence of cooperation has raised tension between the two systems where there is no mutual respect and they do not seem like pairs, but it presents a vertical relationship in which neither of them wants to be subject to the other; therefore, this is a drawback to establish an articulation.

Difficulties in the access to the ordinary justice

Throughout the 23 years of existence of the current Colombian Constitution, several difficulties have arisen that have hampered the free access to justice by Nasa women in both legal systems.

Despite the fact that indigenous people possess their own jurisdiction, they also have the option of choose which jurisdiction takes their cases. In the case of women, if they decided to choose the ordinary justice, they are usually faced with a series of difficulties presented by the ordinary justice.

Some of the difficulties included: congestion in the offices, problems of recruitment of personnel for offices of decongestion, subjectivities of the operators of justice, lack of knowledge of indigenous jurisdiction, apparent unknowledge of competencies, and lack of respect for the indigenous jurisdiction.

The situations referred above are interrelated. First, Colombian’s justice is a congested justice with lack of sufficient personnel, which has hampered effective access to justice, denoting that it is not an effective system. In many cases, the terms expire, the processes are archived and remain unpunished.

In addition, it must be said that when people access the ordinary justice, they must confront the subjectivity  by operators of justice; whom depending on their mood sent cases to the Cabildos, something which should only occured  when there is request, otherwise it must follow its course in the ordinary justice. Currently many operators of Justice take refuge in what was said by the Superior Council of the Judiciary "in doubt of competences, it is returned;" however, that should not be.

In terms of apparent ignorance of competencies about indigenous jurisdiction, operators covered in this argument and do not comply fully with their responsibilities, which calls into question the skill and knowledge of officials working in the judicial system.

When the cases are in the ordinary justice, there are another type of impediments that affect the victim. One of the main factors faced by Nasa women is racism by officials, who give a derogatory treatment to Indigenous women for their personal presentation and lack of communication in Spanish. Second, the carrying out of procedures generally incurred in the re-victimization of women, since there is not a differential treatment (ethnic, gender). Finally, this is a centralized justice and many women live in distant places from the specialized circuit where the case is underway. They cannot moved regularly or pay a lawyer who can check the status of the case, which many times results in the expiration of terms, file of processes leading to impunity.

Successes in the ordinary justice

Although there are flaws in the system, there are also favorable practices within the judicial system, among them is that the State promotes training in differential attention (ethnic and gender). There are also environmentally friendly officials of the rule which comply fully with its obligations without taking into account social condition, economic, ethnic and gender to provide adequate care. 

Good practices set precedents for future situations where breaking the rule has implications for the perpetrator and a restoration of rights for the victim, leaving a positive message of justice. On the contrary, incurring faults mentioned above leaves a negative message in which women are helpless and demoralized, promoting the no denoucing against the violence of which they are victims

Difficulties in the access to indigenous justice

Since the law 89 of 1890 some guidelines are promulgated regarding the form of administration in indigenous peoples, but the 1991 Constitution recognized the principle of ethnic and cultural diversity in Colombia. Since then, this jurisdiction has been in a process of construction at the time of administering justice; however, inexperience contrasted with the cultural load has incised so that the access to justice by women is not equitable and resolutions against such failures does not satisfy them or repair the victims, but conversely the action is justified and the victim are punished. This leads to think that it is necessary to reassess the ways in which processes are evaluted and the revaluation of the fault will be done according to the level of involvement of the victim.

The foregoing damages directly the collective because it generates disharmony, due to the fact that there is disagreement within the community. This situation breaks down and the message emitted to the environment is that of a permissive justice against some issues. The reparation is subject to who impart justice, to the level of importance of who commits the fault, the level of interest and priority of the failure for the authorities and finally, if it is a man or a woman who informs the event.

When one speaks of access to justice by Nasa women there are a number of flaws that discredit and re victimize them when they have denounced to the authorities that they have been victims of some form of violence, usually their word is put into question, also their behavior and from hence is justified why they have been abused, for that reason they are forced to retract or not report.

In the case of sexual violence in the Cauca Nasa community, this is restricted to the carnal access violent, ignoring other factors which from the West are recognized as part of sexual abuse, so that if there is no material proof that demonstrates it, it is not recognized as a violation.

Additionally, when they are attended there is not a differential attention (gender) route and if she is not satisfied with the resolution given by the authorities, there is not a second instance where to appeal that decision.

This situation instead of recognizing them as victims designates them as guilty of the fact, because the circumstantial factors are most important before the victimizing fact, which favours impunity to the interior of the indigenous communities

Finally, it can be seen that there is not a coherence in the speech when for certain topics there is clarity on the rights, but when they make reference to gender issues become a discourse of the West, showing what happens to women is not a priority for Nasa indigenous communities and their authorities and this is evident when not all Cabildos are joining efforts that tended to protected and trained women. On the other hand, these areas are seen as a waste of time or as scenarios for gossip or are associated with the division within the organization rather than for its strengthening. Therefore, programmes orinted for women lack sufficient resources to arrive scattered areas, in spite of the request made by the women of these regions.

Successes in the special indigenous jurisdiction

It is necessary to clarify that when one speaks of special indigenous jurisdiction, it does not speak of a single, but it refers to several justices, since each indigenous group has their own; each village is divided into cabildos and these have autonomy to impart justice in each zone, in conclusión, there are multiple ways to provide it. On the basis of the above it should be noted that within the Nasa community there are positive practices such as knowledge of its limits as a special indigenous jurisdiction -for example, when cases are presented with minors that only the ICBF has authority to resolve - also in the indigenous jurisdiction does not exist the expiration of terms giving the possibility to resume processes when these have been suspended by coercion to victims or other reasons.

In addition, women who have positioned themselves due to leadership abilities and have gone through processes of awareness-raising and empowerment as women, they have managed to exercise justice from a balanced position when administering justice.

Finally, it is find the woman program – ACIN, which provides spaces for training women in different aspects such as: awareness of being a woman, its role in the community, political empowerment, and economic autonomy. On the other hand they have assistance to women victims, which consists of giving psycho-legal, and psycho-cultural support. This included giving them assistance since the moment they report the fact, follow-up to the sanction and the emotional and spiritual restoration that allow women to return to community life.

What violence do Nasa women experience in Cauca?

To start the theme of violence against women, it is necessary to clarify that there are visible and invisible violence. This latest Pierre Bourdieu referred to when talking about symbolic violence. This violence is indirect and it is exercised by a dominator towards its dominated, those who are not aware of such violence against themselves and it could be argued that they are complicit of the same. It is a social construction that reproduce social roles, status, gender, social position which through power is legitimized of some over others through time.

Now, referring to violence that occur within the Nasa community in Cauca  the followings are identified: physical, sexual, psychological, economic and equity violence, which leads to the infringement of which from the West is conceived as rights, however, this does not mean that the perpetrators are only indigenous.

In the Nasa community, the concept of right does not exist, but it is interpreted as good life, balance and harmony with the rest of the beings that inhabit the territory. It can also be conceived as a system of obligations and duties with which the difficulties can be solved.

In that sense, recurring situations of which Nasa women are victims have shown: infringement to their sexual and reproductive rights, land rights, right to decent work, right to free movement, right to life, ethnic right and right to free expression.

It is important to say that when a woman is a victim of sexual violence and become pregnant, she is coerced to have the baby. This situation has been backed by the moral discourse product of evangelization and forgetting the cleansing of the body as an ancestral practice facing this type of situation.

On the other hand, taking into account the fundamental role that women have played in the process of repossessing the land, they have been underestimated in their participation in the different spaces of which are part. That is how women within the Nasa community are not awarded lands due to the fact that these have always been assigned to the male head of the household, ignoring their administrative capabilities, earth work, that women are heads of households, widows, single women, who need to work to solve their personal needs and those who are in charge.

This situation has promoted economic and patrimonial violence, since women have not been allowed to have economic autonomy because many of them still depend on male approval to sell their products of the "tulpa"  or their  handicrafts; in addition, some who are involved in productive projects are restricted from free participation in the spaces designed to market their products. Women are also sometimes physically abused by their partners for not bringing the expected money.

However, this kind of behaviour are not incidental within the Nasa community in Cauca, since these have been supported by the either the Catholic or Protestant evangelization, as their speeches have established an ought to be for the woman, in which she should be subject to her husband, showing an attitude of submission without complaint because it reminds her the way she met him and for that reason she must cope the violence. This has popularized the saying "Let him stick for that is husband."

Additionally, in the protestant practices is require for the practitioners to distance themselves from indigenous practices and indigenous movement because it is pagan. If in a couple, one of the two is not a practitioner of the same faith, they are asked to separate and join a member of the same church.

At the same time, women who choose to work in domestic service either inside or outside of their territory, are forced to receive from their employers what they want to give them for their work, taking advantage of the need of these women, who  prefer to take anything rathern tan nothing. They do not enjoy the basic guarantees benefits stated by law such as social security or a living wage, finding cases of women who receive five thousand pesos for working a whole day.

Also, as a result of the armed conflict lived in Colombia, Nasa women have seen their lives being affected due to the constant violations to international humanitarian law, which can be seen in threats to women who are leaders, forced services such as providing accommodation, food and clean clothing to legal and ilegal groups, sexual violence accompanied by coercion to free movement within the territory, preventing women to denounce the abuses they have experienced by legal and illegal armed groups.

Additionally, many Nasa women have been socially sanctioned within their community by deciding to acknowledge or report when they or their children have been victims of sexual violence, putting into question the voice of these women by the authorities and replicated in their community, even more if it is a leader who is involved in the fact.

Based on this type of situation it could be inferred that when a woman makes public the fact, there are consequences for them and their families. This only results in issuing a message to the community about future cases, which can influence other women to no report for fear of this kind of sanctions, favouring impunity.

How is the participation of women

The participation of women in the Nasa communities has evolved in the last two decades. Twenty years ago it was almost unthinkable to believe that they could become sheriffs, captains, governors or get to the further counseling of Consejo Regional Indigena del Cauca or become coordinators of the several programs in the indigenous movement.

It must be said that if women have begun to take part in the spaces of participation, this does not mean that they are taken into account for decisions. Women’s participation has been reduced to aspects of logistics such as cleaning, organizing, cooking, and loading pots. In other words, provide everything and leave males the decisión making process.

In addition,  the participation of those who have managed to transcend to political spaces, their participation has been limited to "women's issues", quoting Omar Rincón who affirm that speaking about women issues is not to speak of beauty, health, fashion, home, education or crafts... It is to think about its visibility from a political perspective where they have historically been hidden or sub represented... In this regard, it can be found that the participation of Nasa women in Cauca has been forwarded in many cases to Programa Mujer y Familia - ACIN-, Programa Mujer y Familia CRIC, Projecto Educativo Communitario – PEC, etc.

However, on occasions when women have made part of negotiation tables with the Government, this has been seen with good eyes because they have been characterized as facilitators and fair. Although, they have also stood by its holistic vision against the effects that can bring certain decisions for their community as opposed to males, for example the mining concessions.

This has been the result of the struggle of women to influence and take part in the areas of decision within the Organization. These leaders have emerged from the base in the community work, from the accompaniment of other organizations in the formation, strengthening and awareness that it has re-evaluated the social role of women. In addition, there have been women who have left the territory to study at universities and for later returning to their community

In turn, this has not meant that all women who have been formed and have come to occupy important positions within the indigenous organization have brought into discussion the issue of gender, also because sometimes they have come to these spaces supported by males, in that sense, it can demonstrate a similar situation presented in the West when some women have been elected to public offices. This has not necessarily implicated that they work for the defence of the rights of women. Also when women decide to take responsibility in the areas of participation, regularly indigenous women are alibis due to the commitments that have been historically assigned as wives, mothers, daughters, etc. A similar situation lived by women in the West as when they work outside of the home and at the end of the day they must continue with household chores.

However, the work done by the organization of women in the interior of the indigenous communities, has affected the visibility and awareness of violence against women.

Today it is not so complex to reach these areas as in yesteryear. The difficulty as implied by an indigenous is staying and how to stay.

Traditions and customs are poorly understood?

When speaking about usages and customs, this can be defined as everything that is done to live in community, and everything that contributes to live in common. This is how each community sets its own dynamics where the group built their own relating to what is socially seen as harmony or disharmony. Customs vary according to the time, context and community; for this reason, when it talks about the system of penalties or classification of the offenses, these may vary even though they belong to the same ethnic group.

Also, when referring to customs it must not necessarily be associated with ancestral practices within communities, since many of these have been taken from other cultures, for example: the institution of the Cabildo, the Resguardo, community judging system, clamping device, the whips are mechanisms inherited from the Spaniards, similarly, the fact that they are divided into Resguardos is a division that emerged in the colony and was ratified in the Republican period. Hence, for the Nasa the standard is under permanent construction. This is ratified by law 120/1991 when it proposed that communities have the right to self provision, in other words, to create law.

On many occasions from the Western perspective, value judgments can be made by the ignorance of the uses and customs, but also in these cases, it may be hiding behind degrading practices within communities, up to the point of naturalization, in which no one puts into question these practices, there is then, where the symbolic violence is reflected.

Therefore, violence against women are not part of the uses and customs, situation which has been justified on many occasions by the ideological discourse of the Church when arises that women should be subject to the male and he has the right to correct them. According to the Alternate Governor of Resguardo La Gaitana Rosely Finscue, It has tended to label the Nasa communities as violent for its act of resistance in the defense of the territory.

Education or schooling?

There is a perception that if illiteracy rates are decreased in wome this will reduce the rates of violence against them. However, this condition does not apply in the case of males because if they are or are not literate, they have taken the violence as an element of control and coercion towards women. It should be noted that the above cannot be considered as a generality for all cases.

For this reason, it is essential to clarify that when one speaks of education, this not only concerns the system of schooling, which is limited to read, write, add and subtract. On the contrary, education must be understood holistically where converge the different interaction scenarios, in which a cultural transformation can be performed. That would mean a re-evaluation of the educational system, since this has been historically responsible for replicating the patriarchal system in tacit way.

The foregoing leads to consider that when one speaks of cultural transformation, the re-evaluation of the education system not only makes reference to indigenous communities. On the contrary, it calls to everyone without any distinction. Such a transformation would consist of an education for life where is posible to find elements for the good live. This would mean living in a harmoniously community where difference is respected.

In the case of indigenous communities, it could be thought the re-evaluation of education from the uses and customs at the time of raising boys and girls. This type of pilot experiences are not unknown to the Nasa people. An example of this can be seen at the Cabildo of KiteK Kiwe, where a possible transformation to achieve balance and harmony within their community is being thought.

For this reason, they have begun working towards that trasnformation. It is common to find that if in playground a child physically assaulted a girl or not allow her integration into some games, the child  goes through a call to attention where is clarified that his behavior is not appropriate. It is also specified that there is no distinction between what must be played by a boy or a girl because both have the same possibilities. Also young men have proposed from what is known in the West as new masculinities, which promote respect for women and punishment for any kind of offense against them, for this reason, women in the community carry a purple card and if they experience any kind of violence, they show the card as a sign of rejection to the offense.

Finally, in the indigenous communities, it is necessary that its members know both the special indigenous jurisdiction and the ordinary justice in order to have clarity at the time of issuing  and accessing justice.

How does Nasa special indigenous jurisdiction sanction?

On the basis of the fact that each Cabildo has autonomy to exercise justice in its Resguardo and there is not a rating scale unified for offences, sanctions or for the repair of the victims in the Nasa community, there are other factors that have an impact at the moment of administering justice such as the context and the uses and customs of the Resguardo which is inhabited.  This allow that the subjectivity and interests that exist in the situation of those who exercised justice prevails.

While it is true that there is not a definite scale for sanctions, a series of guidelines have been given to proceed when administering justice. It is like when put into knowledge domestic violence to the authorities, It is customary to call the couple and their families, including the extended family -It is taken into account in the same way as when asking to marry the woman -, for this Tewala[1] or spiritual guides are also invited, in order to looked for the root of the problem and apply the respective medicine with the goal of reaching harmonization.

However, If  the problem is repeated or there is no possibility of consensus, the separation is a decision of the couple or one of them.  When it is a unilateral decision, the person who request the separation lose his or her rights to the property acquired as a couple. This person does not have the right to anything material based, but only to child support if there are minors in the marriage. Acquired property then passed into the hands of children.

Nevertheless, when women are the ones imparting justice, and they have been part of processes relating women issues, if they are carrying out a separation, the distribution of goods are equally and the person who request separation is required to provide child support.

In regards to custody or parental authority, this issue relates directly to the Instituto Colombiano de Bienestar Familiar - ICBF on behalf of the State. The State may allow others to deal with issues relating health, education, and public services, but it can not assign the matters in which the rights of children and adolescents are affected, regardless of their ethnic origin.

For this reason, at the time of granting custody is verified who can guarantees a greater well-being for the free and safe development of the child, however, if the child has been victim of sexual abuse by one of the parents and even if that parent has more economic capacity, the contact is restricted inmediatly with the child.

In the case of other crimes there are other type of sanctions such as: community work (working the land, mandatory attendance at assemblies and marches),  a type of dungeon, the whip[2], the trap[3], banishment or estrangement, rituals of harmonization (bathing in the river, and diving into the lagoon) and imprisonment, being this one the most severe measure. In these cases, a community  assembly is called to decide what sanction should be given.

It is usual to hear that in indigenous communities the medicine is given as a form of sanction to the Indians, but referring to the medicine means the restoration of harmony and balance of the person  with his or her community. This is usually done through the whip or the trap. In the case of the whip, the lashes should be done with a level of force without being torture, but neither soft. If torture or softness in the lashes would occur, then the authority who applied the sancation would receives the lashes.

With regards to the rituals of harmonization, there are several ways for these to take place: preparation of drinks and the application of herbal baths or submerging in a lagoon below 0 degrees Celsius. This last one consists of immersing the person in the lagoon as long as possible, which according to indigenous people can bring a  spiritual transformation to the individual. After the submersion, the person coming out of the lagoon is stinged with nettle[4] to activate the vital functions.

It is worth mentioning that the rituals of harmonization are a process of multiple sessions that required a series of inputs. These inputs in fact must be assumed by the person being sanctioned or his or her family. Sometimes harmonization rituals are interrupted by lack of resources, leaving treatment unfinished, which according to Nasa people can bring inmbalance to the person and increase the possibilities of repeating the offence with more violence.

Common conflicts between ordinary justice and the special indigenous jurisdiction regarding the access to justice by Nasa women

Although it is true that the two jurisdictions differ in some aspects, they also converge in some unfortunate aspects to the detriment of women. Among them can be found that regardless of the justice system, both systems are permeated by a cultural burden that prevents an efficient, equitable and guarantor access to justice, in which prevails the subjectivity of those imparting justice, where  circumstantial factors predominate above the voice of women.

Spaces and processes of awareness of gender issues and violence against women are not taken with diligence and most of the time are not considered priorities. This means that at the moment to carry out procedures, these end up being re-victimization spaces for women, when that is not the obligation of those who impart justice.

None of the two systems has statistics that take into account the various acts of violence of which women are victims, which denotes an invisibility of these issues.

Besides the situations mentioned above, there is a mutual disrespect between jurisdictions by attempting to prevail, which only leads to impunity.

Coordination between Ordinary Justice and Indigenous Justice

To talk about articulation, It is necessary to say that this must be a two-way process. Ordinary justice can not ignore and avoid the special indigenous jurisdiction only because it has more years imparting justice. It is necessary to create a dialogue of knowledge between both justice systems. That could be the beginning to make an effective articulation.

First of all, it is significant to take into account the differential approach (gender). It is important to mention that at the time of dialogue about articulation between the State and indigenous communities, it is more tan neccesary that women are presentbecause they can make contributions about their particular needs, something that a Indian or Western male hardly could do.

Second, in terms of operation, it must require that the ordinary justice make available to the indigenous authorities everything concerning to technical assistance, because it would be almost improbable that each Cabildo had a body of research and forensic laboratory to carry out its processes, taking into account that some townships of the Department of Cauca do not even have these services and depend on other townships. For example the township of Morales (Cauca), which does not have a morgue or qualified service personnel.

Thirdly, special indigenous jurisdiction should make available to the ordinary justice their mechanisms of protection such as the indigenous guard in cases required by the ordinary justice system; being this a sign of cooperation and coordination among themselves.n

In conclusión, when one speaks of access to justice, it must be understood as a legal commodity, something that is constantly infringed and not have it goes against due process and liberty, not taking into account this postulate goes against human rights that advocate by the dignity of the subject.

Therefore, there can not be a victimizing speech to demand rights and another speech to ignore the rights of others.

Otherwise it would be as stated by Simón Bolívar plowing the sea and grow in the wind.

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[1] Tewala Spiritual guide

[2] Whip: to strike with a slender lithe implement (as a lash or rod) especially as a punishment

[3] Trap: Instrument made of two thick timbers, that includes holes for the wrists and neck, where is the sanctioned fastened.

[4] Nettle: any of various prickly or stinging plants other than the true nettles (genus Urtica).