* This document contains the seventh periodic report due on 17 February 1996. For Guatemala's second to sixth reports and the summary record of the meetings at which the Committee considered those reports, see document CERD/C/256/Add.1 (CERD/C/SR.1092 and 1093).
The annexes may be consulted in the files of the Centre for Human Rights.
The information submitted by Guatemala in accordance with the consolidated guidelines for the initial part of the reports of States parties is contained in the basic document HRI/CORE/1/Add.47.
Paragraphs
Introduction : 1 - 8
I. GENERAL ASPECTS OF RACIAL DISCRIMINATION AND THE INDIGENOUS POPULATION IN GUATEMALA : 9 - 16
A. Discrimination : 9 - 12
B. General commitment of the State of Guatemala as a party to the Convention : 13
C. General appraisal of the current status of the Guatemalan indigenous population : 14 - 16
II. COMPARATIVE SUMMARY OF GOVERNMENT EFFORTS TO IMPLEMENT THE CONVENTION AND ITS SUBSTANTIVE PROVISIONS : 17 - 35
Article 2 : 18 - 24
Article 3 : 25 - 28
Article 4 : 29
Article 5 : 30 - 31
Article 6 : 32 - 34
Article 7 : 35
III. GOVERNMENT ACTION ON BEHALF OF THE INDIGENOUS POPULATION : 36 - 85
A. Social funds : 36 - 49
B. Health : 50 - 58
C. Education : 59 - 62
D. Political and social participation by the indigenous population : 63 - 74
E. Access by indigenous people to the systems of justice and legal protection : 75 - 79
F. Support programmes for the voluntary repatriation of Guatemalan refugees : 80 - 85
IV. THE INDIGENOUS POPULATION IN THE FRAMEWORK OF THE PEACE : PROCESS : 86 - 92
V. CURRENT OUTLOOK : 93 - 95
VI. CONCLUSIONS AND FINAL COMMENTS : 96 - 101
1. The State of Guatemala has been submitting its reports as a signatory and party to the International Convention on the Elimination of All Forms of Racial Discrimination since 18 January 1983, the date of the instrument's entry into force in Guatemala.
2. The second, third, fourth, fifth and sixth periodic reports of Guatemala, combined in a single document, were considered by the Committee, at its forty-sixth session in March 1995. The document included general features of the country such as demography, ethnic make-up and the multicultural nature of Guatemalan society, as well as an analysis of the provisions of the Convention. At the same session, the State of Guatemala agreed to submit an updated periodic report, following the format of earlier reports, in February 1996. This document was prepared in accordance with that commitment and is organized according to the guidelines contained in the United Nations Manual on Human Rights Reporting.
3. The report has been divided into six main sections. Part I contains a general, up-to-date appraisal of the Guatemalan indigenous population and a description of Government policies for the elimination of racial discrimination and the activities that have been carried out to implement that policy in accordance with the provisions of the Convention.
4. Part II of the report contains an analysis of some of the articles of the Convention and information on the steps taken and efforts made by the State to implement them. Details are given of other Government action to strengthen existing policies for the elimination of racial discrimination in the country.
5. Part III contains information on specific action taken by the Government through the social funds, especially in relation to health and education for the indigenous population. Other topics of interest are discussed, such as indigenous participation in political and social affairs, access by indigenous people to the systems of justice and legal protection and support programmes for the voluntary repatriation of Guatemalan refugees.
6. Part IV of the report describes in detail an aspect of the highest importance, the Agreement on Identity and Rights of Indigenous People, concluded in the framework of the peace negotiations.
7. Part V of the report provides very general information on the current outlook for indigenous matters in the country and the bases for the current Government's indigenous sector policies.
8. Part VI contains some concluding comments, providing a brief summary of the existing situation in the country, not only regarding compliance with the Convention, but on indigenous matters in general and especially the issue of racial discrimination.
9. Discrimination in Guatemala is found in a multiplicity of daily situations. As everyone realizes, this situation is the result of the social and economic relationships established over 500 years of colonization, with temporary variations that ranged from intense physical ill-treatment and exploitation in the years of the conquests (1524) and colonization (through 1821) through the introduction of the mechanisms of the colonial administration, such as the encomienda (indian village and inhabitants granted to Spanish colonists by royal decree), the obrajes (form of debt servitude), the reducción (settlement of converted Indians), the mandamiento and especially the tributos (tributes), and the enactment of legislation or regulations in extremely subtle terms and a language different from that of the colonized in order to affirm the domination of one group over the majority of the population.
10. Discrimination as a social phenomenon is a very broad subject area; below are a few features that are considered to be typical of patterns of discrimination in our country:
Ethnic origin;
Economic standing;
Place of residence, rural or urban;
Relegation of women to poorly-paid jobs;
Requirement of specific ages for awarding of jobs.
11. The Convention states: "... the term 'racial discrimination' shall mean 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". It should be emphasized in this connection that the Government of Guatemala does not advocate any discriminatory behaviour or attitudes in Guatemalan society and that discrimination exists in a veiled form in the daily lives of Guatemalans, in human interrelationships based on structures inherited from the past. Despite the foregoing, the Guatemalan Constitution prohibits discrimination of any kind and the Government is fully aware of the fact that steps must be taken to eradicate the de facto discrimination that impairs indigenous Guatemalans' enjoyment of their rights.
12. One aspect that cannot be isolated from the series of situations that have created this de facto discrimination is the internal armed conflict by which the entire nation, but most heavily the indigenous population in the country's interior, has been affected for the last 35 years. The particular ways in which the conflict has developed have established a framework that unfortunately tends seriously to impair the rights of indigenous people, principally the rights to housing and access to education, health and development, i.e. an entire set of basic needs.
13. As a party to the Convention, the State of Guatemala is legally bound at both the national and international levels to enforce and conform to all policies and action that it is necessary to implement in order to give effect to its commitments under the Convention. Under the Constitution, international human rights instruments ratified by Guatemala take precedence over internal law. In addition, as will be explained in another section, there are no restrictions on invoking the Convention in the country's courts or before its administrative authorities by any Guatemalan who, in the full exercise of his rights, decides to do so.
14. At least one undeniable phenomenon has occurred in Guatemala in the last decade and it should under no circumstances go unnoticed. This is the fact that participation by the indigenous population at different levels of national life has broken ground leading to substantial changes, unprecedented in the country's political and social history, for this important sector of the population.
15. Perhaps the most important achievement in this regard has been the creation of awareness, primarily on the part of the authorities, that we live in a multicultural and multi-ethnic country and that each sector has its particular features and needs as human beings.
16. Because of these developments, in recent years and probably most intensively from 1985 onwards, the different Governments have incorporated policies specifically targeting the country's indigenous populations into their political plans, thereby making it possible to meet some of their demands, although others require deep-seated structural changes in order to be fulfilled.
17. As fully explained in the initial report submitted by the Government of Guatemala at the Committee's May 1995 session, Guatemalan legislation does not permit distinctions, exclusions, restrictions or preferences for individuals on the basis of race, colour, lineage or origin; this means that the country's legal system does not restrict the rights of any Guatemalan or foreigner, with the exceptions laid down by the law for certain cases.
18. The State of Guatemala has fulfilled its obligation not to engage in any act or practice of racial discrimination against persons, groups of persons or institutions. The basis for this is the Constitution, which is of a general, non-casuistic nature and whose contents are uniform and standardized for all social groups.
19. Respect for equality is promoted and the Government has issued instructions for authorities throughout the country to act in conformity with the provisions of this article of the Convention.
20. One important aspect has been information and education on the topic of racial discrimination. The Human Rights Procurator and the Presidential Commission for Coordinating Executive Policy in the field of Human Rights have conducted seminars and forums, with participation by other national agencies, in which issues relating to respect for human rights, particularly the rights of indigenous peoples, have been analysed and discussed. Specific activities have also been carried out for analysing the provisions of the Convention, ILO Convention No. 169 and the Agreement on Identity and Rights of Indigenous People between the Government of Guatemala and the Unidad Revolucionaria National Guatemalteca. All these activities are aimed at rasing social awareness and intensifying the authorities' commitment to indigenous people.
21. The Government apparatus is now fully open to participation by indigenous people, as shown by the fact that many indigenous people have held and continue to hold important posts in the Government hierarchy, such as Minister and Vice-Minister of Education, administrators of social funds, specifically the Guatemalan Fund for Indigenous Development, mayoralties, positions in departmental governments, the Congress of the Republic and a number of other posts in which they have played useful and important roles.
22. Radio programmes have been planned and executed through the country's official radio station, "TGW la Voz de Guatemala", to raise public awareness of the need for non-violence towards children and women, especially among indigenous people, in compliance with the international conventions to which the State of Guatemala is a party. The theme of these programmes is that these sectors of the population are precisely the ones whose social situation makes them the most vulnerable to prejudice, stereotypes and racial and social discrimination.
23. The Government's plans include a review of national and local Government policy towards the indigenous population with a view to finding solutions to some elements that are not yet in tune with their needs and, similarly, to introduce measures appropriate to the nation as a whole which will more effectively benefit the indigenous groups in the country.
24. In this context, it should be added that the policy followed by the Government has been one of paving the way for indigenous participation in all aspects of national life, on the understanding that their participation will help ensure closer consideration of their problems and lead to a better understanding among the population of the particular features of these special ethnic groups that make up the Guatemalan indigenous community.
25. Guatemalan legislation prescribes equality in the application of legal provisions and all citizens of the country are recognized as having equal rights and obligations; legally speaking, there are no practices that result in social segregation and all action by the State is aimed at the population in general without distinctions of any kind.
26. The action taken by the Government of Guatemala includes its commitment under the Agreement on Identity and Rights of Indigenous People to promote a bill in the Guatemalan Congress incorporating the provisions of the International Convention on the Elimination of All Forms of Racial Discrimination in the Penal Code with a view to enforcing it and punishing violations thereof. The Government also promised to complete the proceedings for recognition of the Committee on the Elimination of Racial Discrimination as set forth in article 14 of the Convention. For the same purpose in connection with this article, the Government, in consultation with indigenous people, intends to work for the adoption of the draft declaration on the rights of indigenous peoples in the appropriate United Nations forums.
27. On 11 October 1995, a bill was submitted to the Congress of the Republic to reform the Penal Code by adding the offence of racial and ethnic discrimination to the text. The bill is currently being considered by the Commission on Legislation and Constitutional Issues of the Congress and pending an opinion.
28. Among other legal steps it has taken, the Congress of the Republic has completed its first and second readings of ILO Convention No. 169 concerning Indigenous and Tribal Peoples in Independent Countries. In accordance with the appropriate procedures, before being considered on third reading the draft was submitted to the Constitutionality Court for an advisory opinion on the constitutionality of the ILO Convention's provisions. In May 1995, the Court issued a favourable opinion, to the effect that the contents of Convention No. 169 did not contradict the Constitution of the Republic. This decision was submitted to the Congress of the Republic and is currently under consideration. Owing to the general elections held at the end of 1995 and the fact that the new congressional deputies took office on 14 January 1996, it was not possible to continue the analysis of the Convention. However, in view of the number of indigenous representatives in Congress and the importance of prompt ratification of the Convention, it is hoped to continue the review of the Convention and reach a final decision this year.
29. As explained earlier, the State permits no acts of the kind described in the article under review from any point of view, either in the State machinery or in the population at large. In fact, the use of State, human and financial resources for the benefit of any sector in particular has been expressly prohibited. What is more, as the discussion of the preceding article of the Convention indicated, the legislative measures currently being considered will contribute substantially to the more effective implementation of the principles laid down in this article.
30. Although our Constitution is a general one and the rights listed in article 5 apply to all Guatemalans without any discrimination, section III of the Constitution, entitled "Indigenous communities", contains some specific provisions relating to protection of ethnic groups; protection of indigenous land and of indigenous agricultural cooperatives; land for indigenous communities; and migrant labour and protection of migrant workers (copies of these articles are attached). The articles may be consulted in the Secretariat files.
31. As a result of history and experience in relation to the enjoyment of indigenous rights, changes aimed primarily at indigenous groups have been introduced in the past few years. To this end important steps have been taken in all areas of national life with a view to improving the living conditions of indigenous groups, which are in any case the groups most vulnerable to discrimination. This approach by Governments to the indigenous problem has given rise to specific initiatives which take account of indigenous people's particular features and practical needs and include:
centres: El Petén, Cobán, Quetzaltenango, Quiché, Huehuetenango, Sololá and Chiquimula, where MINUGUA also has offices, primarily to support all aspects of the Mission and conduct activities such as: coordinating observance of human rights principles by the local offices of the various ministries; promoting information meetings and activities, with the participation of the local authorities, on topics of interest, principally human rights and the agreements signed as part of the peace process; serving as link between the Government and the people for providing guidance and information on the procedures that they may use to give effect to their rights or for supporting those who feel that their human rights have been violated; and providing guidance with regard to MINUGUA's operations in the country. One aspect that should be mentioned is that, in order to eliminate language barriers which in some cases impede access by the indigenous population to Government authorities, every regional office of COPREDEH has personnel that speak at least one or two of the Mayan languages most widely spoken in the region under the jurisdiction of that office.
32. With regard to protection and effective remedies for individuals in the competent national courts and other State institutions, there have been no official reports to date of any judicial proceedings filed in the country's courts of justice for acts of discrimination.
33. In the specific case of the indigenous population, action has been taken to give indigenous people greater and more effective access to the legal bodies and mechanisms available for the administration of justice. In this connection, mention should be made of the establishment of the Division of Indigenous Affairs of the Office of the Attorney-General of the Nation, which is responsible for helping the country's ethnic groups in their legal dealings with the State to ensure that the indigenous population is not placed at a disadvantage because of its particular social and economic situation.
34. The executive staff of the Office of the Attorney-General has been encouraged to learn the Quiché and Cakchiquel languages as a start to a process of eliminating any language barriers that might restrict or limit access by the indigenous population to the country's legal machinery at any given time.
35. With regard to the commitment to adopt immediate and effective measures, particularly in the fields of teaching, education, culture and information, with a view to combating prejudices which lead to racial discrimination and to promoting understanding, tolerance and friendship among nations and racial or ethnical groups, as well as to propagating the purposes and principles of the Charter of the United Nations, the Universal Declaration of Human Rights, the United Nations Declaration on the Elimination of All Forms of Racial Discrimination and the Convention, the Government of Guatemala has channelled its efforts through various Government branches, which have conducted specific activities that include the following:
36. Social funds are currently one of the most effective mechanisms established by the Government on behalf of the sector of the population most affected by poverty and violence, a large proportion of which is indigenous. The main areas covered by the funds are: health, education, infrastructure, development of cooperatives, institutional strengthening, self-sufficiency, attribution of land, loans and crop inputs.
37. The social funds include: the National Peace Fund (FONAPAZ); the Social Investment Fund (FIS); and the Guatemalan Housing Fund (FOGUAVI). One of the most important, on account of its special features, is the Guatemalan Fund for Indigenous Development (FODIGUA), which was set up in 1994 as a national agency for the development of the Maya people and which has a bipartite structure (Government-Maya organizations). FODIGUA's aim is to support and enhance the development of the indigenous population and to channel funds in order to meet their needs. Its main activities include social development projects, socio-productive projects, projects to strengthen institutions and basic infrastructure projects.
38. In 1995, FODIGUA carried out its work on behalf of a predominantly indigenous population with a budget of 30 million quetzales which were used to implement 48 projects of various kinds for the benefit of 57,922 persons living in towns, villages and hamlets in the departments of Izabal, Alta and Baja Verapaz, El Quiché, Totonicapan, Sololá, Chimaltenango and El Petén. The projects related to livestock, food assistance, nixtamal mills, training, school construction, provision of equipment, latrine construction, construction of training centres and purchases of inputs. For 1996, FODIGUA has requested an increase in its budget from 30 to 70 million quetzales. It plans to implement 29 projects and is processing requests for the financing of 310 more projects. In 1996, FODIGUA will also receive additional support from the Spanish Cooperation Fund, amounting to 1.17 million quetzales, which have already been approved, and a further 700,000 quetzales granted by the World Bank to allow the projects to continue.
39. The National Peace Fund (FONAPAZ), which comes under the responsibility of the Office of the President of the Republic, provides assistance for many indigenous people, particularly groups of returnees and internally displaced persons in the departments of Petén, Alta Verapaz, Baja Verapaz, Sololá, Chimaltenango, Totonicapan, San Marcos, Huehuetenango and Quiché. The essential purpose of the fund is to lay the foundations for community reconciliation by means of projects to develop a culture of peace, participation and equality.
40. Through its peace-building support unit, FONAPAZ has awarded land-purchase loans to 1,713 families (approximately 9,500 persons) amounting to 53.5 million quetzales, which were used to purchase 18 farms with a total area of 610.11 caballerías (28,233.50 hectares).
41. Loans were granted for land purchases by the uprooted population especially three significant groups: organized returnees, independent refugees and internally displaced persons. As far as the organized returnee population is concerned, the commitments made in the agreements of 8 October 1992 between the Government and organized refugees have been complied with to the extent allowed by the available funds. To guarantee the uprooted population fairness, the Fund has financed land for 286 other families (approximately 1,575 persons) who were displaced by the armed conflict or who returned independently. The size of the investment is 4.5 million quetzales, involving four estates with a total area of 49 caballerías (2,267.53 hectares).
42. With regard to loans for job and productive reintegration, FONAPAZ has stepped up its financial efforts to award loans for productive activities by the uprooted population. In the 1992-1995 period, 1,463 families benefited from loans amounting to 8.2 million quetzales.
43. Investment to promote community reconciliation has made it possible to develop instruments which have fostered reconciliation. The Fund has financed the transfer of new settlers to land owned by displaced refugees. As a result, 413 peasant families who were left out have been given the assurance of owning their own land.
44. As to the improvement of housing, with the cooperation of the Government of Japan, the Fund has improved 6,200 dwellings for the benefit of the same number of families in 99 villages at a cost of 25.1 million quetzales.
45. Where production is concerned, FONAPAZ has taken part in agricultural innovation projects whose purpose is to broaden the traditional productive chain. An ambitious and innovative system of production in the towns of San Antonio Llatenago and Santa Maria Cunén is being funded in response to requests from unions and labour. A total of 1.1 million quetzales has been invested to enable 5,058 peasants, whose social reintegration is virtually complete, to move towards sustainable development through food self-sufficiency, local sales and exports.
46. Although dozens of community infrastructure works have been financed in areas where more than 80 per cent of the population is indigenous or of indigenous origin, the 4.9 million quetzal investment for the stretches of road in Ixcán and the Ixil Triangle in El Quiché department are considered to have had a major impact. In Ixcán, the Fund, acting through the Development Programme for Displaced Persons, Refugees and Returnees in Central America, built the 13.25 km stretch from Veracruz to Mayalán, which is vital for peace and is intended to link Cantabal with Ixcán and Quiché with Santa Cruz Barillas and Huehuetenango. In addition, the Nebaj-Sumalito and Juill-Visiquichum stretches of highway were built at a total cost of 4.2 million quetzales. As a result of the construction of these stretches of road, peasants will now be able to market their produce more easily and thus earn larger profits, as well as obtaining access to essential public services. With the support of the European Union, 1.9 million quetzales have been invested in the construction of the Bilil-Yocultac highway, which is intended to connect Nentón with San Mateo Ixtatán in Huehuetenango department.
47. Another important mechanism set up by the Government is the Social Investment Fund (FIS), which has financed 30 community bank projects exclusively involving women, most of them indigenous, who have thus been granted loans for the first time and are getting into the habit of saving. Some 325 persons have benefited and 3.4 million quetzales were invested. In order to develop productive income, the Fund has created 43,842 new jobs by directly hiring predominantly local labour, as well as 44,712 new jobs in the economy each month as a result of purchases. Productive training has been provided through four projects costing 1.6 million quetzales, from which 3,335 young people and adults, most of them women and girls, have benefited and which use the equipment of three training centres, while a further 6,000 persons have benefited from the construction of a new centre.
48. The Programme of Assistance for Widows and Orphans (PAVYH) also operates within the governmental system. It is a remedial social programme for which the Office of the President of the Republic and other State agencies are jointly responsible and it was established in order to help compensate for the difficult circumstances of this sector of the population. The target population is composed of 80 per cent of indigenous women who are heads of household, live in extreme poverty and are affected by all types of marginalization, especially because they are women and of Maya origin.
The Programme covers nine departments which have been given top priority: Quiché, Huehuetenango, San Marcos, Alta Verapaz, Baja Verapaz, Petén, Sololá, Chimaltenango and Quezaltenango.
49. The Programme has also implemented a number of productive activities in these departments. The projects funded include financial support for production to allow self-management groups which were already receiving support to complete their work. The provision of assistance to the target population was redefined by allocating financial support for individual productive activities. Monitoring and evaluation of the productive projects under way were carried out in order to define new strategies, both with regard to production and to the management of the productive activity or activities being carried out by the women involved.
50. Article 93 of the Constitution provides that "The enjoyment of health is a fundamental right of the human person, without any discrimination". This principle is applied by Guatemala.
51. At the Government level, health sector reforms have been implemented to introduce a strategy that focuses on geographical and priority areas, as well as a decentralization strategy at the departmental and municipal levels that includes changes in programmes for the integration of institutional activities with a view to providing better care. The aim is to ensure that health programmes reach places that were previously inaccessible in completely isolated communities in Guatemala's interior, where the indigenous majority lives.
52. The implementation of this new policy has made the provision of health care services viable; it has also made it possible to establish revolving funds which are immediately available to pay for inputs, thereby reducing costs and ensuring the efficiency of the services provided; efforts focused on the poorest communities which benefited from immediate measures, with the support of international funds and funds from non-governmental organizations.
53. During the past year, greater emphasis has been placed on preventive medicine and the control of endemic diseases.
54. Still with regard to health and as part of PAVYH, talks were organized on general hygiene, cleanliness in and around the home and the use and handling of food. Training was also provided in the preparation and use of the food donated by the World Food Programme, which was used to encourage widows to take part in literacy training and health talks.
55. With the financial support of FIS, medical seminars were held as part of the 197 health projects carried out in 1995 at a cost of 9.74 million quetzales. These seminars benefited 33,027 persons through 21 disease prevention and control campaigns.
56. Considering that drinking water is essential for health, the National Peace Fund financed the introduction of drinking water supplies in 331 mainly indigenous communities in 1995, at a cost of 29.6 million quetzales.
57. In the health and social welfare sector, 51 construction projects were carried out at an approximate cost of 6.5 million quetzales for the benefit of 139,350 persons in a number of communities in the interior. A further 203 projects, from which 786,537 persons will benefit during 1996, are currently under way in the following areas: drainage systems, water supply, health equipment, construction of health centres, latrine construction, disease prevention campaigns, training and provision of equipment for midwives, training for rural health promotion agents, community pharmacies, hiring of health promotion agents, parasite elimination, and micronutrient and food supplements for children.
58. Various projects have been initiated through the Indigenous Development Fund, such as food and nutritional assistance for the most needy sectors of the indigenous population in at least seven departments in Guatemala's interior.
59. Education, like health, is a constitutional right which the Government of Guatemala is required to guarantee to all Guatemalans without any discrimination. On account of Guatemala's cultural and linguistic diversity, however, the large indigenous majority has had limited access to education at the national level. In order to tackle this problem, the Government of Guatemala has implemented measures through the Ministry of Eduction to introduce and strengthen policies to eliminate obstacles which prevent indigenous Guatemalans having access to educational centres.
60. In the last two years, Government strategy has been aimed at increasing the coverage of the educational system, with emphasis on urban slum and rural areas and on bilingual inter-cultural education; 337,000 children have been enrolled in pre-primary and primary bilingual and monolingual schools in urban and rural areas.
61. According to this approach, the emphasis has been placed on drawing up policies and strategies to eliminate gender-based cultural and social stereotypes in order to curb the process that leads to discrimination. These policies and strategies are under review prior to the adoption of a ministerial agreement for their implementation.
62. Other educational measures at the national level include the following:
of the individual by strengthening the cultural identity of Guatemala's ethnic groups according to the specific cultural patterns of each social group and within a framework of equality and respect in a multilingual and multicultural society.
63. During the past decade, the existence of a new social awareness of the indigenous population within a democratic and constitutional framework has enabled both organized and unorganized indigenous groups to participate more fully in society. This situation is the result of historic developments which have been strengthening a democratic culture of pluralistic participation without discrimination.
64. Briefly summarizing indigenous participation in social and political life, the 1985 Guatemalan Constitution marked a major change in the treatment of Guatemala's indigenous population, as it introduced a set of provisions which were, for the first time in Guatemala's political and juridical history,
intended for the majority of the population; for example, it established a legislative commission in the Congress responsible for the indigenous peoples.
65. A determined policy to support and strengthen local authorities has led to greater participation by the indigenous population in deciding the destiny of their own communities. The strengthening of the municipal corporations has had a multiplier effect in terms of credibility, geographical penetration and dissemination of the concept of peace building.
66. The National Peace Fund has so far financed 86 projects to strengthen welfare agencies in Guatemala's interior, where the indigenous majority lives, for which the sum of 143,745 million quetzales was made available.
67. Another example of a culture of participation is provided by the Development Councils and the Social Development Funds, particularly the Guatemalan Fund for Indigenous Development, which was established through permanent consultation with indigenous ethnic communities and with highly specific aims to contribute to the development of the Maya people, which had been marginalized for so many decades. In the case of the Development Councils, the decentralization and community participation policy made it possible to define hundreds of social investment projects, a great majority of which involved the indigenous population and for which a fund of 314.9 million quetzales was made available by the Solidarity Fund for Community Development, supplemented by contributions from municipalities and particularly by rural communities, a form of tripartite participation that was coordinated by the Executive Secretariat of the Office of the President of the Republic.
68. The myths surrounding the civic and political involvement of the Maya people have been dispelled, as shown by the results of the recent general elections held in November 1995 and the second round of elections in 1996, in which the drop in absenteeism in towns with a predominantly Maya population was an extremely positive development and established a balance of power between urban and rural areas.
69. Such active participation by the Maya is mainly attributable to the dogged struggle of the indigenous people themselves through their various organizations and through the civic committees with indigenous members, as well as to the open-door policies of some political parties which made it possible for Maya to join their ranks. A further contribution was made by the public meetings organized by Maya institutions such as the Committee for the Decade, the Maya Cultural Studies Centre (CECMA) and the K'AMAL B'E Maya People's Political Community, which played a leading role in developing civic participation.
70. Another significant factor contributing to this historic development in the civil and political life of the indigenous communities during the recent elections was the appeal to vote made by the Nobel Peace Prize winner and indigenous leader, Rigoberta Menchú Tum, who directly broadcast a message in Maya languages.
71. The final outcome of indigenous participation in the political and electoral process was the election of indigenous mayors in almost 100 towns, a proportion of whom represent civic committees. Noteworthy examples are the chief towns of Sololá and Quetzaltenango departments. The elections in the former were won by the "Sololatecos Unidos para el Desarrollo" (Inhabitants of Sololá united for development) civic committee and, in the latter, by the XEL-JU civic committee which led to the election of Rigoberto Quemé Chay as mayor of Guatemala's second largest city.
72. As far as Congress is concerned, there are currently six indigenous deputies, belonging to three different political parties, among the 80 members. One of the parties, the Frente Democrático Nueva Guatemala (FDNG) (Democratic Front for a New Guatemala), which started in 1995, brings together a large number of indigenous organizations, such as the National Coordinating Committee of Guatemalan Widows (CONAVIGUA) and the Ranujel Junam Ethnic Communities Council (CERJ), as well as other organizations, such as the Mutual Support Group (GAM). Although the indigenous deputies are relatively few in number by comparison with the other deputies, the new opportunities that have been created are a clear example of how indigenous participation is gaining strength nationwide. Although the six deputies represent various political parties, each with its own programme, they are united by a common interest in their Maya roots, which is why they are prepared, as they have themselves stated, to support any initiatives and legal measures necessary to contribute to the elimination of racial discrimination, the development of the indigenous peoples and the strengthening of their participation in the various spheres of national life, including the consideration and rapid ratification of ILO Convention No. 169 and the adoption of a new act to regulate military service and other national and international legal instruments on behalf of indigenous people.
73. Although indigenous participation has now taken on greater significance, public figures of indigenous origin have in the past held important public offices as minister, deputy ministers, high ranking military posts, posts with the Congress, mayors' offices, municipal councils and departmental governorships, etc.
74. In terms of participation and the exercise of civil and political rights such as military service, indigenous people have played a major role. This constitutional right and duty must be fulfilled voluntarily and without discrimination. Unfortunately, the recruitment procedure employed by the military authorities in the past led to irregular and in some ways discriminatory recruitment. However, this has been corrected. In 1995, a presidential order was issued by the President of the Republic and Commander-in-Chief of the Army prohibiting forced or discriminatory recruitment and ordering that recruitment should henceforth be voluntary. This is still the case and all Guatemalan citizens are free to perform this, their civic duty, without any distinction.
75. It is important to note several guarantees provided for in the Constitution, particularly in article 4: "Freedom and equality. In Guatemala, all human beings are free and equal in dignity and in rights. Men and women, whatever their civil status, have equal rights and responsibilities. No one may be subjected to servitude or any other condition which impairs his dignity. Human beings must act in a fraternal manner towards each other".
76. This general legal framework applies to all aspects of the life of the country, including the free access of individuals, regardless of their race or social class, to the national systems of justice and legal protection.
77. In the case of the International Convention on the Elimination of All Forms of Racial Discrimination, every Guatemalan, whether an indigenous person or not, may invoke the Convention before the national courts. Broad legal support for this right is provided in article 46 of the Constitution, which reads: "Primacy of international law. It is established as a general principle that, in matters of human rights, treaties and conventions accepted and ratified by Guatemala shall take precedence over internal law". This principle is valid and applicable from all points of view and is fully implemented in any case where international conventions or treaties are invoked in support of a right. In such cases, no specific law must be promulgated for the Convention to be implemented, since, under the above-mentioned article 46, such situations are expressly covered by the Constitution.
78. With regard to criminal responsibility for human rights violations, article 45 of the Political Constitutions states: "Action against offenders and legitimacy of resistance. The right to take proceedings against violators of human rights shall be a public right and may be exercised simply by lodging a complaint, without bond or formality of any kind. Resistance by the people to protect and defend the rights and guarantees set forth in the Constitution shall be legitimate". By implication, this right may be exercised on one's own behalf or on behalf of another simply by making a statement, without bond, formality or conditions; any citizen is therefore free, without discrimination of any kind, to have recourse to the legal system to report human rights violators.
79. The Government has taken several steps to facilitate the indigenous communities' access to the national systems of justice, including the following:
80. Since the programme began in 1986, 28,136 refugees have returned to Guatemala from Honduras, Belize, Costa Rica and, in the largest numbers, Mexico. Owing to the fact that 9,553 people returned to Guatemala in 1995, it has been called "the year of the return". During January and February 1996, 136 people returned, bringing the total number of Guatemalan returnees since the beginning of the programme to 29,063.
81. The return process has been monitored and supported by staff from the Ad Hoc Committee for Aid to Returnees (CEAR), a Government body which, in cooperation with the Office of the United Nations High Commissioner for Refugees (UNHCR) and non-governmental organizations (NGOs), has set up a comprehensive programme to provide returnees with food for the first nine months until they are officially established; agricultural equipment and tools; materials for the construction of dwellings; help during transit and on arrival; health care; latrine construction; drinking water supply; and basic settlement infrastructure.
82. The returnees have been settled in the following departments: Huehuetenango, El Quiché, Alta Verapaz, El Petén and Escuintla.
83. With regard to land purchases and grants, 911 repatriated families, most of them indigenous, received a total of 27.5 million quetzales in grants during 1995 and, with the support of the United Nations Development Programme (UNDP) and CEAR, a programme was carried out which involved 12 agronomic studies of 46 farms as a basis for the resettlement of displaced persons.
84. With regard to the economic and social recovery of agricultural cooperatives in Ríos la Pasión, Usumacinta and Machaca, where many returnees have settled, CEAR, the Inter-American Institute of Agricultural Sciences and the National Peace Fund (FONAPAZ) have provided 202 loans for technical assistance for production.
85. Cooperation between Government agencies, international bodies, donor countries and national NGOs has been fundamental to the implementation of many of the projects which have been carried out on behalf of returnees and which include:
86. The indigenous question is an important part of the agenda being considered by the Government of Guatemala and the Unidad Revolucionaria Nacional Guatemalteca (URNG) in the framework of the peace negotiations. After a long but productive discussion, the two parties specifically stated their positions when they signed the Agreement on Identity and Rights of Indigenous People in Mexico City on 31 March 1995. Owing to its multi-ethnic and multilingual nature, the Agreement has great significance and its signing was a historic moment for the present and future of the Guatemalan people.
87. There is no doubt that both the colonial and neocolonial processes have subjected indigenous groups to undesirable levels of discrimination, exploitation and social injustice. The situation has been improving over time, primarily as a result of increased awareness, on the part of the indigenous population and the rest of the Guatemalan community, of their common roots.
88. The following important aspects of the Agreement should be emphasized because of their far-reaching implications:
89. In addition, the Government has explicitly committed itself to promote changes in the constitution in favour of the indigenous peoples, stating that, in general, their rights must not be conceived of as currently described in the Constitution, but should reflect the specific characteristics of each group.
90. With regard to discrimination per se, the Agreement establishes the Government's commitment to promote legislation to classify sexual harassment as a criminal offence, considering as an aggravating factor in determining the penalty for sexual offences the fact that the offence was committed against an indigenous woman. A very important aspect of the Agreement is the Government's commitment to promote, in the Guatemalan Congress, a bill incorporating the provisions of the Convention in the Penal Code and to use all available means aiming at recognition of the Committee on the Elimination of Racial Discrimination, as provided in article 14 of the Convention on the Elimination of All Forms of Racial Discrimination.
91. It is important to bear in mind that the commitments achieved through the Agreement will enter into force at the time of the signing of the firm and lasting peace agreement, except for the aspects of the Agreement which relate to the human rights recognized in the legislation of Guatemala and in the treaties, conventions and other international instruments in that area to which Guatemala is a party and which will have immediate force and application.
92. There is no doubt that, as from the entry into force of the Agreement and the start of the legal reform process, the State of Guatemala will be better able to implement and comply with the commitments undertaken in the framework of the International Convention on the Elimination of All Forms of Racial Discrimination.
93. Continuing the democratic process which began in 1985 and which was fortunately not interrupted by the failed internal coup d'état of May 1992 and the subsequent two-and-one-half-year Government of President Ramiro De León Carpio, the people of Guatemala, in full exercise of their rights as citizens, elected a new national Government by universal suffrage in January 1996. Alvaro Arzú Irigoyen took office as President of the Republic on 14 January 1996.
94. For the last 30 months, the Government has focused on strengthening the democratic system in the context of social stability and respect for human rights, primarily those of the groups which are most vulnerable and were most affected by the violence of the past three decades. There have been great achievements, mainly in a qualitative sense, with regard to the Guatemalan indigenous population, which accounts for approximately 52 per cent of the general population. It has made remarkable progress in development and has gained a foothold in a number of areas of the life of the country. Its participation has increased and there are now over 130 peasant-indigenous organizations working to achieve indigenous rights. This awakening of the indigenous population has taken on greater importance as a result of the current political and social liberalization which the Government has pursued as part of its various activities. There have been historic achievements, particularly with regard to the Agreement on Identity and Rights of the Indigenous People, which, to judge by the early results of its implementation, will no doubt have an even greater impact in the medium term.
95. The current Government will continue to strengthen the achievements of the past few years. There is already an awareness of the need to solve the problems caused by years of division, fragmentation and confrontation. In his inaugural address, the current President reaffirmed the need to combat privileges, discrimination and poverty as a basis for encouraging development, building peace and guaranteeing security; he also publicly acknowledged that "in Guatemala, there are a number of discriminatory practices and patterns of behaviour, despite the fact that everyone is officially equal under the law", adding that "de facto discrimination is practised against the indigenous peoples and also against women. Discrimination is the primary obstacle to the achievement of a national identity of which we may all feel ourselves to be a part without sacrificing our rich diversity". That message is of great importance if translated into the current Government's plan of action for the next four years. At the moment, the proposals made last year for projects involving the indigenous population are continuing to develop and it is hoped that many of them will be implemented this year, along with all the new programmes which are part of the current Government's policies to benefit the Guatemalan indigenous population.
96. There has never been, nor is there now, a State policy in Guatemala which promotes, encourages or tolerates any type of discrimination.
97. There is recognition at the national level that de facto discriminatory situations have occurred, primarily as a result of economic and social factors which have affected the indigenous population in particular.
98. At the Government level, there is full awareness of the problem of discrimination and full support for measures to eliminate this serious social problem.
99. The Government acknowledges its commitment under the International Convention on the Elimination of All Forms of Racial Discrimination and is committed to promoting at the national level all measures necessary to its full implementation.
100. It is recognized that the Agreement on Identity and Rights of Indigenous People is a major achievement which, in the near future, will totally change the life of the indigenous people of Guatemala and eliminate all the barriers which have led to their being treated on an unequal basis with the rest of the population. The Government of the Republic also affirms its determination to comply with all the commitments assumed under the Agreement.
101. The general situation of the Guatemalan indigenous peoples has, in fact, changed and improved compared to that of previous years and these changes are remarkable from every point of view.