Auto 005 of 2009
In 2004, the Constitutional Court of Colombia decided case T-025, where it declared an unconstitutional state of affairs in regards to the situation of millions of internally displaced persons (IDPs) due to the country’s armed conflict. The unconstitutional state of affairs was due to the massive human rights violations associated with systemic failures in the safeguarding of IDPs by the State. In order to put an end to the unconstitutional state of affairs, the Court established a structure for follow-ups that consisted of two types: (1) special proceedings to evaluate the progress made by various state agencies, in which agencies were required to provide periodic reports on their compliance with the Court’s orders; and (2) autos de seguimiento, additional written materials from the court which expanded and clarified the Court’s orders in T-025, with specific focus on groups of persons at greater vulnerability and disproportionately impacted by the internal armed conflict. Auto 005 of 200 is one of such orders, referring specifically to the situation of forcibly displaced Afro-Colombians.
This case resolves an auto action to protect the rights of the displaced Afro-Colombian population in conformance with the court’s prior declaration in the T-025 decision of 2004 of an “unconstitutional state of affairs” around the situation of the forcibly displaced population. In accordance with the T-025 decision, the Court declared it the obligation of the Colombian government to protect the rights of the internally displaced Afro-Colombian population, emphasizing that “given the historical situation of marginality and segregation that the Afro-Colombians have faced, they should be able to enjoy the state’s special protection.” The Court found that the government had systematically violated the displaced population’s rights and ordered the government to take measures to protect the Afro-Colombian population’s territory and communities, as well as prevent and remedy displacement.
The Court began its analysis by surveying the Colombian jurisprudence and legal frameworks that protect the rights of Afro-Colombians, as a specially-protected class. The Colombian Constitution affords Afro-Colombians “special protection” by the State due to the group’s historic and systematic discrimination. This includes the safeguarding of their rights to territorial sovereignty (including collective property ownership), to distinct cultural identity (including their distinct history, traditions and customs that distinguish them from other ethnic groups), and to non-discrimination. Other provisions protect their access to participation, to socioeconomic progress, to educational formation, and to community organizing with the goal of preserving their cultural identity. Colombian Constitutional Court jurisprudence also supports this, finding unconstitutional any state action which discriminates against Afro-Colombians due to their race or ethnicity.
Colombia’s international obligations further support the “special protection” status of Afro-Colombians. This protection is enshrined in instruments such as the Universal Declaration of Human Rights, the International Covenant on Civil and Political Rights, the American Convention on Human Rights, and the International Labour Organisation Convention 169.
The situation of Afro-Colombians in the context of displacement is not well known, which the Court explained is due both to structural discrimination and to characteristics that are particular to the Afro-Colombian community. For instance, many communities decided to stay in their lands and thus resist displacement, regardless of the threats to their security. Thus, due to the remote areas where many of them live, it was difficult for the state to gather information on their status. Additionally, those who did leave their ancestral lands often did so for a short time, returning to their lands shortly thereafter.
Despite the serious underreporting, the Afro-Colombian population makes up a significant portion of the displaced population. In 2007, 14% of the displaced population was made up of Afro-Colombians, while in 2003, this number was only 6%.
Displacement has greatly reduced the quality of life for Afro-Colombians, especially with regards to housing and financial stability. For instance, before displacement, around 60% of the Afro-Colombian population owned their homes, while after displacement, home ownership in this community was reduced to around 3.5%, while renting rates went up to 33%. Similarly, before displacement, around 71% employed and financially stable, with this number flipping to the inverse after displacement, with around 74% unemployed and only 3.2% of Afro-Colombians who remained employed.
This aggravated impact of displacement on this population, the Court found, was based on three main factors: (1) structural discrimination and marginalization based on race; (2) national economic development projects on Afro-Colombian land, including moncultivation and mining, which led to the sale of zones that Afro-Colombian communities were unable to obtain collective title for; and (3) the constitutional protections mentioned above have not been enforced in practice during the onslaught of land occupation and violence of the armed factions during the internal conflict and the simultaneous absence of the state to enforce these rights of collective land ownership.
Additionally, the Court identified a series of risks that also contributed to the disproportionate impact of displacement on the Afro-Colombian community. These included: (1) violations of territorial autonomy; (2) destruction of collective territories; (3) violations of multiple human rights, including territorial sovereignty, right to participation, autonomy, cultural identity, development within the community’s own cultural aspirations, security, food sovereignty and multiple civil, political, social and cultural rights; (4) exacerbation of racism and discrimination; and (5) inability to enforce their right to free, prior and informed consent and consultation (FPIC).
The Court found that displacement violated Afro-Colombians’ territorial autonomy by making it difficult for them to obtain title to lands that had not yet been recognized as collective territory. In addition, displacement presented the risk of loss of those lands which they had obtained collective tile to. Finally, the court highlighted the risk that their lands would be occupied by people who would perform harmful activities to the environment, such as mining.
In terms of the multiple violations of human rights, the Court found that housing was a significant challenge, given that 80% of Colombians live in urban areas, in spaces defined as inappropriate for social or family life, which exacerbated conditions of marginalization and poverty. This urban setting also threatened their cultural identity as their cultural, nature markers were not present, and they had to face intolerance for their customs and culture, racism in their new environments, and lack of employment due to discrimination. Additionally, Afro-Colombians experience lack of institutional support and discrimination in the access of humanitarian aid for displaced persons. For instance, they are not told information about how to access aid, they are not included in the official register of displaced persons, and there are no differentiated processes in place that account for the particular situation of Afro-Colombians in the context of a racist society.
Displacement also undermines Afro-Colombians’ right to FPIC. The ILO Convention 169 guarantees certain Indigenous and tribal groups’ rights, including to and equality. It also guarantees the right to participation as well as to consultation and consent and seeks to protect cultural integrity of communities as well as to protect the rights to a healthy environment and to sustainable, culturally-sensitive development, looking to Indigenous and tribal groups to decide their own priorities in line with their lives, beliefs, institutions and spiritual wellbeing and to control their socioeconomic and cultural wellbeing. It also guarantees land rights of Indigenous and tribal groups, and upon displacement, to be able to return to them if they are unable to return to their same lands, they must be granted access to lands that are of the same quality and protected legal status. However, none of these scenarios are present in the experience of displaced Afro-Colombians, and many risk multiple threats to their lives, health, and personal safety when deciding to return to their ancestral lands.
The Court found the state’s response regarding the Afro-Colombian population to be insufficient. The constitutional protections they are afforded as a specially protected group do not match with the unorganized, fragmented, and lacking governmental response in the context of the forced displacement. For instance, regarding the serious right to housing violations, the Court highlighted a situation in 2001 where it was found that around 521 families needed housing in conformity with this right, but the government only built 108 houses, many of which became abandoned due to poor construction and deterioration resulting even in the death of a child due to building structure deficiencies.
The Court ordered the government to create and implement protection plans specific to the Afro-Colombian population, including a plan for immediate humanitarian aid, specific plans to prevent displacement; a plan to reduce discrimination against the Afro-Colombian population; a plan to provide housing and income to the displaced population; plans to protect and strengthen the social and cultural fabric of the Afro-Colombian communities; a plan to return the displaced Afro-Colombians to their territory; a plan to ensure better demarcation of Afro-Colombian land in conformity with Law 70; and a plan for permanent follow-up and evaluation.
Auto 266 of 2017 followed up on the Auto 005 and found a low compliance level. Specifically, in urban settings, the Afro-Colombian community continued to be plagued by forced prostitution, extortions by armed actors, intimidations and death threats by armed actors, and displacement within the urban settings due to safety concerns, food insecurity, occupation by armed actors, and displacement by development projects.
Further autos, such as Auto of 18 May 2010 and Auto 163 of 2020, specifically addresses the situation of Afro-Colombian communities native to the regions of Curvaradó and Jiguamiandó. Specifically, it addresses the barriers this displaced community faces in returning to their native lands. Auto 073 of 2014 also surveys the situation of Afro-Colombian communities native to the Pacific region of Nariño.
The Colombian Constitutional Court recognized that the situation of displacement disproportionately affected the Afro-Colombian population and reinforced the population’s right to collective territory and cultural integrity, as well as the basic human rights of freedom of discrimination, life, and human dignity. In delineating the problems of the governmental approach, it pointed out the necessity of displacement initiatives that incorporated the culturally specific needs of the Afro-Colombian community.