Guatemala is a profoundly multicultural country. According to the 2001 census, indigenous peoples represent 41% of the total population. But other estimates place this number closer to 60 percent.1. Around 5.9 million Guatemalans identify as indigenous, making it one of the largest indigenous populations in the Americas, after Mexico, Peru and Bolivia.
As across the hemisphere, indigenous peoples in Guatemala are overwhelmingly poor. While 53% of the total Guatemalan population is poor, a whopping 74% of Guatemalans living in poverty are indigenous2.
Human development in Guatemala is also extremely slow. The Human Development Index (HDI) for the country, which had been increasing since the turn of the century, has stagnated recently. Between 2000 and 2006, Guatemala’s HDI averaged a growth of 3.2 percent. This dropped to 0.6% between 2006-201413. Meanwhile, wealth has become even more concentrated among the richest Guatemalans making the country more unequal than it has ever been before.4
This level of inequality triggers other dimensions of social exclusion. One clear example is that of housing and land ownership. According to the agricultural census of 2003, 1.86% of the producers had access to 56.59% of land, while 92.06% of producers had access to only 21.86% of land.5
Adding to the country’s challenges, Guatemala experienced one of the bloodiest civil wars in the history of Latin America (1960-1996). This conflict only worsened the degree to which Guatemalan indigenous populations experience social exclusion, since they were the main targets of the repression by armed forces during the war. In 1984, the military government, pressured by the United States to install democracy in Guatemala, called for the election of a constitutional assembly.6 In 1985 the assembly finished a new Constitution, which marked the start of Guatemala’s long path to democracy. What is novel about this Constitution is its declaration that “Guatemala is formed by diverse ethnic groups, especially those of Mayan descent, and the State recognizes, promotes and respects their ways of life, customs, traditions, and ways of social organization.”7
Ever since, Guatemala has recognized certain rights for indigenous populations, at least on paper. Some of the most important milestones in Guatemala’s path for the social inclusion of indigenous peoples are outlined below in Table 3.
A path to social inclusion for indigenous peoples in Guatemala
Timeline of approved legislation
|Year||Reform / Approved Legislation|
|1986||Decree number 43-86 creates the Alphabetization Law, which guarantees each person the right to choose the language (indigenous or Spanish) in which he or she wants to learn to read and write (Article 5). The Law also recognizes pre-existing linguistic pluralism in the country.|
|1991||Decree number 12-91 creates the National Education Law, which defines the importance and preeminence of bilingual education in accordance to Guatemala’s multilingual, multiethnic and pluri-cultural society.|
|1995||In March, Guatemala passes the Agreement on the Identity and Rights of Indigenous Peoples. Signed as part of the Peace Agreements (“Acuerdo de Paz Firme y Duradera”), this document urges the State to recognize and define the identity of indigenous peoples; fight against discrimination; protect the rights of indigenous women; ratify ILO 169; promote indigenous languages in the education system; and recognize the right of indigenous peoples to define their own development priorities and the autonomy to define their own methods of organization.|
|1996||Guatemala ratifies ILO 169|
|2001||Decree 12-2002 creates the Municipal Code, which recognizes that indigenous communities have their own methods of organization, according to their own norms and with their own authorities. It also recognizes the right to consultation when certain decisions and policies affect the indigenous population.|
|2003||Decree 19-2003 creates the Law on National Languages, which decrees that the state should provide basic services like health, education, justice, and security in different indigenous languages.|
Nonetheless, most indigenous leaders interviewed by Global Americans argued that the Guatemalan government had yet to recognize the right to self-determination and expressed frustration with the ongoing implementation gaps. The Association of Mayan Lawyers (“Asociación de Abogados Mayas”) echoed this sentiment: “the State is still mono-cultural and has historically denied rights. We work to rip those rights out from the State.”
Nowadays, one of the biggest battles in Guatemala is that of recognizing juridical pluralism. The indigenous juridical system is unique. It does not have written law or documents, and Congress has not approved it. It is based on the traditions and philosophy of the indigenous peoples.8 For centuries, the indigenous authorities have exercised their power to resolve internal issues.
As mentioned above, the Guatemalan Constitution recognizes the methods of organization of the indigenous peoples, and the Municipal Code also clearly acknowledges the role of the indigenous authorities. In indigenous law, each case is unique, and therefore each resolution is distinct. Indigenous law tends to take into account not only the offense committed by an individual, but also their situation—if they are heads of family, for instance—and what the consequences of harsh punishment may be given the individual’s context.9 But if juridical pluralism were properly implemented in Guatemala, each case would be resolved either by the indigenous justice or by the “western” justice system, not both.
While the indigenous juridical system is recognized in practice, there is an enormous implementation gap. Many judicial officials do not accept the indigenous system of jurisprudence as a valid means for solving disputes, crimes or conflicts; often they overturn decisions and agreements already made by indigenous authorities with the parties. 10 The Public Ministry also often intervenes, disregarding any previous agreement reached by the indigenous authorities and re-trying the crime. But double jeopardy is prohibited in Guatemala, so this is against the law.11 In addition, many indigenous authorities are incarcerated and charged with abuse of authority.
Last year, the International Commission Against Impunity in Guatemala (CICIG) and the Public Ministry proposed a constitutional reform and spearheaded the issues of juridical pluralism. The bill is still being debated in Congress, and there is little hope among the indigenous organizations Global Americans interviewed that such reform will pass.
A more formal recognition of the indigenous justice system would represent another step forward in the acknowledgment of indigenous rights to prevent the issues described above. However, as many Guatemalan indigenous populations believe, the situation will never really change unless indigenous peoples start having access to positions of power within the different branches of the state. Today there are approximately 200 indigenous members of the judiciary branch, the vast majority of whom in the lowest ranks.12 Creating more tolerance and acceptance within the judicial system toward indigenous law will require more indigenous judges and judicial officials who understand how indigenous justice works.
Public agencies and bodies that work in favor of indigenous peoples in Guatemala
In recent years there have been an increasing number of institutions and units created to uphold indigenous rights at the federal level. Some of the most representative institutions are:
- Mayan Languages Academy: Created in 1990, this autonomous organization conducts research to stimulate and support the development of indigenous languages, implements educational development programs, and publishes bilingual articles, dictionaries, and books;
- Guatemalan Indigenous Development Fund (FODIGUA): Created in 1994, the Fund works towards the cultural, political, social, environmental, and economic development of the Mayan, Garifuna and Xinca peoples. Its line of work is mostly focused on training indigenous peoples to participate in politics. The organization also compiles a database from each community on issues like science, art, and technology;
- Office for the Defense of Indigenous Women (DEMI): Founded in 1999, this office was created to defend and promote the rights of indigenous women, with the goal of eliminating all forms of violence and discrimination against them. It promotes indigenous women’s political development and conducts trainings and awareness campaigns on the rights of indigenous women;
- Presidential Commission against Racism and Discrimination (CODIRSA): Created in 2002, this organization advances policies to eliminate racial discrimination. The Commission’s main activities include initiatives around: a) the elimination of economic racism; b) training on racism and discrimination prevention; c) elimination of legal racism; and d) elimination of institutional racism. However, the organization does not promote affirmative action 13; and
- Indigenous Affairs Unit: Created in 2012, the office is part of Guatemala’s judicial system. The Unit has four main objectives: a) to implement policies of access to justice for indigenous peoples; b) to spread the use of 22 indigenous languages across the judiciary system; c) to train public officials regarding indigenous rights; and d) to coordinate with indigenous authorities to advance judicial pluralism.
Consulta Previa in Guatemala: The right to free, informed and prior consultation
The correct implementation of the right to prior consultation continues to be a matter of debate in Guatemala. The country ratified ILO 169 in 1996, but there’s a gap between its ratification and implementation. While the legislative decree that ratifies the treaty states that it should be subordinate to the Constitution, the Constitution also recognizes the supremacy of the human rights norms.
Driven by pressure from civil society groups, a special law dedicated to prior consultation has been stalled in the legislature since 2009.14 But even with support from the Indigenous Affairs Commission, the bill has not progressed.15 In fact, when drafted, the law did not aim to give a step-by-step guide for each consultation. Instead, it called for the creation of an advisory body that would represent all the indigenous communities and would provide guidance and support to communities during the consultation processes.
During President Alvaro Colom’s government (2008-2012), there was a top-down attempt to regulate the consultations, but the effort was met with resistance from indigenous communities, which believed it would have downplayed several components of ILO 169.16
More recently, the Constitutional Court in Guatemala has ruled in favor of the indigenous communities in several cases where the prior consultation process had not been respected.17 While there is no doubt that these rulings are an important milestone, they are exceptions to the norm, and indigenous communities complain that the Court did not go a step further to make the consultations legally binding.18
One of the indigenous community’s biggest repeated complaints is the fact that consultations are not binding. There have only been two cases in which indigenous peoples were able to stop a project through prior consultation: the mining project La Puya and the hydroeletrical project San Juan. These cases should serve as milestones, but the truth is they buck the trend; consultations generally do not resolve these issues and usually just delay the implementation of projects.19
Last year, the United Nations partnered with “Organización Indígena Naleb”—an indigenous organization led by Alvaro Pop—and the Ministry of Labor—whose Minister, Aura Leticia Teleguario, is an indigenous woman—to launch a national dialogue on prior consultation. The objective is to consult with indigenous communities and other sectors of civil society on what could be generally agreed-upon guidelines for prior consultation. To achieve this, Naleb will visit 30 communities and, afterwards, create an advisory board made up of individuals from civil society, indigenous organizations, ancestral authorities, the private sector and the Ministry of Labor.20 Since the UN sponsors the round of dialogue, one of the main objectives is to share the experience, knowledge, and agreed criteria with other countries. Ideally, the results and conclusions of this dialogue could also be turned into national law.
Political integration of indigenous peoples in Guatemala
The Guatemalan Civil War, which wreaked havoc on Guatemalan society in general, was especially disastrous for the country’s indigenous communities. According to a report by the Commission for Historical Clarification titled “Guatemala, Memory of Silence,”21 83% of the war’s missing and murdered belonged to the Mayan indigenous peoples.
The report from the Commission also traces the roots of the conflict to the “profound exclusion, antagonism and conflict” that existed in the Guatemalan society.22 The report highlights the targeted violence from the state against the most excluded and poor segments of society, especially the Mayan population.23 While the Commission acknowledges that insurgent Marxist groups committed crimes and executions, the response by the state was so disproportionate that the Commission holds them responsible for 93% of the war’s crimes including disappearances, murder, rape, and torture.24
The UN backed peace accord enacted at the end of the war represented the first step in the journey to create a multiethnic, multilingual and pluri-cultural Guatemala. However, proportionate political representation of the country’s indigenous population is still far from reality.
Guatemala’s indigenous population falls somewhere between 40 to 60% of the total population. However, it has not achieved more than 22 seats in Congress (13% of total seats). While there are some political parties and coalitions that claim to represent the indigenous majority, they consistently get less than 5% of the votes in the general elections.
In 1998, after laying down its arms, the coalition of the four main Marxist rebel groups (Unidad Revolucionaria Nacional Guatemalteca –UNRG) became a political party. As an organization that was originally formed to unite diverse groups against a common enemy, the transition of the URNG to a legal political party was not without internal tensions. While they struggled to re-define their political vision, the party was mainly concerned with the rights of indigenous peoples. However, tensions between and within the left in Guatemala (which exist to this day) are undoubtedly responsible for the UNRG’s lack of electoral success.25
Political representation: Indigenous peoples in the Guatemalan Congress
In Guatemala, the search for information on how many indigenous peoples are members of Congress was a much easier task than in the comparative case of Mexico. Almost everyone that participated in the Global Americans interviews knew how many members of congress identified themselves as indigenous. Moreover, it took just one phone call to the Congressional Legislative Department (Dirección Legislativa del Congreso), to obtain information on the bills presented by indigenous members of congress, and their status (pending, approved, or rejected) was readily available a few hours later by email.
Political representation of indigenous peoples in the Guatemalan Congress
2016-2020 Legislative Term
|# of legislators that identify as indigenous||19 (out of 158)|
|# of bills introduced by those legislators related to indigenous issues||13|
|# of bills passed||1|
|# of bills rejected||1|
Indigenous legislators have presented a total of thirteen initiatives related to indigenous issues. Four of those initiatives were either related to prior consultation or to recognizing the indigenous justice system. Two of those initiatives aimed at regulating the mining industry and one of them addressed protecting the right to protest. The only initiative that was completely rejected was one that suspended all mining concessions for at least five years to allow time to legally enshrine a prior consultation process.
Guatemalan indigenous legislators are also concerned with cultural issues, and it seems that these topics gather more support than others. In fact, the only initiative proposed by an indigenous congressperson that has been enacted was a proposal to recognize the Mayan book “Pop Wuj” as a tangible cultural heritage piece of the nation. Most of the other proposed cultural project laws have already been approved in initial debates and are likely to pass.
Other initiatives proposed by indigenous members of congress address topics related to indigenous rights, such as economic development, access to land, access to services (specifically, multi-cultural education), and implementing a thorough indigenous census.
Breakdown of initiatives presented by indigenous legislators at the Guatemalan Congress
|Topics||# of initiatives|
|Prior Consultation and Indigenous rights||4|
|Access to land||1|
|Access to services||1|
But, once again, having indigenous legislators in Congress does not necessarily translate to increased representation of indigenous causes. According to the National Democratic Institute (NDI), the percentage of abstention among indigenous peoples is much higher than among non-indigenous populations. The main reason for abstention is lack of identification with the candidates.26
According to indigenous electoral observation missions conducted by “Organización Indígena Naleb,” there have been an increasing number of Mayan candidates running for congress, but there are other problems that persist in preventing the full participation of indigenous peoples, including language barriers in the election process, lack of information on where the votes should be cast, political clientelism, and even violence.27
Political participation of indigenous women
Indigenous women in Guatemala are by far one of the most vulnerable groups in the country. Only 35.5% of rural women (most of whom are indigenous) are part of the working population, while 88.1% of rural men are. In fact, 64% of indigenous women work on domestic chores without pay. They have no access to credit, land or other productive resources.28 Indigenous women face other barriers to success as well. They have fewer years of education than men and they have high incidences of teenage pregnancy.29
In recent years, Guatemalan congress has discussed a parity law, which would guarantee equal spots for women and men on in electoral lists. Indigenous communities advocated adding ethnic parity to the law, but it failed to gather momentum in congress. However, there has been some progress on the issue of participation of women.
When Global Americans visited Guatemala, we met with a social organization composed of indigenous women who aim to promote female political participation. When asked to list the main areas of progress they mentioned:
- The Constitutional Court’s ruling in favor of parity.
- The increased participation of women as ancestral authorities.
- The growing number of women in municipal government.
- The presence of several Mayan women on Development Community Councils (COCODES) and Development Departmental Councils (CODEDES).
- The creation of the Women Defense Body (“Defensoría de la Mujer”).
- The creation of municipal offices for women to provide counseling and information on the rights of women.
- The awarding of the Nobel Peace Prize by an indigenous woman—Rigoberta Menchú.
- The presence of indigenous women in national government (including the Labor Minister).
Indigenous women interviewed by Global Americans also outlined the biggest challenges facing their communities. These included neglect of indigenous peoples in the government’s agenda, the lack of affirmative action policies, and the systematic discrimination and lack of recognition of indigenous rights.
Challenges and priorities: What matters the most for indigenous peoples in Guatemala?
In our visit to Guatemala, Global Americans conducted interviews and focus groups, reaching 37 people, including indigenous leaders, members of the judiciary, legislators, multilateral organizations, civil society, and academia.
We asked each of the interviewees what they thought were the three most pressing issues that indigenous peoples faced in Guatemala. Most agreed that the lack of political participation and representation, the need for prior consultation, and respect to indigenous rights as the most important challenges facing indigenous communities. When discussing political participation, many interviewees mentioned the historic divisions between indigenous and non-indigenous (ladinos) Guatemalans, which intensified during the civil war. In terms of indigenous rights, many interviewees highlighted that the state does not recognize them as distinct “peoples,” and therefore, as deserving of collective rights. Additionally, many mention that while there is a formal embrace of the right for prior consultation, reaffirmed by the Supreme Court, the government treats it as a non-binding obligation, rendering it toothless.
Interviewees also mentioned access to services. They emphasized the lack of quality education for the indigenous population and how poverty has pushed indigenous communities to the cities, which don’t have the infrastructure to absorb the influx of indigenous Guatemalans.
Three other topics also came up more than once: access to land, culture, and racial discrimination. The issue of access to land has been tied to the armed conflict, worsened by the increasing presence of extractive industries, which has displaced many communities. In terms of culture, some of the interviewees—all of them indigenous—mentioned how some traditions are being lost and languages are slowly starting to fade. Finally, some interviewees noted that Guatemalan society is deeply racist.
Challenges to development
(ranked as percentage of
mentions by interviewees)
|Lack of political participation and representation||24.14%|
|Prior consultation and indigenous rights||24.14%|
|Access to services and poverty||17.24%|
|Access to land||10.34%|
More than twenty years after the end of the Guatemalan Civil War, the country’s indigenous peoples, who make up almost half of the population, continue to experience extreme social and political exclusion. Despite some noteworthy progress (especially in terms of institution building), the Guatemalan government continues to prioritize almost any competing interest over its indigenous citizens. Indigenous culture faces erosion; the right to prior consultation is almost never respected; indigenous Guatemalans are poorer and less educated than their non-indigenous peers; and in all branches of government, indigenous representation is sorely lacking. This disturbing social, political, and economic gap falls squarely on the Guatemalan government. Until the country’s powerful, corrupt political class begins to make more of an effort to incorporate Guatemala’s excluded majority into social and political life, the prospects of reducing the exclusion of Latin America’s fourth largest indigenous community look bleak.
2. Salazar Tetzagüic, Manuel de Jesus. “Identidad Indígena en un Mundo Globalizado. La Experiencia de Guatemala”. Reporte Político. Año XLVI Época V, No. 14 Centroamérica, Enero – Junio de 2016. P. 60.
3. Informe Nacional de Desarrollo Humano “El Estado Reciente del Desarrollo Humano en Guatemala”. 2015/2016. P. 17.
4. Ibid., P. 37.
5. Salazar Tetzagüic, Manuel de Jesus. “Identidad Indígena en un Mundo Globalizado. La Experiencia de Guatemala”. Reporte Político. Año XLVI Época V, No. 14 Centroamérica, Enero – Junio de 2016. P. 60.
6. Informe Nacional de Desarrollo Humano. “La Construcción de un Estado Democrático Posconflicto”. 2015/2016. P. 91.
7. OAS. “Constitución Política de la República de Guatemala.” https://www.oas.org/juridico/mla/sp/gtm/sp_gtm-int-text-const.pdf (accessed July 2017).
8. Interview with Santos Sajbochol Gómez, Director of the Commission on Indigenous Issues, Guatemala Judicial Organism.
9. Sajbochol Gómez, Santos. . “El Pluralismo Jurídico en Guatemala”. Reporte Político. Año XLVI Época V, No. 14 Centroamérica, Enero – Junio de 2016. P. 17
11. Interview with Santos Sajbochol Gómez, Director of the Commission on Indigenous Issues, Guatemala Judicial Organism.
13. González, Erickson. “Comisión Presidencial Contra la Discriminación y el Racismo Contra los Pueblos Indígenas de Guatemala” 2012. http://es.scribd.com/doc/47734864/CODISRA (accessed August 2017).
14. Interview with The Mayan Lawyers Association (Asociacion de Abogados Mayas).
15. Congreso de la República de Guatemala, C.A. “Iniciativa que dispone aprobar la Ley de Consulta a los Pueblos Indígenas.” Dirección Legislativa. Control de Iniciativas. 18 de agosto de 2009. http://old.congreso.gob.gt/archivos/iniciativas/registro4051.pdf (accessed August 2017).
16. Interview with The Mayan Lawyers Association (Asociacion de Abogados Mayas).
17. UNDP. “Corte de Constitucionalidad garantiza derechos de los Pueblos Indígenas y del Medio Ambiente.” Programa de las Naciones Unidad para el Desarrollo en Guatemala. http://www.gt.undp.org/content/guatemala/es/home/presscenter/articles/2016/04/04/corte-de-constitucionalidad-garantiza-derechos-de-los-pueblos-ind-genas-y-del-medio-ambiente.html (accessed August 2017).
18. Interview with The Mayan Lawyers Association (Asociacion de Abogados Mayas).
20. Interview with Organización Indígena Naleb.
21. Commission for Historical Clarification. “Guatemala, Memory of Silence.” Report of the Commission for Historical Clarification, Conclusions and Recommendations. 1999. https://www.aaas.org/sites/default/files/migrate/uploads/mos_en.pdf (accessed March 2017).
22. Ibid, P.17.
23. Ibid, P.17.
24. Ibid, P.34.
25. Ibarra & Marti I Puig. “De la lucha guerrillera a la marginalidad electoral. Un análisis de las organizaciones revolucionarias guatemaltecas desde su aparición hasta las elecciones de 2003.” Ediciones Universidad de Salamanca: 2009. https://gredos.usal.es/jspui/bitstream/10366/100452/1/De_la_lucha_guerrillera_a_la_marginalida.pdf (accessed September 2017).
26. NDI. “Barriers to Electoral Participation in Guatemala: Diagnostic of 4 Municipalities.” Mirador Electoral 2007. https://www.ndi.org/sites/default/files/2328_gt_report_elec_061908.pdf (accessed September 2017).
27. Cabrero, Ferran (Coord). “Ciudadanía Intercultural – Aportes desde la participación política de los pueblos indígenas en Latinoamérica.” UNDP: 2014. P. 130. http://www.onu.cl/onu/wp-content/uploads/2016/06/LIBRO-CIUDADANIA-INTERCULTURAL-PNUD-democracia.pdf (accessed September 2017).
28. Asociación Política de Mujeres Mayas. “Pensamiento político e histórico de las mujeres mayas.” P. 12.
29. Ibid., P. 13.