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At the end of September, during the protests against the reforms proposed by the government of President Gustavo Petro, one of the protesters, Luz Fabiola Rubiano de Fonseca, made discriminatory comments against the Afro-Colombian population and referred to Vice President Francia Márquez with a insulting analogy generally reserved for black people to deny their humanity. Her comments, expressed to the media in the Plaza de Bolívar in Bogotá, were recorded in a video that went viral and served as evidence for one of the most important lawsuits for racial discrimination and aggravated harassment.
The lawsuit filed by Vice President Márquez is not the first of its kind in the country, but it is perhaps the most relevant since the classification of racial discrimination as a crime in the Colombian penal code. The visibility of the lawsuit against the woman who verbally insulted the vice president sets a social precedent that reminds (if she does not teach) that verbal abuse of the Afro-Colombian population not only deserves social sanction, but also criminal sanctions. However, the legal resource of suing for acts of discrimination is not enough to fight racism in Colombia. For this, both affirmative actions and public policy measures at the national level are required, and to focus the problem transversally on the Government’s agenda.
Discrimination as a singular act
Acts of discrimination are frequent against racialized people in Colombia and Vice President Francia Márquez has spoken about the seriousness of harassment and harassment daily that you receive on the networks. The lawsuit filed by the vice president has given such visibility to the criminalization of acts of discrimination that the number of these lawsuits in the country has multiplied. According to the portal Open Data of the Government, during 2021 there were 832 criminal proceedings for acts of discrimination, while in 2022, the figure rose to 1,892. So far in 2023, with a cutoff of May 5, 731 criminal proceedings have been filed.
Acts of discrimination and harassment were classified as crimes in the Penal Code since 2011 with prison sentences of up to three years, and fines of up to fifteen minimum wages; about $3,800. Discrimination was defined in article 134 of the Penal Code as those acts that arbitrarily prevent the exercise of the rights of other people due to their race, nationality, sex or sexual orientation, disability, among others. Talking about an “act”, that is, a deliberate action, establishes a position regarding the handling of racism, since racial discrimination is not only the result of individual actions but also macro historical and social phenomena, difficult to determine. award only to one person or group of people.
For example, the ruling of the Constitutional Court T-098 of 1994, which at the time set a legal precedent in the treatment of discrimination, recognizes that discriminatory acts are so present in daily social practices and in the application of regulations by administrative authorities, that discrimination merges with the institutional framework itself. of the State. This point, about the systematicity and institutionalization of racial discrimination, represents a future challenge for the legislator and the current government, and an opportunity (or need) for learning for Colombian society.
Unlike countries like the United States or South Africa, where hierarchies and racial segregation were institutionalized during the 20th century (with the laws that supported Jim Crow and Apartheid), the racial hierarchies that subordinated Afro populations during colonial times they were not so explicitly institutionalized in 20th century Colombian law. This has led governments and the general public to assume that in Colombia racial discrimination is occasional and does not warrant serious treatment in public policy.
Additionally, we live with the myth of racial democracy, a social narrative that leads us to think that there is no racial discrimination in the country because we are the result of centuries of miscegenation. The idea that we are a “mixed nation” and that our culture (and physiognomy) is the happy result of a mixture of Afro, Indigenous and white-European cultures, prevents reflection on the conflicts and inequities generated by slavery and exploitation. economy of ethnic communities. Furthermore, the image of the mestizo nation clashes with the huge differences in indicators of health, income, and local development between racialized communities and white-mestizo populations. In other words, the myth of racial democracy is in direct contradiction with the reality of the country.
Beyond individual acts: structural racism
In order to understand individual expressions of racial discrimination and their persistence over time, we must know that they are not the result of isolated cases or “bad apples”, but that they are one of the manifestations of structural racism. This is understood as all the ways in which a society allows racial discrimination with phenomena and practices that reinforce each other, such as residential segregation, difficulties in accessing the health system, the precariousness of the educational system, restrictions for access to employment, the normalization of racial prejudice, among others.
To understand the concept of structural racism and how it applies to Colombia, let us remember that it is no coincidence that Afro populations are settled in places that are difficult to access: to escape slavery and ensure their lives and freedom, many Afro communities settled in spaces with low , if not nil, contact with white-mestizo institutions and society. In addition to these patterns of racial segregation, these regions have been the object of resource exploitation, and little state investment, which hinders access to health services and the educational system for the populations that inhabit them. Additionally, for Afro-descendants, the probability of being displaced is 84% higher than for the white-mestizo population, and face deliberate discriminatory practices that restrict their access to quality jobs. All of these mutually reinforcing factors do not constitute an “act” that can be attributed only to one person or group of people.
Given this reality, penalizing individual acts of discrimination is not a sufficient mechanism to undo structural racism, and this is clear in the Colombian Magna Carta. The Political Constitution of 1991 recognizes the need to promote equality in the country through measures designed to guarantee the equal enjoyment of rights of historically marginalized groups. These measures are called affirmative actions and consist of a social group being treated differently from the rest but in a positive way, with the aim of resolving a historical debt of a social, cultural or economic nature. For example, differential tariffs for public services are a type of affirmative action aimed at redressing the deep inequalities between the wealthiest and the poorest. These measures, however, are controversial and their implementation is limited to the supply of Government services, or to situations in which a State entity mediates. Realities such as the greater probability of forced displacement of Afro populations, for example, would hardly be resolved with affirmative actions.
From there comes the need to propose the elimination of structural racism from public policy. A great opportunity for this is presented in the Development Plan of the self-styled “Government of change”. He Development plan recently approved places ethnic and racialized communities at the epicenter of State action, particularly in the provisions on cadastre, land administration, agrarian reform, and the environment. Additionally, it is noteworthy that the plan proposes the development of a public policy for the eradication of racism and discrimination, led by the Ministry of Equality and Equity, and proposes the due regulation of Law 70 of 1993 (which recognizes the collective ownership of the land of the Afro-Colombian communities) within the six months following the entry into force of the Plan.
Added to the country’s historic debt to ethnic and racialized communities is the importance of the vice president and her constituents for the triumph of President Gustavo Petro. Time will tell if, when executing this ambitious Development Plan ‘Colombia World Power of Life’, the provisions regarding the elimination of discrimination are prioritized or not.
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