In Defense of Latin America’s Indigenous People’s Right to Counsel

By Carolina Villadiego Burbano*

 

In 2003, the Guarani leader Kaiowá Marco Verón, known for his activism in defense of indigenous land tenure, was murdered in the state of Mato Grosso in Brazil. His case is currently being reviewed by the Brazilian federal justice system and reflects some of the problems that indigenous communities face in the region’s criminal justice systems. For example, the judiciary felt obliged to transfer the case to the state of São Paulo because a jury would judge the accused and it considered that given the “animosity” against indigenous people in the state of Mato Grosso, it would not be a fair trial. Moreover, the court did not allow the indigenous witnesses to express themselves in their own language but rather were forced to “falar em português.”

Latin America has a host of indigenous groups. In every country there are such groups; in some, indigenous people represent more than 30% of the country’s population (Bolivia and Guatemala), while in others, they make up less than 3% (e.g. Argentina, Colombia, Costa Rica). According to UNICEF, there are more than 500 indigenous groups in the region and the total number of this population is approximately 30 million. Some indigenous groups have several million people, for example, the Quechua, Nahua, Aymara, Maya yucateco and Ki’che’ peoples.

Map showing the percentage of indigenous people per country. Source: Sociolingual Atlas of Latin American Indigenous Peoples.

Map showing the percentage of indigenous people per country. Source: Sociolingual Atlas of Latin American Indigenous Peoples.

In the last 30 years, as Rodríguez and Baquero reflect, various countries (e.g. Bolivia, Ecuador, Colombia, Peru) have constitutionally recognized their multiculturalism and legal pluralism. Some even established “indigenous jurisdictions,” that is to say, they recognized indigenous authorities’ administration of justice, usually in a delimited territory. However, this is not to suggest that indigenous people are exempted from entering the “official” legal system. On the contrary, they are subject to it in various situations (as victims, witnesses, or the accused) and they have additional rights to those guaranteed to all citizens. In practice, to what extent are these rights guaranteed? In reality, rarely. Below I will present some examples from criminal justice proceedings.

Recently, several organizations and authors wrote a book about effective criminal defense in Latin America with an emphasis on Argentina, Brazil, Colombia, Guatemala, Mexico, and Peru. One the topics the book analyzes is the criminal defense of indigenous people in the legal system. The results are not very encouraging.

The book mentions that these countries have few specific regulations regarding their right to counsel. Worse still, when the regulations exist, in practice they are not fulfilled. For example, does the judiciary guarantee the right to be heard of an indigenous person whose native language is not the one used in the proceedings and does not have an intepreter? The truth is that although much legislation recognizes the right to an interpreter in legal processes, this is rarely ensured. Additionally, it is difficult to have interpreters for the entirety of the process: sometimes interpreters are present only for the trial, but not for the preceding stages of police detention or hearings to determine pretrial detention.

Guarani Leader Marcos Verón, photographed during a visit to Newcastle upon Tyne, UK. Source: Flickr Creative Commons via Peter Mulligan.

Guarani Leader Marcos Verón, photographed during a visit to Newcastle upon Tyne, UK. Source: Flickr Creative Commons via Peter Mulligan.

Additionally, indigenous people have to face all sorts of prejudice in the “official” legal system. The book documents situations like the one of the Guarani leader Verón in Brazil, the lack of acceptance of the decisions of indigenous jurisdictions (Guatemala), or situations in which although the indigenous person speaks Spanish the authorities still require an interpreter (Mexico). One can find similar cases in Peru in processes like the Baguazo, where there were irregularities in the defense of indigenous people due to lack of interpreters.

The justice system, in particular the criminal justice system, is not easy to understand. This is the case for victims or for the accused, independently of the ethnic group they belong to. But when one is a member of an indigenous community, the challenges in facing the “official” system as a victim, witness, or the accused are much greater. Everyone has the right due process; as such, if these countries recognize themselves as multicultural, they ought to truly offer judicial services that guarantee multiculturalism. This goes beyond recognizing special indigenous jurisdictions without attempting to encourage their respect and promote their integration with the “official” system. What it really means is that governments should guarantee an “official” legal system free of prejudice against indigenous people that provides them special rights to guarantee due process.

 

*Carolina Villadiego Burbano is a researcher at the Center for the Study of Law, Justice and Society (Dejusticia).