Wednesday, September 15, 2010
Friday, September 3, 2010
HUMAN RIGHTS OF AFRO-DESCENDANTS IN LATIN AMERICA AND THE CARIBBEAN: THE REALITIES
THE CARIBBEAN COUNCIL OF LEGAL EDUCATION FIFTH DR THE HONOURABLE LLOYD BARNETT, OJ. DISTINQUISHED LECTURE SERIES
Lecture by Sir Clare K. Roberts, QC
HUMAN RIGHTS OF AFRO-DESCENDANTS IN LATIN AMERICA AND THE CARIBBEAN: THE REALITIES
Introductory
I consider it a signal honour to have been asked to give this lecture in the series of lectures dedicated to Dr the Honourable Lloyd Barnett, OJ. To say that Dr Barnett is a legal luminary or an eminent constitutional lawyer would not do him justice. I have to say that Dr Barnett is a giant among legal luminaries and eminent jurists. He was founding a member of the Council and a former chairman. Dr Barnett has been a member of just about every committee set up by the Council and chaired nearly all of them. He will forever be identified with the Council’s Committee on Legal Training and its Review Committee. Dr Barnett is recognized in his beloved Jamaica, regionally and internationally as a leading human rights lawyer and activist. He leads the Independent Jamaica Council on Human Rights. His sound and wise reasoning has influenced many other areas of law across the region and the Commonwealth. I speak for all of us who have benefited from Lloyd’s dedication to legal education in the region and, if permitted, for the Council and people of the region when I record our heartfelt appreciation for his herculean efforts over so many years.
I congratulate the Council of Legal Education on approaching its 40th anniversary of its founding. The Council can look with pride on the graduates it has produced each year since 1975 when that first batch of us, the guinea pigs were foisted on society. I am happy to report that the graduates of the Council of Legal Education have distinguished themselves and taken their places at the highest levels. We only have to look around this room to have the evidence – there are chief justices, attorneys general and other prominent lawyers all produced by the Caribbean Council of Legal Education. You will forgive me for singling out our own Ms E. Ann Henry, Chairman of Council. I can claim her as a fellow graduate of the CLE and also as a fellow Antiguan but my wife can also claim her as a Virgin Islander, they both having been born in the British Virgin Islands.
I would also like to thank the organizers of this Lecture Series for inviting me to give this Lecture. The arrangements have been excellent. Mrs Kathleen Rochford and her staff are skilled and diplomatic in ensuring that Lady Roberts and I are well accommodated. Incidentally today is the birthday of Lady Roberts. Your invitation on the one hand relieves me of having to think of where to take her for her birthday; on the other hand the pressure on me is increased by having my chief critic listen to me and on her birthday at that!!
About the Lecturer
I think it fitting that you should know a little about me so that you can have some insight as to why I was presumptuous enough to have accepted the invitation to give this lecture today. By way of introduction, I was a member of that first class that started the ball rolling in 1973 although the Council had been in existence since 1971 planning its curriculum, hiring staff, seeing to accommodation and the myriad of things necessary to start to train lawyers. When Hugh Wooding Law School opened its doors I was in that first batch.
In respect of the lecture tonight I was a member of the Inter American Commission on Human Rights from 1st January 2002 until December 31st 2009. I served as a Commissioner for 8 years and I am a former president of that organization. More relevantly, during my stint on the Commission I was the first Rapporteur for the Rights of Afro-Descendants and Against Racial Discrimination and Racism. I will speak more about the rapporteurship later. As Rapporteur, I spearheaded the Inter American Commission on Human Rights’ focus on improving the lot and protecting the human rights of the Afro-descendants in our hemisphere. When I speak of human rights I am not just dealing with civil and political rights but also economic social and cultural rights of black people in this hemisphere. I have spoken in different fora on the topic. I have also visited Afro-descendants in their abodes – in Brazil, Columbia, Costa Rica, the United States, Canada and the Caribbean including Haiti and I contributed to the recently published report by the Commission on the plight of Afro-Columbians. I have been involved with the post Durban activities in the region against racial discrimination and I participated in the UN World Conference in Geneva to review the implementation of the Durban plan. I write a blog called the simple and direct, “Afro-Descendants Unite”.
The title of my lecture is Human Rights of Afro-Descendants in Latin America and the Caribbean: the Realities.
Afro-descendants in Latin American and the Caribbean
The first reality that struck me very early after I started work as Afro-Descendants Rapporteur on the Commission, was that there was a serious lack of awareness of the existence of Afro descendants in the region. It is estimated that there are some 150 million Afro descendants in Latin America out of a total population of say 590 million. Some say that Afro-descendants account for a third of the population of Latin America and the Caribbean. There are large populations of Afro- descendants in Brazil, Columbia, Peru, Honduras, Nicaragua, Costa Rica, Panama, Dominican Republic, Haiti, Cuba and the rest of the Caribbean. However there is not the awareness of the existence of each other. So the Afro-Descendants in the Caribbean are surprised to learn that there are large populations of people like themselves in many countries of Latin American and vice versa. Let us take Brazil. Brazil has more people of African descent than any country in Africa except Nigeria, making Afro-Brazilians the second largest population of Africans on the planet. Brazil alone has some 89 million Afro-descendants. The United States of America has the second largest population of Afro-descendants in the Hemisphere but it is quickly followed by Colombia. Cuba and the Dominican Republic also have significant Afro-descendant populations as does Peru, El Salvador, Honduras, Costa Rica and Venezuela.
The reason why we not aware of the numbers of black people living in Latin America is due to a deliberate attempt on the part of these countries to portray an image that they are white countries and to deny the reality of racial diversity within their borders. For instance, if you watch the television in these countries you would not see black people portrayed. There is a conspicuous absence of colour. There is usually not even a token black in the advertisements. Blacks are neither in front of the camera nor behind the camera. Even Latin TV networks in the United States are guilty of the same conduct.
Problems with the count
Unlike in the United States of America where once you have a drop of black blood in you, you are considered black, in Latin America, if you have a drop of white blood in you, you can choose to be white. So this self-identification causes problems with the numbers. Brazil, for example, is said to be between 45% and as high as 65% Black. In Columbia there is conflicting information on the exact size of the Afro-Colombian population. The Government relies on statistics that suggest that Afro-Colombians comprise 10.5 percent of the population, or just under 4.3 million. However many Afro-Colombian organizations estimate the number at 26 percent or near 11 million. Part of the reason for the difference in the figures has to do with relying on self-identification in areas where “being black” is still strongly stigmatized.
If asked to identify, individuals tend to call themselves white or miztiso or mullato – anything but black. And this makes practical sense. Why declare yourself to be black to face a life of poverty, ignorance, exclusion and discrimination. You would have given yourself a better chance at a decent life just by calling right.
Let me give you an example of how orchestrated the policy of portraying a white image is in Latin America. In Bahia, Brazil, where the largest concentration of Afro-descendants exists, an Afro-descendant father reported to me the difficulty he had in giving his children African names. He informed me that the Brazilian authorities rejected the African names but because he was enlightened and passionate about his race, he insisted. Racial pride – the “I am Black and I am Proud” movement has not reached most of the Latin American countries where Blacks are to be found.
So there is no unified approach in facing the many problems that beset the black population of the region. The old adage that there is strength in unity is true of the situation but lost on the Afro-descendants of region. And that contributes to the invisibility of black people in the region.
In his book Afro-Latin America,George Reid Andrews points out that, “The racial democracy writers of the 1930s and 1940s had assured their fellow citizens that Latin America was racially egalitarian and free of prejudice and discrimination that so deformed life in the United States. For several decades, Latin Americans, including many black and brown Latin Americans, had believed and accepted this message. But as the evidence refuting it mounted and accumulated in the lives of Afro-Latin Americans, they finally demanded that the societies of the region acknowledge that racial democracy was in fact a myth”.
Land Rights
In dealing with the realities of the state of the human rights of Afro-descendants in the region, one cannot overlook the fact that their land rights are being disrespected. The Afro-descendants share this problem with the indigenous peoples of the region. The issues here have been dealt with in two reports which I commend to you. The reports are Unfulfilled Promises and Persistent Obstacles to the Realization of the Rights of Afro-Colombians – by University of Texas Faculty of Law in 2007, dealing with Law 70 of Columbia; and fresh off the press, The Duty To Protect Indigenous Communal Property Rights Over The Land, Territories, And Natural Resources by the Inter American Commission on Human Rights. This last study by the Commission comes with an annex called “Guidelines with regard to the State’s Duty to Consult with respect to Development Projects that May Affect the Rights of Indigenous Peoples”. These guidelines were adopted by the Inter-American Commission on Human Rights. Permit me to quote from the Commission’s report –
The relationship between indigenous peoples and their lands, territories, and natural resources is a key factor for the material subsistence and for the preservation of the identities and cultures of these peoples, and the enjoyment of their political, social, economic, and cultural rights in the Americas, and the rest of the world. This special relationship has been widely recognized in international human rights law, including specific instruments on the rights of indigenous peoples such as the United Nations Declaration on the Rights of Indigenous Peoples (United Nations Declaration) , and Convention No. 169 of the International Labour Organization (ILO) on indigenous and tribal peoples in independent countries (Convention No. 169).
I submit that the same applies to the Afro-descendants.
Civil Rights Movement Nascent
The United States of America went through its civil rights movement in the 1960’s. Great men and women came forward to lead the movement and drive it. You know the cast well -– Martin Luther King, Thurgood Marshall, Stokely Carmichael, Malcolm X, Angela Davis and I would add Mohamed Ali, to name a few of the civil rights leaders. The civil rights movement in the rest of the Americas is barely nascent. And this is part of the problem. The leadership has not come forward as yet; therefore the movement is barely nascent at this time. There is not then the pride in being black. There is no telling of the story of the proud ancestry of Afro-descendants – that they are not descendants of slaves but rather descendants of Africans who were enslaved. That their history and lineage go back well before the unfortunate era of slavery. Therefore the curricula of the people of African descent do not take into account their African background. For example in Columbia I met with the Columbian education minister and asked her whether the school curricula took any account of the significant African Colombian population and she confessed they had not but indicated that she would look into it. I have to tell you that Columbia has made strides in correcting the situation.
Invisibility
When you are invisible, you are neglected. If you are invisible, it means that you do not exist, you are then denied your share of the wealth of the nation, you are denied proper health care, proper education and housing, and your land rights are trampled upon.
I will give you an example of what I mean. I visited Brazil in 2005 and 2006 and was appalled at the condition of the Afro- descendants and Indigenous people in the Quilombo regions. I asked the leadership how could it be that a country as wealthy as Brazil could have some of its citizens living in that condition. The conditions were as bad as those suffered by the people of Haiti. Ironically at the same time there was an art exhibition in Bahia entitled Brazil/Haiti. From the paintings it was impossible to detect which sceneries of sheer poverty were of Haiti and which were of Brazil. These conditions of degradation and neglect among Afro-descendants can be found in all parts of Latin America.
The Caribbean
Cuba
The prevailing view of race in Cuba follows the official propaganda in assuming that racial discrimination in the island is practically non-existent. However the reports coming to the Commission paint a different picture. In a book called The Open Wound –The Scourge of Racism in Cuba from Colonialism to Communism - Ivan-Cesar Martinez, analyses what he calls “the ideology of White supremacy”. He states that his work “is intended to serve as a tool to eradicate this terrible scourge by demystifying the so-called color blindness of Cuban society by showing clearly the existence of a hierarchical color-structure of power that has never changed and that keeps the majority of the population – Cubans that have been sentenced for the crime of having been born with a darker skin color- at the bottom of the society, permanently excluded and reined in” . Martinez points to a study by the Havana Center of Anthropology, a governmental agency, that found that “white Cubans continue to believe in black intellectual inferiority, inferior values , inferior culture, inferior decency and they are opposed to racial intermarriage much more than in the United States. White Cubans are more racist today, after five decades of socialism, than white Americans who were the world champions of racism four decades ago” Racism is alive and well in Cuba today.
Dominican Republic
The Dominican Republic like Venezuela and other Latin America countries are engaged in whitening their society. In Reversing Sail (A History of the African Diaspora), Michael A. Gomez states, “Race in the Dominican Republic highlights the extent to which it is an arbitrary and politicized concept, and it is significantly conditioned by Haiti; the fear of being labelled a Haitian led many to undervalue their African heritage. Sixty percent of the country is of mixed ancestry, but those of the upper class are classified as white, illustrating the principle that class ”whitens” throughout and 12 percent of the “purer” African ancestry are invariably poor” .
The English Speaking Caribbean
There is a notion among Afro-descendants of the English Speaking Caribbean that there are no serious issues of racial discrimination in their countries. This is far from the truth. There is in all of the islands what I call “shadism” where the lighter your skin, the higher up the economic ladder you will be. Racial profiling is also prevalent in the islands where, for example, unequal treatment is meted out to black tourists by black hospitality workers. In a recent incident that was brought to my attention a group of offshore medical students went to a night club to celebrate the birthday of one of them. Seven white students were allowed to pass without incident but there was a marked difference in the treatment of the eighth student who happened to have been a black Bahamian and the one whose birthday was being celebrated. He was pulled aside by a female black woman who declared that she was a police officer and began to push and pull the black student, tearing his shirt in the process. He was denied entry although he had paid and had his band on his wrist as evidence and he was cursed and embarrassed for committing the crime of being of a dark skin-colour. I am convinced that the thesis of Na’im Akbar that he expresses in his essay, Breaking the Chains of Psychological Slavery accounts for phenomenon of shadism in the English speaking Caribbean. Deep psychological damage of slavery still influences our conduct towards other blacks.
WHY
As I asked of Brazil so must I ask of the rest of Latin America, why do we still have a particular set of our citizens living in conditions of squalor? How is it that in all of the Latin American countries where Afro-descendants exist, they find themselves at the bottom rung of the economic ladder and excluded from participation in government? Why is it that as declared by the participants at the Conference of Black Parliamentarians in Costa Rica (which I attended) that “millions of Afro-descendant children born today are more likely to go to jail than to a university, to be in the streets instead of in school, to work in the informal economy rather than to develop their talents, and to be excluded from exercising their rights as first-class citizens.” Why do African descendants in Latin America live in impoverished conditions while having unequal access to education, employment, healthcare, and housing?
I can find only one answer: discrimination.
What Can and Should Be Done
I use Brazil as an example of what can and should be done to change this picture to bring about a new reality for the Afro-descendants of the region. Under President Lula, Brazil started with the admission that it had a problem. It moved from what was called “racial democracy” - from the idyll that there was perfect racial harmony in Brazil to a realization that there was racial injustice caused by racial discrimination. It came to the realization that Brazil was not a white country but a racially diverse country. The President held a series of consultations on race in the provinces culminating in a national conference on race relations. He invited me to attend that conference and I did. It was a wonderful convergence of people of all races in Brazil. It was a catharsis for the nation. President Lula himself made trips to Africa and re-established the African origins of the majority of Brazil’s population. Most notably, Brazil was the first country to have established a government agency to work on social inclusion and racial equality, called SEPPIR (Special Secretariat for the Promotion of Racial Equality). Furthermore, under the President Luiz Inácio Lula da Silva, four Afro-Brazilians were appointed to cabinet-level positions in the government and one to the Supreme Court.
The other positive was the effect of the preparation for the United Nations World Conference on Racism held at Durban, South Africa in 2001, the conference itself and the post conference activities. The Conference adopted the Durban Plan of Action.
the Rapporteurship on the Rights of Afro-Descendants and Against Racial Discrimination and Racism
One of the products of the Durban Conference was that the Inter American Commission on Human Rights established the Rapporteurship on the Rights of Afro-Descendants and Against Racial Discrimination and Racism early in 2005. Brazil could be said to have been the midwife of Rapporteurship through its advocacy in the OAS and by providing the operational funds. I was given the duties of the first Special Rapporteur. The Rapporteurship was charged with stimulating, systematizing, reinforcing and consolidating the actions of the Inter-American Commission in support of the rights of people of African descent and against racial discrimination. The core objectives of the Special Rapporteurship included working with OAS member States to generate awareness of the States’ duty to respect the human rights of Afro-descendants and on the elimination of all forms of racial discrimination; to analyze the challenges that confronted countries of the region in this area; to formulate recommendations designed to overcome those obstacles; to identify and share best practices in the region with respect to this matter, and to provide the technical assistance requested by member States in the implementation of the recommendations in national law and practice.
The Rapporteurship undertook an advisory role and carried out its activities in the area of promotion and protection of the rights of Afro-descendants. I draw your attention to the Annual Reports of the Commission since 2006 for a report on the activities of the Rapporteurship since its inception. . In December 2008 and following on a visit I made to Columbia in May 2007, the Rapporteurship approved a report entitled, “Observations of the Inter-American Commission on Human Rights on the Rights of Afro-descendants and Racial Discrimination in Colombia.” This report was the first thematic report prepared by the Rapporteurship on the problem of racial discrimination with respect to the Afro-descendant population in Colombia. I however must say that I found that the Commission and the OAS itself needed the services of the Rapporteurship as much as the States. The situation with respect to Afro-descendants within the Commission and the OAS reflected the situation in the Member States. The same lack of inclusion was present. The Commission and the OAS are what one author calls “White territories”. In a word there is a startling absence of people of colour in the institutions. For example, in the Commission there was one Black lawyer of the 36 lawyers working for the Commission and the present Commission is now all white with my departure. There is a need for a conscious effort to bring about more racial balance in the Commission, that is, among commissioners, lawyers and support staff and indeed in the OAS generally. You will not find this in the Commission’s reports.
Regional Convention Against Racism
The Rapporteurship also provided technical support the Working Group of the Committee for Juridical and Political Affairs of the permanent Council of the OAS that is charged with drafting a new regional instrument , the Inter-American Convention against Racism and All Forms of Discrimination. I ask you to pay special attention to the drafting of this new instrument. The instrument is of particular significance as I feel that the process of drafting the instrument provides an opportunity to bring the issue of discrimination in the region to the front burner. It seems to me that the drafting committee is moving in the direction of widening the scope of the Convention to deal with all forms of discrimination and intolerance to such an extent that the original focus is being lost. The emphasis on racism has been diluted to such an extent that it will be necessary to begin the process again to take care of one of the region’s most pernicious problems – racism.
Affirmative Action
In looking at what should be done to redress the dire situation of Afro-descendants in the region we have to give serious consideration to affirmative action. In an article entitiled “Affirmative Action in Brazil: Challenges and Prospects” Flávia Piovesan gives an overview of the theory and practice of affirmative action in Brazil. She points out that …” the right to redistribution of wealth requires measures to change social and economic structures combined with redistribution policies to fight economic injustice, marginalization and economic inequity.” In response to her question, How should we handle the problem of discrimination? She stated
Within the scope of International Human Rights Law, two strategies stand out: a) the repressive-punitive strategy, which aims at punishing, banning, and eliminating discrimination; and b) the promotional strategy, which aims at promoting, fostering, and advancing equality.
The repressive-punitive approach seeks to speedily eradicate all forms of discrimination. Fighting discrimination is fundamental in the process of guaranteeing full exercise of civil and political rights, as well as social, economic, and cultural rights”.
But Pievesan continues, “The ban on discrimination must be coupled with compensatory policies that can promote quicker achievement of equality… It is essential that promotional strategies be adopted to help socially vulnerable groups to join and participate fully in social spheres…...
In that regard, affirmative action stands out as a powerful tool for social inclusion. Affirmative action consists of special and temporary measures that are designed to redress a history of discrimination by accelerating the process of promoting equality. It reaches the substantive equality of vulnerable groups such as, for instance, ethnic and racial minorities and women.
Affirmative actions, as compensatory policies aiming at relieving and redressing the results of a past of discrimination, fulfill a decisive public purpose in the democratic process: they ensure social diversity and plurality. They should be understood both from the retrospective viewpoint – as they alleviate the burden of discriminatory past – and also from the prospective viewpoint – as they foster social change and bring forth new circumstances. They are concrete measures that turn the right to equality into something feasible, based on the notion that equality should take the shape of respect for difference and diversity. Affirmative action converts formal equality into material and substantive equality. I could not have put it any better.
Haiti
I could not at this time talk about Afro-descendants in the region and not address Haiti. I was the country rapporteur for Haiti for the past 8 years and on my many trips there I stayed at the Montana Hotel that was flattened by the earthquake 7 months ago. Haiti has been a Chapter 4 country for many years. A Chapter 4 country is one where the human rights situation is so bad that the country is placed in Chapter 4 of the annual report of the Commission for special attention. The current chapter 4 countries are Haiti, Columbia, Venezuela and Cuba. Most first-time visitors to Haiti declare that it is a life-changing experience. It has been said that Haiti is a country trying to move from misery to poverty. The earthquake tragedy would have set Haiti back to misery again. The Commission saw its role before the earthquake as being to keep the International Community interested in assisting Haiti. I urge support and a commitment to rebuild Haiti so that it can take its rightful place among the nations of the hemisphere.
END
I end by urging the Council of Legal Education to continue its work of producing lawyers with conscience. Lawyers who would see their role as not just accumulating wealth but ensuring that there is justice for all and particularly the discriminated in the Caribbean and the region. In a word, to follow the example of Dr the Honourable Lloyd George Barnett, OJ. It is a good work but dare I suggest that the Council redoubles its efforts in this regard over the next 40 years.
Thank you.
Sir Clare Kamau Roberts, QC
2010 –09 -02
Lecture by Sir Clare K. Roberts, QC
HUMAN RIGHTS OF AFRO-DESCENDANTS IN LATIN AMERICA AND THE CARIBBEAN: THE REALITIES
Introductory
I consider it a signal honour to have been asked to give this lecture in the series of lectures dedicated to Dr the Honourable Lloyd Barnett, OJ. To say that Dr Barnett is a legal luminary or an eminent constitutional lawyer would not do him justice. I have to say that Dr Barnett is a giant among legal luminaries and eminent jurists. He was founding a member of the Council and a former chairman. Dr Barnett has been a member of just about every committee set up by the Council and chaired nearly all of them. He will forever be identified with the Council’s Committee on Legal Training and its Review Committee. Dr Barnett is recognized in his beloved Jamaica, regionally and internationally as a leading human rights lawyer and activist. He leads the Independent Jamaica Council on Human Rights. His sound and wise reasoning has influenced many other areas of law across the region and the Commonwealth. I speak for all of us who have benefited from Lloyd’s dedication to legal education in the region and, if permitted, for the Council and people of the region when I record our heartfelt appreciation for his herculean efforts over so many years.
I congratulate the Council of Legal Education on approaching its 40th anniversary of its founding. The Council can look with pride on the graduates it has produced each year since 1975 when that first batch of us, the guinea pigs were foisted on society. I am happy to report that the graduates of the Council of Legal Education have distinguished themselves and taken their places at the highest levels. We only have to look around this room to have the evidence – there are chief justices, attorneys general and other prominent lawyers all produced by the Caribbean Council of Legal Education. You will forgive me for singling out our own Ms E. Ann Henry, Chairman of Council. I can claim her as a fellow graduate of the CLE and also as a fellow Antiguan but my wife can also claim her as a Virgin Islander, they both having been born in the British Virgin Islands.
I would also like to thank the organizers of this Lecture Series for inviting me to give this Lecture. The arrangements have been excellent. Mrs Kathleen Rochford and her staff are skilled and diplomatic in ensuring that Lady Roberts and I are well accommodated. Incidentally today is the birthday of Lady Roberts. Your invitation on the one hand relieves me of having to think of where to take her for her birthday; on the other hand the pressure on me is increased by having my chief critic listen to me and on her birthday at that!!
About the Lecturer
I think it fitting that you should know a little about me so that you can have some insight as to why I was presumptuous enough to have accepted the invitation to give this lecture today. By way of introduction, I was a member of that first class that started the ball rolling in 1973 although the Council had been in existence since 1971 planning its curriculum, hiring staff, seeing to accommodation and the myriad of things necessary to start to train lawyers. When Hugh Wooding Law School opened its doors I was in that first batch.
In respect of the lecture tonight I was a member of the Inter American Commission on Human Rights from 1st January 2002 until December 31st 2009. I served as a Commissioner for 8 years and I am a former president of that organization. More relevantly, during my stint on the Commission I was the first Rapporteur for the Rights of Afro-Descendants and Against Racial Discrimination and Racism. I will speak more about the rapporteurship later. As Rapporteur, I spearheaded the Inter American Commission on Human Rights’ focus on improving the lot and protecting the human rights of the Afro-descendants in our hemisphere. When I speak of human rights I am not just dealing with civil and political rights but also economic social and cultural rights of black people in this hemisphere. I have spoken in different fora on the topic. I have also visited Afro-descendants in their abodes – in Brazil, Columbia, Costa Rica, the United States, Canada and the Caribbean including Haiti and I contributed to the recently published report by the Commission on the plight of Afro-Columbians. I have been involved with the post Durban activities in the region against racial discrimination and I participated in the UN World Conference in Geneva to review the implementation of the Durban plan. I write a blog called the simple and direct, “Afro-Descendants Unite”.
The title of my lecture is Human Rights of Afro-Descendants in Latin America and the Caribbean: the Realities.
Afro-descendants in Latin American and the Caribbean
The first reality that struck me very early after I started work as Afro-Descendants Rapporteur on the Commission, was that there was a serious lack of awareness of the existence of Afro descendants in the region. It is estimated that there are some 150 million Afro descendants in Latin America out of a total population of say 590 million. Some say that Afro-descendants account for a third of the population of Latin America and the Caribbean. There are large populations of Afro- descendants in Brazil, Columbia, Peru, Honduras, Nicaragua, Costa Rica, Panama, Dominican Republic, Haiti, Cuba and the rest of the Caribbean. However there is not the awareness of the existence of each other. So the Afro-Descendants in the Caribbean are surprised to learn that there are large populations of people like themselves in many countries of Latin American and vice versa. Let us take Brazil. Brazil has more people of African descent than any country in Africa except Nigeria, making Afro-Brazilians the second largest population of Africans on the planet. Brazil alone has some 89 million Afro-descendants. The United States of America has the second largest population of Afro-descendants in the Hemisphere but it is quickly followed by Colombia. Cuba and the Dominican Republic also have significant Afro-descendant populations as does Peru, El Salvador, Honduras, Costa Rica and Venezuela.
The reason why we not aware of the numbers of black people living in Latin America is due to a deliberate attempt on the part of these countries to portray an image that they are white countries and to deny the reality of racial diversity within their borders. For instance, if you watch the television in these countries you would not see black people portrayed. There is a conspicuous absence of colour. There is usually not even a token black in the advertisements. Blacks are neither in front of the camera nor behind the camera. Even Latin TV networks in the United States are guilty of the same conduct.
Problems with the count
Unlike in the United States of America where once you have a drop of black blood in you, you are considered black, in Latin America, if you have a drop of white blood in you, you can choose to be white. So this self-identification causes problems with the numbers. Brazil, for example, is said to be between 45% and as high as 65% Black. In Columbia there is conflicting information on the exact size of the Afro-Colombian population. The Government relies on statistics that suggest that Afro-Colombians comprise 10.5 percent of the population, or just under 4.3 million. However many Afro-Colombian organizations estimate the number at 26 percent or near 11 million. Part of the reason for the difference in the figures has to do with relying on self-identification in areas where “being black” is still strongly stigmatized.
If asked to identify, individuals tend to call themselves white or miztiso or mullato – anything but black. And this makes practical sense. Why declare yourself to be black to face a life of poverty, ignorance, exclusion and discrimination. You would have given yourself a better chance at a decent life just by calling right.
Let me give you an example of how orchestrated the policy of portraying a white image is in Latin America. In Bahia, Brazil, where the largest concentration of Afro-descendants exists, an Afro-descendant father reported to me the difficulty he had in giving his children African names. He informed me that the Brazilian authorities rejected the African names but because he was enlightened and passionate about his race, he insisted. Racial pride – the “I am Black and I am Proud” movement has not reached most of the Latin American countries where Blacks are to be found.
So there is no unified approach in facing the many problems that beset the black population of the region. The old adage that there is strength in unity is true of the situation but lost on the Afro-descendants of region. And that contributes to the invisibility of black people in the region.
In his book Afro-Latin America,George Reid Andrews points out that, “The racial democracy writers of the 1930s and 1940s had assured their fellow citizens that Latin America was racially egalitarian and free of prejudice and discrimination that so deformed life in the United States. For several decades, Latin Americans, including many black and brown Latin Americans, had believed and accepted this message. But as the evidence refuting it mounted and accumulated in the lives of Afro-Latin Americans, they finally demanded that the societies of the region acknowledge that racial democracy was in fact a myth”.
Land Rights
In dealing with the realities of the state of the human rights of Afro-descendants in the region, one cannot overlook the fact that their land rights are being disrespected. The Afro-descendants share this problem with the indigenous peoples of the region. The issues here have been dealt with in two reports which I commend to you. The reports are Unfulfilled Promises and Persistent Obstacles to the Realization of the Rights of Afro-Colombians – by University of Texas Faculty of Law in 2007, dealing with Law 70 of Columbia; and fresh off the press, The Duty To Protect Indigenous Communal Property Rights Over The Land, Territories, And Natural Resources by the Inter American Commission on Human Rights. This last study by the Commission comes with an annex called “Guidelines with regard to the State’s Duty to Consult with respect to Development Projects that May Affect the Rights of Indigenous Peoples”. These guidelines were adopted by the Inter-American Commission on Human Rights. Permit me to quote from the Commission’s report –
The relationship between indigenous peoples and their lands, territories, and natural resources is a key factor for the material subsistence and for the preservation of the identities and cultures of these peoples, and the enjoyment of their political, social, economic, and cultural rights in the Americas, and the rest of the world. This special relationship has been widely recognized in international human rights law, including specific instruments on the rights of indigenous peoples such as the United Nations Declaration on the Rights of Indigenous Peoples (United Nations Declaration) , and Convention No. 169 of the International Labour Organization (ILO) on indigenous and tribal peoples in independent countries (Convention No. 169).
I submit that the same applies to the Afro-descendants.
Civil Rights Movement Nascent
The United States of America went through its civil rights movement in the 1960’s. Great men and women came forward to lead the movement and drive it. You know the cast well -– Martin Luther King, Thurgood Marshall, Stokely Carmichael, Malcolm X, Angela Davis and I would add Mohamed Ali, to name a few of the civil rights leaders. The civil rights movement in the rest of the Americas is barely nascent. And this is part of the problem. The leadership has not come forward as yet; therefore the movement is barely nascent at this time. There is not then the pride in being black. There is no telling of the story of the proud ancestry of Afro-descendants – that they are not descendants of slaves but rather descendants of Africans who were enslaved. That their history and lineage go back well before the unfortunate era of slavery. Therefore the curricula of the people of African descent do not take into account their African background. For example in Columbia I met with the Columbian education minister and asked her whether the school curricula took any account of the significant African Colombian population and she confessed they had not but indicated that she would look into it. I have to tell you that Columbia has made strides in correcting the situation.
Invisibility
When you are invisible, you are neglected. If you are invisible, it means that you do not exist, you are then denied your share of the wealth of the nation, you are denied proper health care, proper education and housing, and your land rights are trampled upon.
I will give you an example of what I mean. I visited Brazil in 2005 and 2006 and was appalled at the condition of the Afro- descendants and Indigenous people in the Quilombo regions. I asked the leadership how could it be that a country as wealthy as Brazil could have some of its citizens living in that condition. The conditions were as bad as those suffered by the people of Haiti. Ironically at the same time there was an art exhibition in Bahia entitled Brazil/Haiti. From the paintings it was impossible to detect which sceneries of sheer poverty were of Haiti and which were of Brazil. These conditions of degradation and neglect among Afro-descendants can be found in all parts of Latin America.
The Caribbean
Cuba
The prevailing view of race in Cuba follows the official propaganda in assuming that racial discrimination in the island is practically non-existent. However the reports coming to the Commission paint a different picture. In a book called The Open Wound –The Scourge of Racism in Cuba from Colonialism to Communism - Ivan-Cesar Martinez, analyses what he calls “the ideology of White supremacy”. He states that his work “is intended to serve as a tool to eradicate this terrible scourge by demystifying the so-called color blindness of Cuban society by showing clearly the existence of a hierarchical color-structure of power that has never changed and that keeps the majority of the population – Cubans that have been sentenced for the crime of having been born with a darker skin color- at the bottom of the society, permanently excluded and reined in” . Martinez points to a study by the Havana Center of Anthropology, a governmental agency, that found that “white Cubans continue to believe in black intellectual inferiority, inferior values , inferior culture, inferior decency and they are opposed to racial intermarriage much more than in the United States. White Cubans are more racist today, after five decades of socialism, than white Americans who were the world champions of racism four decades ago” Racism is alive and well in Cuba today.
Dominican Republic
The Dominican Republic like Venezuela and other Latin America countries are engaged in whitening their society. In Reversing Sail (A History of the African Diaspora), Michael A. Gomez states, “Race in the Dominican Republic highlights the extent to which it is an arbitrary and politicized concept, and it is significantly conditioned by Haiti; the fear of being labelled a Haitian led many to undervalue their African heritage. Sixty percent of the country is of mixed ancestry, but those of the upper class are classified as white, illustrating the principle that class ”whitens” throughout and 12 percent of the “purer” African ancestry are invariably poor” .
The English Speaking Caribbean
There is a notion among Afro-descendants of the English Speaking Caribbean that there are no serious issues of racial discrimination in their countries. This is far from the truth. There is in all of the islands what I call “shadism” where the lighter your skin, the higher up the economic ladder you will be. Racial profiling is also prevalent in the islands where, for example, unequal treatment is meted out to black tourists by black hospitality workers. In a recent incident that was brought to my attention a group of offshore medical students went to a night club to celebrate the birthday of one of them. Seven white students were allowed to pass without incident but there was a marked difference in the treatment of the eighth student who happened to have been a black Bahamian and the one whose birthday was being celebrated. He was pulled aside by a female black woman who declared that she was a police officer and began to push and pull the black student, tearing his shirt in the process. He was denied entry although he had paid and had his band on his wrist as evidence and he was cursed and embarrassed for committing the crime of being of a dark skin-colour. I am convinced that the thesis of Na’im Akbar that he expresses in his essay, Breaking the Chains of Psychological Slavery accounts for phenomenon of shadism in the English speaking Caribbean. Deep psychological damage of slavery still influences our conduct towards other blacks.
WHY
As I asked of Brazil so must I ask of the rest of Latin America, why do we still have a particular set of our citizens living in conditions of squalor? How is it that in all of the Latin American countries where Afro-descendants exist, they find themselves at the bottom rung of the economic ladder and excluded from participation in government? Why is it that as declared by the participants at the Conference of Black Parliamentarians in Costa Rica (which I attended) that “millions of Afro-descendant children born today are more likely to go to jail than to a university, to be in the streets instead of in school, to work in the informal economy rather than to develop their talents, and to be excluded from exercising their rights as first-class citizens.” Why do African descendants in Latin America live in impoverished conditions while having unequal access to education, employment, healthcare, and housing?
I can find only one answer: discrimination.
What Can and Should Be Done
I use Brazil as an example of what can and should be done to change this picture to bring about a new reality for the Afro-descendants of the region. Under President Lula, Brazil started with the admission that it had a problem. It moved from what was called “racial democracy” - from the idyll that there was perfect racial harmony in Brazil to a realization that there was racial injustice caused by racial discrimination. It came to the realization that Brazil was not a white country but a racially diverse country. The President held a series of consultations on race in the provinces culminating in a national conference on race relations. He invited me to attend that conference and I did. It was a wonderful convergence of people of all races in Brazil. It was a catharsis for the nation. President Lula himself made trips to Africa and re-established the African origins of the majority of Brazil’s population. Most notably, Brazil was the first country to have established a government agency to work on social inclusion and racial equality, called SEPPIR (Special Secretariat for the Promotion of Racial Equality). Furthermore, under the President Luiz Inácio Lula da Silva, four Afro-Brazilians were appointed to cabinet-level positions in the government and one to the Supreme Court.
The other positive was the effect of the preparation for the United Nations World Conference on Racism held at Durban, South Africa in 2001, the conference itself and the post conference activities. The Conference adopted the Durban Plan of Action.
the Rapporteurship on the Rights of Afro-Descendants and Against Racial Discrimination and Racism
One of the products of the Durban Conference was that the Inter American Commission on Human Rights established the Rapporteurship on the Rights of Afro-Descendants and Against Racial Discrimination and Racism early in 2005. Brazil could be said to have been the midwife of Rapporteurship through its advocacy in the OAS and by providing the operational funds. I was given the duties of the first Special Rapporteur. The Rapporteurship was charged with stimulating, systematizing, reinforcing and consolidating the actions of the Inter-American Commission in support of the rights of people of African descent and against racial discrimination. The core objectives of the Special Rapporteurship included working with OAS member States to generate awareness of the States’ duty to respect the human rights of Afro-descendants and on the elimination of all forms of racial discrimination; to analyze the challenges that confronted countries of the region in this area; to formulate recommendations designed to overcome those obstacles; to identify and share best practices in the region with respect to this matter, and to provide the technical assistance requested by member States in the implementation of the recommendations in national law and practice.
The Rapporteurship undertook an advisory role and carried out its activities in the area of promotion and protection of the rights of Afro-descendants. I draw your attention to the Annual Reports of the Commission since 2006 for a report on the activities of the Rapporteurship since its inception. . In December 2008 and following on a visit I made to Columbia in May 2007, the Rapporteurship approved a report entitled, “Observations of the Inter-American Commission on Human Rights on the Rights of Afro-descendants and Racial Discrimination in Colombia.” This report was the first thematic report prepared by the Rapporteurship on the problem of racial discrimination with respect to the Afro-descendant population in Colombia. I however must say that I found that the Commission and the OAS itself needed the services of the Rapporteurship as much as the States. The situation with respect to Afro-descendants within the Commission and the OAS reflected the situation in the Member States. The same lack of inclusion was present. The Commission and the OAS are what one author calls “White territories”. In a word there is a startling absence of people of colour in the institutions. For example, in the Commission there was one Black lawyer of the 36 lawyers working for the Commission and the present Commission is now all white with my departure. There is a need for a conscious effort to bring about more racial balance in the Commission, that is, among commissioners, lawyers and support staff and indeed in the OAS generally. You will not find this in the Commission’s reports.
Regional Convention Against Racism
The Rapporteurship also provided technical support the Working Group of the Committee for Juridical and Political Affairs of the permanent Council of the OAS that is charged with drafting a new regional instrument , the Inter-American Convention against Racism and All Forms of Discrimination. I ask you to pay special attention to the drafting of this new instrument. The instrument is of particular significance as I feel that the process of drafting the instrument provides an opportunity to bring the issue of discrimination in the region to the front burner. It seems to me that the drafting committee is moving in the direction of widening the scope of the Convention to deal with all forms of discrimination and intolerance to such an extent that the original focus is being lost. The emphasis on racism has been diluted to such an extent that it will be necessary to begin the process again to take care of one of the region’s most pernicious problems – racism.
Affirmative Action
In looking at what should be done to redress the dire situation of Afro-descendants in the region we have to give serious consideration to affirmative action. In an article entitiled “Affirmative Action in Brazil: Challenges and Prospects” Flávia Piovesan gives an overview of the theory and practice of affirmative action in Brazil. She points out that …” the right to redistribution of wealth requires measures to change social and economic structures combined with redistribution policies to fight economic injustice, marginalization and economic inequity.” In response to her question, How should we handle the problem of discrimination? She stated
Within the scope of International Human Rights Law, two strategies stand out: a) the repressive-punitive strategy, which aims at punishing, banning, and eliminating discrimination; and b) the promotional strategy, which aims at promoting, fostering, and advancing equality.
The repressive-punitive approach seeks to speedily eradicate all forms of discrimination. Fighting discrimination is fundamental in the process of guaranteeing full exercise of civil and political rights, as well as social, economic, and cultural rights”.
But Pievesan continues, “The ban on discrimination must be coupled with compensatory policies that can promote quicker achievement of equality… It is essential that promotional strategies be adopted to help socially vulnerable groups to join and participate fully in social spheres…...
In that regard, affirmative action stands out as a powerful tool for social inclusion. Affirmative action consists of special and temporary measures that are designed to redress a history of discrimination by accelerating the process of promoting equality. It reaches the substantive equality of vulnerable groups such as, for instance, ethnic and racial minorities and women.
Affirmative actions, as compensatory policies aiming at relieving and redressing the results of a past of discrimination, fulfill a decisive public purpose in the democratic process: they ensure social diversity and plurality. They should be understood both from the retrospective viewpoint – as they alleviate the burden of discriminatory past – and also from the prospective viewpoint – as they foster social change and bring forth new circumstances. They are concrete measures that turn the right to equality into something feasible, based on the notion that equality should take the shape of respect for difference and diversity. Affirmative action converts formal equality into material and substantive equality. I could not have put it any better.
Haiti
I could not at this time talk about Afro-descendants in the region and not address Haiti. I was the country rapporteur for Haiti for the past 8 years and on my many trips there I stayed at the Montana Hotel that was flattened by the earthquake 7 months ago. Haiti has been a Chapter 4 country for many years. A Chapter 4 country is one where the human rights situation is so bad that the country is placed in Chapter 4 of the annual report of the Commission for special attention. The current chapter 4 countries are Haiti, Columbia, Venezuela and Cuba. Most first-time visitors to Haiti declare that it is a life-changing experience. It has been said that Haiti is a country trying to move from misery to poverty. The earthquake tragedy would have set Haiti back to misery again. The Commission saw its role before the earthquake as being to keep the International Community interested in assisting Haiti. I urge support and a commitment to rebuild Haiti so that it can take its rightful place among the nations of the hemisphere.
END
I end by urging the Council of Legal Education to continue its work of producing lawyers with conscience. Lawyers who would see their role as not just accumulating wealth but ensuring that there is justice for all and particularly the discriminated in the Caribbean and the region. In a word, to follow the example of Dr the Honourable Lloyd George Barnett, OJ. It is a good work but dare I suggest that the Council redoubles its efforts in this regard over the next 40 years.
Thank you.
Sir Clare Kamau Roberts, QC
2010 –09 -02
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