Colombia is home to over 80 indigenous communities, each with their own dialects and judicial authorities. The year of 1991 represents a landmark for them, since it was the year when a new Constitution was established, in which the diversity of cultures was acknowledged, and their protection was referred to. Various other pieces of legislation have followed that further specify the ways in which indigenous populations have had to be increasingly incorporated into the national system. Especially the 1996 Act No. 270 of the Statute of the Administration of Justice, given that it placed the justices of peace and the jurisdiction of the various indigenous communities within the Judicial Administration structure.
Nonetheless, managing the difference between the rules of the national judicial system and those of the indigenous judicial systems has been a challenge in the absence of a law on coordination (also foreseen by the 1991 Constitution). This challenge places indigenous groups in vulnerable circumstances, especially in those cases where the two jurisdictions clash. A law allowing for the coordination of over 80 indigenous groups, considering their unique differences, whilst being sufficiently operative to settle disputes, proved difficult to obtain. Adding to the complexity is the widespread armed conflict that has been part of the country’s history for the past five decades. National security forces often enter territory without indigenous approval, undertaking operations that sometimes bring the conflict dynamics into these communities.
The disparities between the different systems of carrying out justice turned collaboration between the national authorities and the indigenous authorities necessary. Building on the various types of legislation in place to promote the respect and protection of the indigenous populations, in 2004 the Higher Council of the Judiciary, in partnership with the National Indigenous Organisation of Colombia, and the Association of the Indigenous Council in the North of Cauca, developed the programme “Support to the Coordination between the Special Indigenous Jurisdiction and the National Judicial System”. The aim was to foster mutual knowledge of the two systems and the new legislation, and to promote coordination, in order to improve the access of indigenous communities to basic justice services. The programme was co-funded by the Inter-American Development Bank and the Higher Council of the Judiciary, with resources having been provided by the Special Japanese fund.
The programme had five main components:
- An intercultural educational training that brought together the justice officials of the national system and those of the indigenous system to learn about each other’s modus operandi, including norms and processes, as well as to identify needs.
- The establishment of a system of data collection to document and report on the different decisions of each jurisdictional body, in order to better understand how the other works. Respect for the customs of each community was respected through establishing voluntary participation in the process of contributing data.
- Development of a jurisdiction map covering all judicial systems, the competent authorities, and the services offered.
- Consultation of the population at the national level, to assess their opinion about the results and successes obtained, and contributing to the identification of the future financial needs of the programme.
- A national workshop with the participation of the Organization of American States (OAS) to present the results and discuss relevant issues concerning the Special Indigenous Jurisdiction.
Finally, an Advisory Committee for the Programme was created as an accountability mechanism that was in charge of overseeing the accuracy and effectiveness of implementation.
The main lesson from the Colombian process is that coordination can be enabled in practice, even if legal regulations are absent. The programme “Support to the Coordination between the Special Indigenous Jurisdiction and the National Judicial System” was successful in facilitating mutual system knowledge, and in promoting interaction between actors of the formal and of the indigenous justice systems. It also succeeded - through the consultations – in sensitising other relevant stakeholders such as the security forces and the private business sector towards the need to respect both jurisdictions. The transversal intercultural component of the programme contributed to the creation of a culture of jurisdiction collaboration and coordination previously inexistent. An iconic example of this is a sentence by the Constitutional Court – related to the Vencedor Piriri-Guamito y Matanegra Indigenous Reservation – stipulating that prior consultation of the indigenous authorities is mandatory before private extraction companies enter their territory.