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The New Venezuelan Constitution and the Reconfiguration of Relations Between the State and Indigenou

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The Bolivarian Republic of Venezuela has a total population of: 22,803,409 people (1998) and the indigenous population represents 1.5% of this figure [1] This statistic means that the 32 indigenous communities that exist in Venezuela are also a numerical minority [2] and therefore, twice as vulnerable.

The contemporary history of the relations between the Venezuelan State and the indigenous people was briefly described by the General Office of Indigenous Matters of the Educational, Culture and Sports Ministry of Venezuela [3] as “unaware of the indigenous people’s history, full of assimilation and integration policies from the State perspective and non recognition of the existence of another culture within the country"[4].

Before 1999 the indigenous situation was regulated only by Article 77 of the 1961 Constitution, which said that the law should establish a special system for the protection of Indian communities and their progressive incorporation into the life of the Nation, but no law was approved with regard to this.

According to the PROVEA Report [5] of October 1996-September 1997, this sector of the population was one of most neglected and unprotected by the Venezuelan State. They pointed out that 73% of the indigenous communities of the country did not have any title or legal document on their territories and the situation of insecurity made them victims of evacuations, invasions and expropriations carried out as much by the State as by individuals.

Another important element of the indigenous people’s former situation in Venezuela that needs mentioning is the position of CONIVE[6] during the 11th session of the working group on indigenous populations in Geneva, in June 1992. CONIVE stated that:

“In Venezuela, human rights violations and abuses against indigenous peoples occur systematically (…)no specific legislation has yet been created to fully guarantee our rights as peoples and cultures different from mainstream national society…The State's indifference regarding our problems also constitutes a violation of those rights, and the lack of an adequate indigenous policy, especially regarding health, is a true denial of the right to life. The government's indifference to the problems of the indigenous peoples and its refusal to approve the Draft Universal Indigenous Peoples Human Rights Declaration, which this Working Group is preparing, has been exposed within this Indigenous forum. Likewise, the Venezuelan government refused to revise ILO Convention 107, and has now also categorically refused to ratify Convention 169 [7]"

The situation described in the previous paragraphs is that of an invisible group within the Venezuelan society. A group that was not taken into account as a separate culture and therefore was threatened by the social homogenisation of formal equality.

The 1999 Constitution, unlike the previous one, dedicates an entire chapter to the rights of indigenous communities. During the Constituent Assembly sessions, three representatives of Indigenous peoples, elected in a Special Congress on March 24, 1999, participated. This Congress and the following protagonist role of those representatives during the draft of the new political charter, seem to be the most important moments in the emergence of Venezuelan indigenous peoples as social and political actors.

The preamble of the new constitution refers to the re-foundation of the Republic to establish a democratic society, which is participative, protagonist, multiethnic and multicultural. This statement means the recognition of other cultures within the Venezuelan state, which eliminates the idea of single national culture and ends the assimilation paradigm.

Besides that introductory article, there is also a list of rights in favour of the Venezuelan indigenous peoples. These are: the recognition of collective property over their lands, the right to maintain and to develop their cultural and ethnic identity, to an intercultural and bilingual education, to an integral health that consider their practices and cultures, to maintain and to promote their own economic practices, to have collective intellectual property over their knowledge, technologies and innovation. Also, regarding the use of the natural resources in the indigenous habitats, it prescribed that this is subject to information and consultation of the respective native communities. Finally, the constitution recognized in article 9, the indigenous languages as official languages in the indigenous communities.

Among the list of rights, there are rights that go beyond the set of common civil and political rights of individual citizenship and of course there are opponents. Kymlicka and Norman respond to these opponents that, “rules that are adopted to accommodate ethnocultural differences are not inherently unjust" [8]. Indeed, as these rights are adopted with the intention of recognizing the needs of the indigenous peoples, this situation seems more fair than arbitrary. From the strict perspective of the citizenship theory, this recognition make the non-indigenous population second-class citizens. However, as the recognition is concerned with the status of that group and not the individual status, the situation should be seen, from an open perspective focussed on social justice.

The right to political participation or the right to have their representation guaranteed in the National Assembly, and in the deliberative bodies of the local and federal levels with native population represents an improvement in the vote-centric to talk-centric democratic theory. Toward this, Rachel Sieder says that “rethinking the existing terms of political participation deepens democracy" [9]. Indeed, in Venezuela, an alternative basis of participation has been set with this article, so one may think that there is also an intention to change the distribution of power and really deepen democracy. However, the fact that this group represents a numerical minority lead us to think that maybe the reality would have been different if the indigenous peoples in Venezuela were a sizeable proportion of the population.

Another important right is the right of the legitimate authorities of the native towns to apply their justice system, based on their ancient traditions and that only affect their members, provided that it is not in contradiction to the Constitution, to the law and to the public order. This right could be seen as a way to widen the access to justice for these communities but also as a way in which the State decides which part of the ancient traditions is acceptable. The parameters are: the Constitution, the law and the “public order”. The last term “public order” is very imprecise and could have a wide range of interpretations that will certainly reflect the opinion of an elite and not necessarily the distinct cultural system of the indigenous peoples.

The constitution has also a special article [10] that deserves special analysis. The article declared the native towns, as “part of the Nation, the State and the Venezuelans as unique, sovereign and indivisible (…) the term peoples (Pueblos) will not be able to be interpreted in this Constitution in the sense that it is given in the international law”. In this first part, the article tries to resolve the problem of the peoples/populations controversy at least in the domestic arena. Thus, saying that Venezuela is “indivisible”, indirectly says that indigenous peoples do not qualify for the right to self-determination. This article has a manifest conservative reading of international law and sets the Venezuelan position regarding this aspect of the indigenous rights. Unfortunately, the large majority of the States in the international community also assumes this position.

With regards to this first phrase is also important to say that the drafters tried to preserve the idea of identity in the citizenship context, hence this article is probably the legal base of the idea of “social cohesion” referred by Kymlicka and Norman [11] as a goal of citizenship at the level of the political community as a whole.

Finally, the same article establishes the indigenous peoples’ “duty of safeguard the integrity and the national sovereignty”. This extract of the article have also considerable importance for the individual citizenship conception, because could be interpreted as the indigenous peoples status as legal Venezuelan citizens, citizenship that is defined not only by rights but also by duties.

The real change in the state-indigenous peoples relations, includes not only the incorporation of these important norms in the Constitution but also the legal development, because the National Assembly has approved: the Law of Demarcation and Guarantee of the Habitat and lands of the indigenous communities, the 169 ILO convention and the Fund for the Development of the Indigenous peoples to Latin America and the Caribbeam [12]. The Institutional development, because of the Ombudsman special office for indigenous matters, that supervises the respect for the indigenous communities rights and exercise judicial actions when needed. Also there is a new Permanent Commission of Indigenous Peoples in the National Assembly. The Development in Participation, because there are three representatives of indigenous peoples in the National Assembly. The Development in education, because the Ministry of Education, Culture and Sports through the General Office of Indigenous Matters [13], currently ruled by a person of indigenous origin, have assumed the task of working in the multicultural and bilingual education. The Development in the formulation of indigenous policies because the specialized office is also trying to design indigenous policies in a coherent and assertive way, in order to change the integrationist and assistance policy to actually a more participative and intercultural one. As the basis for the new policies comes from the native communities, they are undoubtedly what Mick Dodson called policies “constructed on the basis of perceived need and comparative disadvantage" [14].

Finally, is necessary to say that in light of the rights already mentioned Venezuela has tried to overcome, at least in legal terms, the common models of relations between the state and the indigenous peoples: segregation, assimilation and integration. Raquel Yrigoyen Fajardo [15], considers that there is a fourth model in the relation state-indigenous, in which indigenous peoples are no longer mere objects of policies, but rather they are political subjects with full rights. This last model, is the model assumed in the new Venezuelan constitution, being possible to see a management of differences between indigenous peoples and the rest of the society, instead of an elimination of them.


[1] http://www.bbc.co.uk/spanish/especiales/venezuela/aspectos.shtml retrieved on 1st of march 2003

[2] Note that indigenous peoples are not considered as “minorities” according to paragraph 76 of the Study on Treaties, Agreements and other Constructive Arrangements Between States and Indigenous Peoples, Final Report by Miguel Alfonso Martinez, Special Rapporteur. E/CN.4/Sub.2/1999/20, 22 of June 1999.

[3] Specialized Office that designs, coordinates and advices about National indigenous policies in Venezuela.

[4] http://www.me.gov.ve/mecd/portal/ retrieved on 10th of March 2003.

[5]The Venezuelan Program of Educación-Acción in Human rights (PROVEA) is a highly recognized Venezuelan non-governmental organization which main purpose is the promotion and defence of human rights. All PROVEA reports can be found in http://www.derechos.org.ve.

[6] The Venezuelan National Indian Council (CONIVE) was at that time the most important entity that works actively for indigenous peoples. It is recognized by the civil Venezuelan society, the different institutional sectors of the State and the international organisations, as well as by the same indigenous communities to the country. Has worked fomenting the conformation of organizations, promoting the participation of the indigenous organizations in the formulation and execution of programs and projects of social development, educating the indigenous leaders, reaffirmation of their ethnic identity, and finally lands rights

[7] http://www.cwis.org/fwdp/International/conive.txt. Retrieved on 10 of March 2003

[8] Kymlicka Will and Norman Wayne: “Citizenship in Culturally Diverse Societies: Issues, Contexts, Concepts”. In Citizenship in Diverse Societies. Oxford University Press, United States, 2000. p 3

[9] Sieder Rachel: Introduction of the book Multiculturalism in Latin America, Indigenous Rights, Diversity and Democracy, edited by Sieder Rachel, Palgrave Macmillan, 2002.p.6

[10] Article 126 of the Bolivarian Republic of Venezuela 1999.

[11] Kymlicka Will and Norman Wayne: “Citizenship in Culturally Diverse Societies: Issues, Contexts, Concepts”. In Citizenship in Diverse Societies. Oxford University Press, United States, 2000. p 31

[12] www.asambleanacional.gov.ve

[13] Special Office that designs the indigenous policies and also coordinate efforts in the materialization of the Constitution in this area. More information in www.me.gov.ve

[14] Dodson, Mick: “Towards the exercise of indigenous rights: policiy, power and self determination”, Race and Class 35.4, 1994. p.67

[15] Yrigoyen Fajardo, Raquel: “The Constitutional recognition of indigenous law in Andean Countries” in The Challenge of Diversity Indigenous Peoples and reform of State in Latin America. Edited by Willem Assies, Gemma Van Der Haar and Andre Hoekemn. The Netherlands. p. 206

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