The Restoration and Protection of Afro-colombian Land to Establish Equality and Mitigate Violence

• Citation: Vol. 33 No. 3
• Publication year: 2019
• topic: Civil Rights

The Restoration and Protection of Afro-Colombian Land to Establish Equality and Mitigate Violence

Maria Claudia Fuentes

THE RESTORATION AND PROTECTION OF AFRO-COLOMBIAN LAND TO ESTABLISH EQUALITY AND MITIGATE VIOLENCE

Abstract

As the Colombian government is attempting to achieve peace in its country after fifty-two years of civil conflict, peace will not be attainable unless the Colombian government addresses the vulnerable status of Afro-Colombians and their land rights in the Pacific region of the country. The vulnerability of Afro-Colombians and their land rights have greatly impacted the instability in the nation. Throughout the civil conflict, numerous bloody skirmishes occurred on the arable lands of Afro-Colombian. These bloody skirmishes will continue because of the desire of criminal non-government actors to take the arable land and use it for profit. Colombian law dictates that before any development occurs on their lands, Afro-Colombians must be consulted. This policy is known as consulta previa. Criminal non-government actors have attempted to get around the consulta previa through violent measures. The Colombian government has failed to protect Afro-Colombians and their lands from these non-government actors. In turn, the Colombian government has encouraged businesses to seek out the arable land for development and has failed to enforce consulta previa. This Comment argues that these policies by the Colombian government have left Afro-Colombians vulnerable to continued violent attacks by both criminal nongovernment actors and businesses that the Colombian government supports. This Comment proposes that to protect Afro-Colombians and their lands the Colombian government should communicate with Afro-Colombians and implement a stronger policy of consulta previa by using the Declaration on the Rights of Indigenous People as a guideline and by granting Afro-Colombians the ability to veto the plans that are presented to them.

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Introduction

Afro-Colombians in the Pacific Region of Colombia have uniquely endured violent attacks on their personhood, community, and property throughout the country's history. Unfortunately, this remains the case today, even as many other segments of Colombian society have begun to experience the promise of postwar prosperity and peace.

In November 2016, the Colombian government and the guerrilla group—Fuerzas Armadas de Revolucionarias de Colombia (FARC) signed a peace agreement that ended a fifty-two year conflict.¹ The Colombian Civil Conflict² led to 220,000 deaths, 7 million displacements, and around 33,000 kidnappings.³ The peace agreement signified many different things for Colombians: the end of half a century of bloodshed,⁴ a boost in the economy,⁵ and, for internally displaced citizens, a chance to return home.⁶

For the Colombians who live in major cities, such as Bogotá or Medellín, progress from the turmoil has been underway for several years.⁷ In those cities, the occurrence of violent crimes has decreased, and employment opportunities

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and access to healthcare have increased.⁸ But for those who live in the Pacific Region of Colombia, relief from the turmoil that characterized wartime is currently unattainable.

Peace in the Pacific remains unattainable because violence in the area is often connected with the desire for arable land and the facility to take land from its occupants.⁹ The desire for arable land is often manifested through forceful land grabs.¹⁰ The land can be taken from its occupants due to the lack of protections the Colombian government provides the occupants of the Pacific Region.¹¹

Violent forceful acquisitions of arable lands in the Pacific Region did not begin with the rise of the guerrillas, and such practices will not be eradicated by peace agreements.¹² The physical removal of people to acquire arable lands in post-Independence Colombia can be traced back to the early 1800s when landowners and the Colombian government asserted dominion over lands that were inhabited by Afro-Colombians and Indigenous peoples.¹³ Wealthy landowners and the Colombian government pushed several Afro-Colombian groups and Indigenous peoples off the land to establish an agricultural industry in the area.¹⁴ This physical removal detrimentally impacted Afro-Colombians' and Indigenous peoples' society, independence, and means of survival.¹⁵

The emergences of other violent actors such as the guerrillas, the paramiliatares, and the cartels in the Pacific Region contributed to fights over lands that have exacerbated the pain of Afro-Colombians and Indigenous people,¹⁶ and interest in the arable lands of the Pacific has not ended. Today, the

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fertile land of the Pacific Region is still being fought over because the lucrative industry of palm oil cultivation requires rich land.¹⁷

This Comment will focus only on the treatment of the Afro-Colombians of the Pacific Region.¹⁸ While Indigenous people endured transgressions similar to those suffered by the Afro-Colombians, Afro-Colombians are unique in a sense that the Colombian government and society historically denied their presence in the country.¹⁹ Since Afro-Colombians' status as a distinct group was essentially erased from the Colombian society, the Colombian government overlooked the unique historical and cultural connection that Afro-Colombians had to the land in the Pacific Region and ignored the pain that Afro-Colombians endured.²⁰

Throughout the battles for land in the Pacific, Afro-Colombians were subjected to horrendous acts of both physical and mental depravity: families were often removed from their homes at gunpoint; women were often raped; and, along with their land, Afro-Colombians lost their independence and culture.²¹

The Colombian government has attempted to make amends for its past behavior of prioritizing economic development over Afro-Colombian land rights and, in 1991, began to recognize Afro-Colombians' ties to certain lands in the Pacific Region through the ratification of Law 70 into its Constitution and the establishment of consulta previa.²² These laws provided Afro-Colombians

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with collective title to their lands, ensured certain lands rights and recognized the past assaults that Afro-Colombians faced on their livelihoods.²³ However, the Colombian government has failed to establish a clear policy on how to reconcile the interests of the agricultural industry with the interests of Afro-Colombians.²⁴

If the government does not reinforce the current protections to Afro-Colombian lands, such as consulta previa, Colombian citizens may continue to face more violence as eager business owners and bacrim²⁵ forcibly take Afro-Colombian land and assassinate Afro-Colombian leaders who attempt to assert and protect their land rights.²⁶ To move past the violence of the Colombian Civil Conflict, and to truly achieve peace within the nation, the Colombian government must prioritize the rights of Afro-Colombians over those of corporations by truly recognizing and respecting Afro-Colombians' rights to land.

Safety in the Pacific will only be possible if the Colombian government does four things: (1) moves away from its current loose legal framework of consulta previa and stops circumventing consulta previa by (2) communicating with Afro-Colombians, (3) using the Declaration on the Rights of Indigenous People (UNDRIP) as a guideline, and (4) granting Afro-Colombians the ability to veto. This Comment will advocate for the above proposal while examining the attendant obstacles it faces through four interrelated subtopics: Part I will detail a brief history of Afro-Colombians in the Pacific Region and the origins of the modern land-rights dispute. Part II will describe the current system of laws

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protecting Afro-Colombians' title to property. Part III will address problems with the current system, and Part IV will propose changes that will enable the system to provide more protections to Afro-Colombians. Part V will address criticisms to the general concept of consulta previa.

I. A BRIEF HISTORY OF AFRO-COLOMBIANS IN THE PACIFIC

The Pacific Region of Colombia is a predominately rural area that lacks access to infrastructure, healthcare, and education.²⁷ Home to the departments of Choco, Valle de Cauca, Cauca, and Nariño,²⁸ the region is inhabited primarily by Afro-Colombians, who make up ninety percent of the population.²⁹ The presence of Afro-Colombians in this area dates back to the 1500s.³⁰ To understand why Afro-Colombians have collective title to certain land and to appreciate the connection between Afro-Colombian land and the violent land-grabs by paramilitares and guerrillas, a brief history is necessary. This section will discuss four different time periods of Colombian history. The first section will discuss the arrival of African slaves to Colombia and their role in Colombian independence from Spain. The second section will discuss the development of the Afro-Colombian society. The third section will look at the destabilizing impact of guerrillas and paramilitaries on Colombia and Afro-Colombians. The fourth section will discuss how Afro-Colombians gained recognition by the government and were granted certain rights that protected their land and their culture.

A. Independence and Freedom

In the 1500s, Africans arrived in the Pacific Region of Colombia through the transatlantic slave trade.³¹ Spaniards enslaved Africans and exploited their labor

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in gold mines, sugar haciendas,³² and cattle farms.³³ Some Africans and their descendants were able to achieve freedom prior to emancipation.³⁴ African slaves, free blacks,³⁵ and mulattos³⁶ would play an integral role in the fight for independence against Spain that began in the 1800s.³⁷ Their involvement in the fight for independence would impact their status in society. During the battles for independence, gradual emancipation efforts occurred in liberated territories that were no longer under Spanish...