Indigenous Justice: Equality under the law?

Cruel and unusual? An indigenous man being punished with El Cepo. (Photo: El Tiempo)

The other day an indigenous community in Cauca Department condemned two alleged FARC guerrillas to 40 year prison terms for the murders of local indigenous leaders.

Trials under traditional laws have recieved a lot of attention lately. They mean autonomy for indigenous communities and often deal out a kind of direct and immediate punishment, but also bring up lots of questions about fairness, equity and human rights.

The two alleged guerrillas convicted this week were accused in the killings of four local people, including a city councilman and a traditional healer. But El Tiempo reported that the hearing "resembled a political of the FARC."

According to the community half of the 65 homicides of indigenous people in North Cauca in recent

Fair Trial? An indigenous community hearing in El Cauca.
(Photo;: El Tiempo)

years were committed by the FARC. That's a terrible toll, but how much justice is there in punishing a few individuals just because they belonged to an organization which committed crimes?

And are indigenous 'trials' fair by western standards? By my reading of the news stories, the hearing lasted less than a day. Since reporters weren't allowed to watch, it's not clear whether witnesses were called, whether the accused were allowed to defend themselves, whether they were allowed attorneys or other basics of fair trials.

In July of last year a Nasa indigenous community in El Cauca sentenced three FARC guerrillas to 30 lashes each and a third guerrilla, a minor, to 10 lashes after indigenous guards captured them carrying weapons with the apparent intention of attacking a military post on indigenous territory. The Nasa said they punished the three men and the boy not for belonging to the guerrillas but for placing the community in danger of an attack by the military.

Other traditional punishments by that community include 'banana planting' - burying the criminal up to his neck - and 'El Cepo' - locking the criminal by his feet  for days or weeks.

Indigenous courts have also handed out sentences which from an outsider's perspective may seem far too weak or too harsh. In another case in El Cauca a man was sentenced to five years' detention for raping five children, three of them his daughters. In contrast, I've read about indigenous convictees serving long sentences for minor offenses, or despite their apparent innocence.

Article 246 of Colombia's Constitution says that "indigenous authorities may exercise jurisdictional functions inside their territory in conformity with their own rules and procedures," as long they don't violate Colombian law.

But indigenous laws and practices are based on traditions and practices far different from the western legal tradition on which conventional Colombian laws are based.

What is fair, and who defines it?

These punishments also invite reflection on how the FARC guerrillas will be treated in any peace treaty reached with the government. Many of the guerrillas have committed serious crimes, such as murder, recruiting child soldiers displacing peasants and planting landmines.

How will conventional justice compare to the indigenous version?

By Mike Ceaser, of Bogotá Bike Tours