Peru’s Plurinational Debate on Indigenous Law

Peru’s Plurinational Debate on Indigenous Law

This past Wednesday 6th, America Televisión – one of the most important and most watched TV networks in Peru – interrupted its signal to broadcast breaking news: two of its journalists, investigating corruption allegations in the rural province of Chota, in the Peruvian Andes, were being held against their will in the indigenous community of La Palma and forced to read a political statement in support of Peru’s President Pedro Castillo, on live TV. A week earlier, these journalists’ work in a neighbouring community had revealed that the President’s daughter was allegedly engaging in influence peddling to benefit an engineering company seeking to win bid tenders in the area. Castillo’s family is originally from Chota and is increasingly facing allegations of corruption. Upon realising it was the same team, members of the community’s watch, known as the “Ronda Campesina”, forced the journalists to recant their report as a “false accusation” and promise “not to harm the central Government or [the President’s] family members” as a condition for their release.

Immediately, mainstream media and commentators reacted with outrage at what they described as a kidnapping, extorsion and a violation of freedom of the press. The journalists, in fact, argued this was the result of President Castillo’s hostile attitude against the press. Others, however, argued that Peruvian law grants indigenous communities full ownership over their communal land, as well as the power to enforce communal law through these Rondas Campesinas. In other words, what happened was not a kidnapping or an extorsion, but a lawful detention and to some even lawful punishment under communal law by one of the Chota Rondas. Since then, for the past week, Peru has been embroiled in a complex national discussion about what it means to live in a Plurinational country where, according to the latest census, one in four Peruvians self-identifies as indigenous.

While, for obvious reasons, discussion of this case will rely heavily on Peruvian Constitutional Law, I still wanted to use this post to spark a conversation about a frequently ignored international-law-related issue: that of the relationship between indigenous law and human rights law. For that, however, I need to situate you in the context of a Plurinational Peru.

Peruvian Plurinationalism, Explained

Peru is a Plurinational state, meaning that several different nations co-exist in one single territory. This means it is a legally pluralistic state as well, where each of these nations possess different system of law to regulate their daily lives. This is not so much a question of modern-day legal or constitutional design, but of historical fact.

In the English-speaking world, colonialism is frequently associated with the Anglo model of extermination through European settlement and indigenous displacement. The famous “Conquest of the West” in the United States being the paradigmatic example. But this settler colonial theory does not always easily translate to the indigenous experience in the Americas under both the Spanish and Portuguese empires. As Lucy Taylor and Geraldine Lublin argue in their useful summary of settler colonial literature in the Latin American context:

“Latin Americanists point out that Anglophone settler colonies are built (ostensibly) on the spatial and intellectual separation of ‘settler’ and ‘indigene’, while Latin America is characterised by social, cultural and racial mixing (known as mestizaje in Spanish, mestizagem in Portuguese and créolization/creolisation in the Caribbean region).”

Because of this, in Latin America, the colonial experience is often explained through theories of “coloniality”, understood as a “cognitive mode of power based on a new perspective of knowledge within which non-Europe was the past, and because of that inferior, if not always primitive”.This approach “understands indigeneity in Latin America today as continually shaped by a colonial legacy rooted in racial mixing, rather than indigenous elimination and white settlement, as is the case in the United States”. Rather than exterminated, Peruvian indigenous people were an integral part of colonial society, collectively subject to subjugation, forced labour and forced assimilation. And while there is increasing Latin American contribution to settler colonial theory, these differences often remain unaccounted – even if they are essential to understanding modern Latin America.

The case of Peru, as the main stronghold of Spanish colonialism in South America, is very representative of these differences. As Peruvian historian, María Isabel Remy, explains, in the late 16th century, a few decades after the creation of the Viceroyalty of Peru, Spain was facing a collapse of indigenous population, created by the sudden importation of European diseases. This was a fundamental problem for the success of Spain’s colonial designs, since the Viceroyalty of Peru’s economic viability depended on so-called “tribute” from the indigenous peoples to Spanish authorities. Unlike in the United States, where settlement land was the most priced colonial commodity, in Peru, this was indigenous forced labour. To prevent this collapse, Viceroy Toledo created so-called “indigenous reductions”, forcefully relocating people from the different indigenous nations of pre-Columbian Peru into newly created and autonomously ruled communities, designed to be more efficient and sustainable tributaries of the Spanish empire.

This form of political organisation, with a Western-like government in urban centres, and autonomously run indigenous communities in the Andes continued after independence, with a major change: the influence of slavery abolitionism led also to the abolition of indigenous tribute in 1854. Abolition of tribute meant indigenous peoples living in the highlands were no longer required to sell their labour in the lower valleys to afford their tributary payments and thus Andean economy began to collapse. Wealthy white landowners in the lower valleys could not sustain their economic production without the exploitation of this indigenous labour and thus began a process of semi-feudal appropriation of indigenous lands known as “gamonalismo”. Many communities were simply absorbed into privately owned haciendas in relations of servitude to the land-owning “gamonal”.     

By the 1920s, indigenous discontent was reaching its tipping point and threatening open revolt. At the time, this was (problematically) known as “The Problem of the Indian” – how to incorporate indigenous society into so-called “modernity”. In the eyes of the Peruvian (white and liberal) ruling classes, semi-feudal gamonalismo was an impediment for the creation of Andean markets and the transformation of indigenous peoples into “consumers”. Their logical response was to formally recognise the old indigenous communities of colonial times. Peru’s 1920 Constitution established that “the state will protect the indigenous race and will dictate special laws for its development and culture, in harmony with its necessities” and that “[t]he Nation recognises the legal existence of indigenous communities”.

Gamonalismo, however, did not end. It would take until the late 1960s for a military dictatorship to do by force what oligarchy could not achieve through law, in over a century. Peru’s Agrarian Reform expropriated the gamonales’ land and re-distributed it among the indigenous communities, rebranded “Campesinos” by military authorities. These communities, however, were unable to achieve economic recovery and have remained impoverished and neglected by the state ever since.  

This system continues to this day. Peru’s current 1993 Constitution states that “Campesino and Native communities have legal existence and are legal persons. They are autonomous in their organisation, communal work, and the use and free disposition of their lands, as well as in economic and administrative matters (…). Property over their lands is not acquirable through adverse possession, except in case of abandonment”. Likewise, it states that “the authorities of Campesino and Native communities, with the support of the Rondas Campesinas, can exercise jurisdictional functions within their territory, in accordance with customary law, so long as they do not violate the fundamental rights of people”. This is what is at the heart of the current debate about the alleged kidnapping of America TV’s journalists: what exactly is this “jurisdictional function” and how does it relate to modern human rights standards.

The Applicable Law

One thing that seems to bother many in the discussion about the Amerca TV case is the sudden realisation by Peru’s urban populations, particularly in the elites, that what they originally deemed as empty rural land to be freely transited and admired for its “natural beauty”, is actually private property, owned by indigenous communities, who are within their right to deny access to any outsider, including journalists. According to Law 24657, on delimitation and titling of Campesino territory, this territory is composed by the original lands of the community – those going back to the 1920 reform and the Republican recognition of colonial indigenous titles. In addition, Law 27908, recognises the legal personality of the Rondas Campesinas as an “autonomous and democratic form of communal organisation” that “support the exercise of jurisdictional functions of the Campesino and Native communities”, including “functions relative to communal peace and security within their territory”. As the Constitutional Tribunal has stated, this includes the right to “determine who can enter their property and who cannot”. Under Peruvian constitutional law, in addition, these laws need to be read in conformity with human rights law, including those applicable to indigenous rights and self-determination.  

This means that, legally, indigenous communities can exercise protection of their territory from prowlers and intruders, not just as proprietors of the land, but as actual authorities. This is an important power that is worth protecting. As Peruvian constitutional law scholar, Juan Carlos Ruiz Molleda, points out, mining and other extractive industries, both formal and informal, frequently engage in unauthorised exploration and exploitation activities within indigenous land. The Rondas’ reaction is thus often to detain these individuals and forcefully remove them. Because of this, every year, many Campesinos are sued by disgruntled mining companies claiming their staff was kidnapped, rather than lawfully detained.

In order to settle the controversy, in 2009, the Supreme Court issued a Plenary Agreement on the matter. According to the Court, the first step to determine whether a specific action had been carried out within the contours of Communal/Rondero jurisdiction is the identification of a concrete traditional rule directly related with the protection of communal interests and communal members. Whenever action is taken against non-members, as in the case of the América TV journalists, the Court set out some limitations: (i) the intervened person’s conduct must affect communal interests in a way considered unjust by customary law; and (ii) the Ronderos have to determine that the person acted with knowledge that they were harming communal interests or acted selfishly to affect or offend the community.

Once these two are met, the Court set out an additional barrier, known as the “congruence factor”: the Rondas cannot, through their customary law, violate the “essential nucleus” of fundamental rights, understood as “those fundamental rights where sufficient inter-cultural consensus exists”, such as the right to life, human dignity, the prohibition of torture and inhumane treatment, the legality of process, penalty and punishment, interpreted in conformity with the Rondas’ cultural conceptions.

In other words, the Rondas can commit unlawful acts when they either violate their own communal law or when their communal law provides for a solution that violates the essential nucleus of human rights law. The Court concluded that this latter type of case exists when (i) individuals are deprived of their liberty without reasonable cause or motive, beyond the Rondas’ activities for control of the territory, (ii) unjustified or unreasonable aggressions against intervened individuals, (iii) violence, threats or humiliations exacted to secure a specific declaration (iv) trials without a minimum of possibilities to exercise the right of defence or instances of communal lynching; (v) the application of punishment that is not provided by customary law and (vi) punishment of extreme physical violence.

This is not, however, a settled approach in the South American region. Ecuadorean scholar Oswaldo Ruiz Chiriboga has argued, for example, that “culture has a role to play in the assessment of torture” and that “corporal punishment imposed in certain indigenous communities in Ecuador does not solely intend to punish the perpetrator but also to serve as spiritual cleansing and purification of the wrongdoer, and to restore the social harmony of the community”, meaning that the elements for the configuration of the crime of torture will not always be met, even if a “high threshold of agony is met”. Similarly, the Colombian Constitutional Court has stated that the whipping of members of indigenous communities “despite the physical rigours involved, were applied without serious physical or mental harm and without the intention to denigrate the defendants” and so no violation of the right to personal integrity was found. According to Ruiz Chiriboga, “although indigenous corporal punishments cause pain, in the majority of cases they are of short duration, do not cause permanent and irreparable damage, do not involve vital organs of the body, are not unlimited, and from an indigenous conception are not infamous”.  

This is not the Peruvian approach, nor one I personally agree with. Placing an individual at a disadvantageous interpretation of essential human rights protections because of their identity as an indigenous person hardly seems like a pro homine interpretation of human rights obligations. In Peru, instead, the Supreme Court addressed the situation of potential criminalisation of indigenous practices through the concept of interculturality. It argued that when the agent is unable to understand the illegality of their conduct, article 15 of the Criminal Code should be triggered. This article states that “whosoever, because of their culture or customs, commits a criminal act without being able to understand the criminal character of their act (…) will be exonerated of liability”. Likewise, when someone’s ability to understand the criminal nature of their act is diminished, “punishment will be reduced”. In other words, it is not that the act is not illegal but rather that the actor of the crime cannot be punished. The Court added, however, that the Rondas, “as a general rule, are individuals integrated into the State” and have contact with “official society” (meaning their working relationship with the police and local courts), which means they are less prone to qualifying for this exception – in other words, generally, they know what the essential nucleus of human rights is and are aware and able to comply with the congruency factor.

Some Answered and Unanswered Questions

While we still need some more clarity on the facts, some determinations regarding the America TV case are possible at this stage. Most importantly, prima facie, deprivation of liberty by indigenous Rondas should not be described as kidnapping: as both owners of and legal authorities in their land, they are entitled to require strangers to identify themselves and explain the purpose of their visit.

Once the Rondas determined these were journalists working on a corruption case against the President’s family, however, they should have been released and, at most, sent out of the community so that they can formally request entry. This is not what happened. Video evidence makes it clear that as soon as they realised these were America TV reporters, they made a connection to their prior reporting and the atmosphere got increasingly tense. In the video one can hear a person, presumably a Rondero, complaining that the journalists’ reporting went against the needs of the community, demanding that they “stop digging” into “la señora”, pressumably meaning Castillo’s daughter.

The idea that journalistic and/or corruption investigations would contradict communal law, requiring communal sanction seems quite absurd, considering the Rondas frequently request State authorities to prosecute local mayors accused of corruption. As noted above, the statement seemed political and motivated by the Ronda’s affinity with President Castillo, a former Rondero, and what his family members were doing, because it meant fast-tracking investment (even if as the result of corruption) in their district. The journalists were after all forced to apologise for harming the Government and the President’s family. Forcing journalists under threat of violence to read a statement against their will constitutes, at least, the crime of “coacción” (literally forcing someone to act against their will) under national law and also, most likely, constitutes a violation of communal law itself.

These illegalities should be approached interculturally and with care, of course. For example, in Peru, in the investigation of a crime, the police can retain suspicious individuals up to four hours (Article 209 of the Code of Criminal Procedure). Beyond that, the retention becomes an arbitrary detention. The América TV journalists were retained for over five hours, which made some legal scholars argue that the detention became an unlawful one as of the fourth hour. But, since this is a communal detention, it is arguably not subject to the same procedural rules as other detentions, but rather to the community’s customary laws and the “essential nucleus” of human rights law, which very well could extend a reasonable detention time beyond four hours. Authorities will need to clarify therefore if or at what point the initial detention became an arbitrary one or even if it could have evolved into a kidnapping once the reporters were threatened with harm should they not read the Ronda’s statement on live TV. These are not easy questions and cannot be answered carelessly, even if one agrees that the Rondas acted arbitrarily and in contravention of communal and national law.

It is important to note that this is a sui generis case. It is not common for Rondas to target the press in such a manner, let alone force them to make a statement on live TV. At the same time, because it is such a visible case, dealing with an issue that is of the utmost urgency for the urban elites and the Government’s opposition, it is creating much backlash among politicians and political commentators that, until know, have never really had to deal with issues of Plurinationalism before. Social media conversation is thus veering towards calls for a reform of Rondero powers and to diminish indigenous peoples’ autonomy and self-government, on the argument that Peru should not be divided into “feuds” outside the control of the central government. These are dangerous positions. As seen above, indigenous communities in Peru have solid historical backing and sound legal reasons for why they have these powers. It would be a severe mistake and a gross violation of indigenous rights to use this isolated case as an excuse to deprive indigenous communities of the power to defend and protect their lands from those who wish to unlawfully appropriate them.   

There is, finally, the issue of how these indigenous communities have been neglected by successive governments for literally centuries, to the point where they are willing to ignore corruption allegations if that means their needs will be addressed. In this particular case, what is at stake is literally the most basic access to the national water and sewage grid. It should not take influence peddling and the luck of having one of your local residents become President of the country for projects to start moving. Underneath the arbitrariness of the Ronda, the alleged corruption of the President’s entourage and the outrage at the mistreatment of journalists, lies a policy failure nearly 500 years in the making.

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International Human Rights Law, Latin & South America
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