Peru: Priority To Articulate Indigenous And Ordinary Justice


By Segundo Chuquipiondo

Wrays Pérez, pamuk (Chief-President) of the Autonomous Government of the Wampis Nation, an Amazonian indigenous initiative to make visible the indigenous territorial management that dates back 7,000 years, tells Latinamerica Press that a code of justice is being prepared for the Wampis Nation, Amazonian indigenous people that inhabits the basin of the Morona and Santiago rivers, in the Amazonas and Loreto regions.

This code should be ready by the end of 2018, and has the support of the 65 communities and annexes that make up the Wampis government. Likewise, the Kampuapiawi (known as Shawi in Loreto), Shiwilu, Quechua of Pastaza and Candoshi peoples, who already have their own communal statutes, see the issue of justice as a strategic core for the communal order, as it is explained by Oswaldo Manihuari, the leader of the Regional Coordinator of the Indigenous Populations of San Lorenzo (CORPI SL) in the department of Loreto.

It should be noted that the “communal statutes” are similar to the political constitution of the state, but reduced to an autonomous people that operates in a determined territorial space.

“Our intention as indigenous organizations is that once the statutes are completed we can go to the Congress to present them and indicate that this is how we want to live, and be clear how far the state justice and our justice can reach,” said Manihuari.

For his part, Pérez explained: “We have had conversations with prosecutors and with the Superior Court of Justice of Amazonas from an intercultural perspective. In other words, we leave in their hands issues dealing with drug trafficking, illegal logging, human trafficking, etc.; in our hands would be indigenous justice; we deal with situations when, for example, a leader does bad deals with businessmen or people outside the community and the community members are unaware of this, we proceed to hand down a punishment: we first reject his leadership role and then we give him ishangasos [lashings with ishanga, a nettle that has many thorns on its leaves and stems]”. Pérez highlights that it is a matter of defining roles and functions according to the case and place.

It has been 24 years since the Political Constitution of Peru, in its article 149, expressly recognized the right to exercise indigenous (communal) justice in a determined territorial space, as long as it does not violate human rights.

To understand indigenous justice in its real dimension we must look at it from an intercultural context, that is to say, with respect to the culture and the place where it is practiced. Juan Carlos Ruíz Molleda from the Legal Defense Institute (IDL) explains, by making a supposition, how justice could be applied in a community: “If a person is caught stealing, he could be punished by walking naked around the main square, hanging a sign reading ‘I am a thief’, in a case of a high Andean community; but, other measures could be taken in the case of the jungle, like giving 10 lashes to the person with ishanga,” the specialist told Latinamerica Press.

Multicultural and multilingual country

Regarding to the legal arguments of indigenous justice, Ruiz Molleda explains that “the indigenous peoples existed long time before the existence of states; and along with them, their thousand-year justice has offered practical solutions to maintain the equilibrium and peace in the community.”

In 1993, the Constitution categorically recognized the right to self-identification of the indigenous-peasant communities and to the right of exercising justice at their own levels of organization and territory. Also, article 15 of the Penal Code of 1991 states that: if a person commits an act based on his costumes and is unaware that it is a crime, is exempt of any responsibility.

Furthermore, there is the Convention 169 on Indigenous and Tribal Peoples of the International Labor Organization, ratified by Peru in 1994. In its Article 2 it establishes that the governments must promote “the full realization of the social, economic and cultural rights of these peoples with respect for their social and cultural identity, their customs and traditions and their institutions.”

In order to determine whether indigenous justice affects human rights, Ruiz Molleda says that “this situation must be looked at in two specific moments: first, with the investigation of the case being brought to justice, and second, with the punishment — which in some experiences, as it is the case of Colombia, it is seen as a healing —, all of it under the criteria of “as long as [the case] puts in danger the life and physical integrity of the person.”

There are 65 indigenous peoples in Peru and 47 officially recognized languages, making it a multicultural and multilingual country. From this fact, comes the real urgency for the proper application of the legal instruments that make visible and guide the process to render justice in the corresponding jurisdiction, guaranteeing peace and the respect for human rights.

Also, the legal pluralism in Peru recognizes the indigenous peoples customary law and the objective is to promote the existence of other types of justice and their levels of organization according to their location, whether in the Andes or the Amazonia.

Communal self-defense organizations

As part of the process of a new policy on intercultural justice, the Judiciary presented last May the Commission of Indigenous Justice and Peace Justice in order to strengthen and improve the levels of coordination with indigenous authorities in the communities where communal justice takes place, with the support of rondas campesinas (autonomous communal self-defense organizations that surged in the mid 1970s in rural areas of the country). Their activity is regulated by the Rondas Campesinas Law 27908 of 2003.

It should be noted that at the end of 2016, the Judiciary presented the bill “Development Law of Article 149 of the Peruvian Constitution, which regulates the intercultural coordination of justice”; a proposal for the coordination of the special jurisdiction with the ordinary jurisdiction to which the Rondas Campesinas were opposed to.

The community based organizations at national level, such as the National Agricultural Federation (CNA) and the Pact of Unity of the Indigenous Organizations of Peru, as well as the Rondas Campesinas, demanded the immediate withdrawal of the bill, as they consider that it would restrict the administration of justice in their own territories by subordinating the special justice that they practice to ordinary justice.

“Over 35 percent of the population in the country is organized in peasant communities and indigenous communities, and the state has not done much to articulate and assist in the efforts between the community and ordinary legal bodies; and it can be said that the organizations themselves are those who approach the offices looking to establish dialogue on this issue,” says Ruíz Molleda.

“There has been talk since 2002 regarding an intercultural policy to understand the justice process, but there have not been concrete actions; that is to say, there are places where the ordinary justice system does not have the least coordination and validity. For this reason, a good faith rapprochement is necessary to learn from indigenous justice and respect it at their decision making levels,” he adds.

Wampion leader Shapion Noningo (a board member of the Wampis Autonomous Government) agrees with the specialist when adding that: “The relationship between indigenous and ordinary justice is not all good, but some form of compatibility based on mutual respect must be achieved.”

Finally, if this type of indigenous justice intrinsic to the country is to be recognized, “we must treat it judicially; contrast it with already available legal instruments,” says Ruíz Molleda.

Latinamerica Press

Latinamerica Press is a product of Comunicaciones Aliadas, a non-profit, non-governmental organization based in Lima, Peru, specializing in the production of information and analysis about events across Latin America and the Caribbean with a focus on rights, while strengthening the communications skills of local social leaders.

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