COMMITTEE ON ELIMINATION OF RACIAL DISCRIMINATION CONSIDERS REPORT OF NICARAGUA
The Committee on the Elimination of Racial Discrimination has considered the combined tenth to fourteenth periodic reports of Nicaragua on its implementation of the provisions of the International Convention on the Elimination of all Forms of Racial Discrimination.
Presenting the report, Alicia Martin Gallegos, Permanent Representative of Nicaragua to the United Nations Office at Geneva, said that, as a result of the regulations pertaining to the Autonomy Statute of the two Regions of the Atlantic Coast of Nicaragua, the indigenous peoples and ethnic communities there enjoyed a large autonomy with regard to the political, administrative, economic and financial affairs in those areas. Those peoples could effectively participate in the development and implementation of national plans and programmes for the development of their region, and could administer their own programmes in the fields of health, education, culture, transport and communal services in coordination with the relevant State Ministries. They could promote their own economic, social and cultural projects, and could make decisions on the use of their ecological, water and land resources and their historical, linguistic and traditional culture. The Office of the Human Rights Ombudsman had also established a special office for the protection of indigenous peoples and ethnic communities, with permanent offices in each of the Autonomous Regions.
In preliminary concluding observations, Régis de Gouttes, the Committee Expert who served as country Rapporteur for the report of Nicaragua, thanked the delegation for their replies, which had been sincere and frank, in particular with regard to the problems faced by its indigenous population and the population of African descent, the persistence of racial stereotypes in the society, and the lack of access to health services in the Autonomous Regions of the North Atlantic. It was essential that Nicaragua, as a multi-cultural, multi-ethnic country, establish a comprehensive programme for the advancement of the Afro-descendant and indigenous communities, that it develop a national strategy to combat racism, and that a new relationship between the State and those groups be forged, including via greater institutionalization of the regional autonomy process. In its next periodic report, Nicaragua would be asked to include more information on the protection of indigenous community land rights and the protection of indigenous sacred sites, among others.
During the discussion other Committee Experts also raised questions and asked for information on subjects pertaining to, among other things, double discrimination faced by Creole women; the situation of illegal migrants; the tradition of indigenous justice; a lack of congruity between the statistics provided in the report and those provided by non-governmental organizations; whether Nicaragua still considered itself the "Mesquito Nation"; what sort of evidence was allowed in deciding the demarcation of indigenous lands; and information on efforts to combat racial stereotypes.
The delegation of Nicaragua also included other members from the Permanent Mission of Nicaragua to the United Nations Office in Geneva, as well as a representative from the Permanent Mission of Nicaragua to the United Nations in New York.
The Committee will present its written observations and recommendations on the tenth to fourteenth periodic reports of Nicaragua, which were presented in one document, at the end of its session, which concludes on 7 March.
When the Committee reconvenes at 3 p.m. this afternoon, it is scheduled to take up the fifth to seventh periodic reports of Moldova (CERD/C/MDA/7).
Report of Nicaragua
The combined tenth to fourteenth periodic reports of Nicaragua (CERD/C/NIC/14), presented in one document, says that Nicaragua has adopted a series of legislative measures and decrees designed to give effect to the International Convention on the Elimination of all Forms of Racial Discrimination. In addition, in terms of social services, in October 1997, the Government approved the Regional Autonomous Education System, which is geared towards comprehensive education of indigenous individuals and ethnic communities. There is also a Bilingual Intercultural Education Programme that facilitates access to various levels of education for the inhabitants of the autonomous regions of Nicaragua’s Atlantic Coast. The National Health Plan, 2004-2015, contains the general guidelines, specific policies and strategies aimed at bringing about a change in the health situation of the individuals, families and communities of the Nicaraguan Atlantic Coast.
Another government priority is the promotion of the human rights of the indigenous peoples of Nicaragua and Afro-Nicaraguans through laws, measures and programmes in favour of those peoples. Accordingly, the Government is endeavouring to reduce the illiteracy rate on the Caribbean Coast through nationwide implementation of the “Yo, sí puedo” (Yes, I can) programme in coordination with the Coordination Committee on the Literacy Programme promoted by the Ministry of Education with the University of the Autonomous Regions of the Nicaraguan Caribbean Coast and other local organizations. The Government will also review the appropriateness of ratifying International Labour Organization Convention No. 169 and will conduct the necessary consultations on its content with all State and regional institutions and civil society organizations involved.
Presentation of Report
ALICIA MARTIN GALLEGOS, Permanent Representative of Nicaragua to the United Nations Office at Geneva, said that, when it came to power, the Government of National Reconciliation and Unity, which had made the promotion and protection of human rights a priority, had set as one of its first tasks to ensure that Nicaragua was brought up to date on all of its reporting requirements under the human rights treaties to which it was a party. To institutionalize and regularize that process, it had therefore set up the Unit for the Monitoring of International Conventions within the Ministry of External Relations and the Inter-Agency Committee for Human Rights – made up of institutions, central government ministries and non-governmental organizations. Thus the report before the Committee was the result of long consultations with civil society and non-governmental organizations.
Following the presentation of its previous periodic report, in 1995, the Committee had formulated a number of concluding observations which the Government had taken to heart, in particular with regard to the creation of national institutions to facilitate the implementation of the Convention and matters relating to training and capacity-building of public officials responsible for compliance with the law and law enforcement personnel in general, Ms. Martin Gallegos said. Nicaragua had also adopted a series of legislative measures and decrees designed to give effect to the International Convention on the Elimination of all Forms of Racial Discrimination.
With regard to legislation, Ms. Martin Gallegos said that the Constitution provided guarantees for equal rights of all Nicaraguans regardless of, among others, race, religion, or social condition. Moreover, the Convention itself was incorporated in the domestic law of Nicaragua and could be invoked in the courts. Then, to complement the provisions of the Convention, a number of laws had been enacted including the act concerning the Official Use of the Languages of the Communities of the Atlantic Coast; regulations pertaining to the Autonomy Statute of the two Regions of the Atlantic Coast of Nicaragua; and the act concerning the Communal Property Regime of the Indigenous Peoples and Ethnic Communities of the Autonomous Regions of the Atlantic Coast of Nicaragua and the Bocay, Coco, Indio and Maíz Rivers. Other general laws have also been promulgated over the past 12 years and contain special provisions for the protection of the indigenous people, including the Citizen Participation Act; the General Act on the Environment and Natural Resources; the Act on the Promotion of Integral Development of Youth; the General Health Act, and the Refugees Act. Finally, in November 2007, amendments to the Criminal Code defined the crimes of discrimination and promotion of discrimination.
Ms. Martin Gallegos then drew attention to pertinent socio-economic factors in Nicaragua. Nicaragua was a poor country. The percentage of those living below the poverty line was 46 per cent, with 15 per cent living in extreme poverty. The socio-political gap between the pacific regions of the country and the Atlantic regions was a fact, for which there were historical and cultural reasons, added to which the recent natural disasters provoked by Hurricanes Mitch and Felix, which had further served to devastate a major part of the economic infrastructure in the country. In terms of demographic trends, in recent years the morality rate had fallen considerably, with average life expectancy increasing from 42.2 years to 72.8 in the last five years. That change had been the fruit of many economic and social changes, in particular a growing urbanization of the population, and a concomitant rise in the quality of education and access to health care.
Education was a constitutional right that was provided to all Nicaraguans without discrimination of any kind, Ms. Martin Gallegos said. To that end Nicaragua had adopted the General Education Act of 2006 and the Regional Autonomous Education System (SEAR) which recognized the rights of the indigenous individuals and ethnic communities of the Caribbean Coast to intercultural bilingual education in both their mother tongue and Spanish. There was also a Bilingual Intercultural Education Programme, which facilitated access to various levels of education for the inhabitants of the Autonomous Regions of Nicaragua’s Atlantic Coast. The Government was currently implementing the Regional Autonomous Plan for 2003-2013, which established the overall strategy for education in the autonomous areas. That educational system was being implemented in 30 schools in four municipalities of that region. The languages that were being used to carry out bilingual education under the plan were Miskito, Ulwa, Creole and Garifuna.
Ms. Martin Gallegos noted that, as a result of the regulations pertaining to the Autonomy Statute of the two Regions of the Atlantic Coast of Nicaragua, the indigenous peoples and ethnic communities there enjoyed a large autonomy with regard to the political, administrative, economic and financial affairs in those areas. Those peoples could thereby effectively participate in the development and implementation of national plans and programmes for the development of their region. The autonomous status also allowed for the peoples of the region to administer their own health programmes, education, culture, transport and communal services in coordination with the relevant State Ministries. They could promote their own economic, social and cultural projects. They could make decisions on the use of their ecological, water and land resources and their historical, linguistic and traditional culture.
In the administrative sphere, the Office of the Human Rights Ombudsman had established a special office for the protection of indigenous peoples and ethnic communities, with permanent offices in each of the Autonomous Regions. That special office played a fundamental role in the protecting the rights of these groups, and in 2007, it had received 521 complaints from persons or groups in the Autonomous Region of the South Atlantic, Ms. Martin Gallegos said.
Moreover, the President had created the Development Council for the Atlantic Coast, headed by a member of that region of Creole heritage, which acted as a link between the central Government and regional governments and was conducting affairs in the interest of the peoples of the Autonomous Regions.
Finally, Ms. Martin Gallegos wished to underscore that, linked with measures taken by the Government in pursuit of human rights objectives was that of eradicating poverty through its Zero Hunger programme, directed at the most vulnerable in Nicaraguan society. To promote social and cultural rights, the Government had declared that education and health care would be free for all. Indeed, the Nicaraguan Government had made considerable progress towards multiculturalism and racial and ethnic pluralism, as noted in the report of the United Nations Special Rapporteur on contemporary forms of racism, racial discrimination, xenophobia and related intolerance, following his visit to Nicaragua in 2004
Oral Questions Raised by the Rapporteur and Experts
RÉGIS DE GOUTTES, the Committee Expert serving as country Rapporteur for the report of Nicaragua, began by noting that there was a 12-year gap between the presentation of Nicaragua's fourteenth periodic report today and the presentation of its last periodic report in 1995. Much had happened in Nicaragua in the intervening years. In February 2006, under its early warning and urgent action procedure, the Committee had received a petition by the indigenous community "Awas Tingni", whose members had complained of threats regarding their land ownership deeds, and the limitation of their lands and their traditional sacred sites, in the Atlantic Region of Nicaragua. In February 2007, the delegation of Nicaragua came before the Committee to furnish information regarding the case. However, in August 2007, the Awas Tingni community had once again presented a complaint and provided information of concern regarding its communal lands. What was the situation regarding the plan for demarcation of Awas Tingni land and the possible granting of permanent title to that land? What activities were being undertaken to protect the Awas Tingni from the groups that were hostile to their case and to the protection of their lands and religious sites?
Regarding refugees, according to the report the number of refugees of Salvadorian origin had decreased in recent years, but there still remained some 1,300 former Salvadorian refugees whose situation had not been regularized and who continued to live in the country in a precarious social situation. The report mentioned a draft law that sought to establish a National Commission for Refugees that would guarantee the rights of refugees and ensure that they were not subject to discrimination, and Mr. de Gouttes asked if that had been adopted yet.
Mr. de Gouttes said he would also appreciate more information on the law adopted in 2004 to reform the law controlling the circulation of migrants that transited through Nicaragua en route for the United States.
Noting the many legislative and other measures taken to implement the provisions of the Convention, Mr. de Gouttes said that it seemed there was still an underrepresentation of persons from indigenous communities and persons of African descent within the organs of Government, and notably in the government, parliament, and justice sector. Information provided by human rights groups had reported that only the Mesquito community was politically active in the Autonomous Regions today, within the Yatama party.
Regarding the status of the Convention in domestic law, Mr. de Gouttes understood that it was incorporated in domestic law and could be invoked in the courts. However, did it have priority over domestic law? What happened in the case of clashes between provisions of the Convention and Nicaraguan law?
Mr. de Gouttes had three principle areas of concern with regard to Nicaragua's implementation of the Convention. First, despite an absence of institutional racism and progress made in granting autonomy to the regions and the construction of a multicultural democracy, racial prejudice and discriminatory practices perpetrated against the indigenous community persisted as a legacy of Nicaragua's colonial past. Secondly, there was a deep ethno-socio-economic divide between the Pacific Regions, which were dominantly mestizo and fairly well developed, and those of the Atlantic, which were predominantly inhabited by indigenous peoples and those of African heritage, which suffered from poverty, isolation, economic and social marginalisation and a lack of access to health care. Thirdly, there was a major issue of the communal lands of indigenous peoples, owing to a lack of effective demarcation of their lands, the frequent incursion of their lands by colonizers, and the granting of licenses to exploit the forest and mining resources of those lands without consultation.
Mr. de Gouttes also asked for additional information on measures taken to combat prejudice and negative stereotypes that persisted in the media against indigenous peoples and those of African heritage and training programmes in human rights and interracial harmony for those involved in law enforcement.
Response by Delegation to Written Questions by Experts
Here, Ms. Martin Gallegos said that, while she would not go into details here on all the written responses the delegation was providing today, she would try and make some answers with regard to the Awas Tingni case. The Inter-American Court for Human Rights had decided against the Government of Nicaragua in the Awas Tingni case in a judgement handed down on 31 August 2001. That decision had four main provisions: it required the Nicaraguan Government to demarcate the land owned by the indigenous peoples, within 15 months; it ordered the payment of $50,000 in work or services, to be carried out in 20 months' time; it ordered the Government to pay the legal costs incurred by the community, within six months; and, finally, every six months the Government of Nicaragua was to report on progress made. The Government thereafter met with representatives of Awas Tingni to set up two commissions to carry out the decision: the first, was to carry out all works and services ordered to be undertaken; the second, was concerned with carrying out the process of demarcation and transfer of title.
Ms. Martin Gallegos explained that the new complaint that had been made by the Awas Tingni to the Committee in August involved that group's request that the intersectoral commission on demarcation and accordance of title settle its claim within the time frame established by the Inter-American Court, and had rejected that commission's decision on competing title claims by other indigenous groups. The Government had submitted those related conflicts to the autonomous Regional Council of the North Atlantic Region for adjudication. It issued a decision on February 2007 ratifying the decision of the federal commission, clarifying the overlapping claims. In July 2007 the process of demarcation had been started, with 12 markers already placed and 23 still to be placed. Now, the competing claims had been settled, and the process of handing over titles and the fulfilment of the other terms of the decisions had begun. It was expected that the demarcation process would be completed by July 2008.
Further Oral Questions Posed by Experts
Other Committee Experts then raised questions and asked for further information on subjects pertaining to, among other things, double discrimination faced by Creole women; the tradition of indigenous justice and how it was carried out; statistics on ethnicity broken down by the total population, rather than just of the indigenous community; a lack of congruity between the statistics provided in the report and those provided by non-governmental organizations and by the United Nations Special Rapporteur on racism; whether Nicaragua still considered itself the "Mesquito Nation"; and what sorts of evidence was allowed in deciding the demarcation of indigenous lands.
Replies by the Delegation
Responding to those questions and others, the delegation stressed that the priority task for the Government of National Reconciliation and Unity was to address poverty and the other social, cultural and economic rights of the people that had been ignored by the previous neo-liberal government. The Government wished to recognize its historical debt to the peoples of the Atlantic Coast, the Afro-Caribbean and indigenous populations there, and to ensure sustainable development for those groups. Programmes such as Zero Hunger were examples of the Government's commitment in that regard, as were measures taken by the Government to create a favourable climate for investors in those sectors.
Regarding the question put about the country's image of itself, the delegation said that Nicaragua was proud of its roots, and saw itself as a multi-ethnic, multi-racial nation whose primary message for its population was one of reconciliation, solidarity, and equality for all.
As for concerns expressed by the Committee regarding violent crime in Nicaragua, the delegation said that it did not share the Committee’s view. Indeed, Nicaragua had one of the lowest crime rates in all of Central America. The phenomenon of “maras”, or youth gangs, which afflicted its neighbouring countries, was not known in Nicaragua.
In terms of new developments regarding immigration, the delegation said that the law on refugees had not been adopted yet, but was the subject of ongoing consultations in the legislature. For migrants, the new law on the circulation of migrants would provide new avenues to obtain legal status in Nicaragua, including through de facto marriage (proof of two years' cohabitation). In addition, Nicaragua was working actively to put in place a bi-national agreement with Costa Rica on migrational flows that would ensure the rights of migrant workers. The agreement sought to implement a policy of regularization of migratory workers and the promotion of their insertion in the receiving country. To that end, a number of offices had already been set up in towns throughout Nicaragua to assist migrants, to inform them of their rights, and to help in regularizing their situation, if they were in the country illegally.
As for the ratification of ILO Convention No. 169 on indigenous and tribal peoples, the delegation said that a series of steps had been taken since 1996 with a view to ratifying that instrument. A draft bill had been elaborated to ratify the treaty, but it had been withdrawn from the Legislative Assembly. The bill was currently with the competent ministries, including the Ministry of Labour, and studies remained to be undertaken to assess the compatibility of the Convention with national legislation.
In response to a question about the rural judicial facilitators, the delegation explained that they were part of a programme to ensure access to justice in rural areas. The rural faciliator was an auxiliary judicial staff mandated to advise the inhabitants of rural communities, to undertake mediation where possible, and to facilitate other legal proceedings where necessary. Today, there were 627 such facilitators, 20 per cent of whom were women, working in the poorest townships in Nicaragua.
On the status of the Convention in domestic law, the delegation said that all duly ratified international conventions were incorporated in domestic law and had an equal status with other laws. Any conflicts between the Convention and the internal laws of Nicaragua would have to be harmonized by either amending the domestic law or taking a reservation to the Convention. It was for that reason that the Government undertook stringent reviews of legislation before it ratified any international instruments.
The Government of National Reconciliation and Unity had supported the adoption of the International Declaration on the Rights of Indigenous People and continued to support its principles, the delegation said.
The Ombudsman's Office had set up an investigatory procedure that could respond to complaints or bring investigations on its own initiative. In February 2008, the Ombudsman's Office had received a notice from the Office of Finance authorizing the establishment of the new Special Offices for the promotion and protection of indigenous rights.
With regard to the definition of racial discrimination, the delegation explained that, following recent amendments, the Criminal Code now contained a broad definition of discrimination, setting out criminal sanctions for acts of discrimination that could be either sentences of imprisonment or fines. In addition, under another provision, anyone who blocked or impeded the exercise of a right or power in the Constitution on any grounds, including discrimination, was subject to criminal sanctions, including a prison sentence for up to one year. The definitions in place in Nicaraguan law effectively covered all the provisions set out in the International Convention on the Elimination of all Forms of Racial Discrimination. Moreover, discriminatory motives could be considered aggravating circumstances under criminal law.
As for the Inter-American Human Rights Court ruling on the Yatama case, that decision was being complied with, the delegation affirmed. It should be understood that reform of the electoral law was a complex process, which had to be harmonized with Constitutional law on the law on amparo, and it required time. The Government had set up an institutional working group to study the law reform required, including members from the Ombudsman's Office, the Ministry for Foreign Affairs, and others. An electoral reform bill had already been drafted, as well as a bill to amend amparo proceedings.
Regarding law enforcement and issues of discrimination, the delegation noted that the police had its own internal procedures to deal with complaints of human rights violations by its officers. In addition, the Ombudsman for Human Rights was conducting training session to raise awareness among law officers of human rights. In June 2007 the Ministry of the Interior trained immigration officers, police officers, heads of units and all those working at border points and airports. There was also human rights training for auxiliary police officers. In the prison system, a human rights training programme had been in place since 2006.
As for the educational programmes in the indigenous regions, major progress had been made in Bluefields (the administrative seat of the South Atlantic Autonomous Region) to institute teaching in the different languages and develop textbooks in indigenous languages. There were already fifth and sixth grade texts, as well as multigrade texts, but these had not been used yet. Decentralization of the education system in Autonomous Regions was essential for implementing the Regional Autonomous Education System
Further Remarks by Experts
In a second round of comments, an Expert asked a number of questions about the legal system for the Regional Autonomous Communities, including whether the judges were from those communities and how many translators and interpreters were working in the courts.
Response by Delegation
Responding to those questions and others, the delegation said there was a committee to ensure follow-up to the Durban Declaration and Plan of Action, headed by the Ombudsman for Human Rights. The decisions of the committee had been carried out by the Ombudsman, in conjunction with civil society organizations.
As for the differences between the Creole and the Garifuna, the delegation noted that the Garifuna had long made efforts to preserve their characteristics and culture and were thus the purer of the two groups. The descendants of slaves, the Garifuna had tried to remain true to their origins and not mix with other communities on the coast.
In terms of the working of the legal system for peoples of the Autonomous Regions, the delegation confirmed that it was against the law for an individual to be prevented from bringing a complaint or speaking in court in their mother tongue. If the State was not in a position to pay for an interpreter, the State or judicial authority could bring along one of the community leaders to provide free interpretation. But it was always ensured that the parties to legal hearings had interpretation of one form or another.
Preliminary Concluding Observations
In preliminary concluding observations, RÉGIS DE GOUTTES, the Committee Expert serving as country Rapporteur for the report of Nicaragua, thanked the delegation for their replies and comments, which had been sincere and frank, in particular with regard to the problems faced by Nicaragua’s indigenous population and the population of African descent, the persistence of racial stereotypes in the society, and the lack of access to health services in the Autonomous Regions of the North Atlantic.
The Committee had a number of concerns based on information received from non-governmental organizations and other civil society organizations, Mr. De Gouttes continued. The Committee’s concluding observations might include recommendations on the fact it was essential that Nicaragua, as a multi-cultural, multi-ethnic country, establish a comprehensive programme for the advancement of the Afro-descendant and indigenous communities, that it develop a national strategy to combat racism, and that a new relationship between the State and those groups be forged, including via greater institutionalization of the regional autonomy process. There was also a need to set up new branches of the Ombudsman’s office in the Central and Northern Regions, and to provide information on the effectiveness and scope of the 2007 Anti-Racism Act.
The Committee would also renew its recommendation that ILO Convention No. 169 be ratified, and that Nicaragua consider making a declaration under article 14 of the Convention on the Elimination of Racial Discrimination recognizing the Committee’s competence to review individual communications concerning alleged violations by the State party under the Convention, Mr. de Gouttes said.
The concluding observations would also make a number of requests for information to be provided in the next periodic report, including on the question of the protection of community land rights, demarcation of indigenous lands, protection of indigenous sacred sites, and the rights of indigenous persons in the face of grants to mining or forestry companies. Additionally, updated information on the Awas Tingni community would be requested, as would further information regarding the participation of indigenous populations in the political process, both regionally and nationally, Mr. De Gouttes concluded.
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CERD08009E