Nearly two months after the declaration of the state of emergency and national quarantine, and after over 50 demands, proposals and pronouncements by indigenous organisations and their allies, on 10 May the Council of Ministers finally published Decree Law 1489 presenting the national strategy for the protection of indigenous peoples, including “extraordinary and urgent measures”. It has met with an avalanche of criticisms.
The legislation aims to achieve four objectives:
- guarantee the defence of linguistic rights;
- promote the use of native languages in the delivery of public services;
- ensure the articulation of public sector actions with indigenous organisations; and
- safeguard the life, health and integrity of indigenous peoples.
These objectives are to be attained through five broad strategies:
- a health response led by the health ministry;
- territorial control by the police and armed forces;
- provision of food and other essentials by the culture ministry, in coordination with the children’s meals programme, Qali Warma;
- dissemination of information and early warnings by the culture and health ministries; and
- the protection of indigenous peoples in voluntary isolation and initial contact, again by the culture and health ministries.
More specifically, the government offered to distribute 420,000 face masks to indigenous communities, to introduce a protocol for their protection, to guarantee an unspecified number of rapid tests and medicines, to include indigenous representatives as members of each regional government’s Covid-19 Command, to transfer 5 million soles (around US$1.5 million) from the emergency fund to the culture ministry, and to further restrict exceptional visits to reserves for indigenous peoples in isolation.
The national indigenous women’s organisation ONAMIAP characterised the response of the culture ministry as “late, inconclusive and reflecting an obstructionist attitude” and called for an immediate and exhaustive enquiry into the activities of the minister and vice-minister.
Constitutional lawyer Juan Carlos Ruiz, head of the Legal Defence Institute’s (IDL) indigenous peoples’ programme, presented a number of detailed criticisms:
- The strategies need to be adapted and implemented in each indigenous territory and not simply at the national level.
- There is as yet no public strategy for addressing the health emergency affecting indigenous peoples.
- The legislation does not indicate how the measures will be implemented, given the limited capacities and resources of regional and local governments and the limitations on national government agencies in reaching remote indigenous communities.
- The measure to protect indigenous peoples will be implemented while economic activities, such as logging and other extractive activities, which are potential threats, are due to recommence.
- There is no evidence that the proposed measures have been discussed or coordinated with indigenous peoples’ organisations.
- There is no recognition that most communities have already assumed control of their territories by isolating them from the pandemic, a matter that needs to be acknowledged by state security forces.
- The amount budgeted is insufficient.
Marco Huaco, a lawyer specialized in indigenous issues, considered that the legislation offered nothing new, except for the allotment of 5 million soles. The proposal to offer culturally sensitive state services has long been enshrined in legislation, though ignored in practice. He sees the so-called ‘strategy’ as simply a list of the pre-existing responsibilities and activities of the ministries which the government wants people to believe are “extraordinary and urgent measures”. He concluded: “there seem to be many in the ministries of culture and health who want to seem to be doing something in order to continue doing nothing”.
Luis Hallazi, lawyer and political scientist, stated that it will be very difficult to explain the institutional silence of the culture ministry after abandoning its functions for 56 days during which indigenous peoples experienced “weariness and desperation”. He argued that the legislation did not generate confidence that the pandemic in indigenous territories would be confronted successfully because of the lack of clarity in the strategies proposed. He said that concrete measures for the participation of the communities, federations and regional and national organisations were needed. He also asked: “How will we implement and monitor the intercultural focus so that it does not end up being simple rhetoric? How do we generate effective mechanisms for participation, coordination and articulation with the representative organisms of indigenous peoples? How do we integrate the representatives of indigenous organisations in the multiple levels of the state?” He also pointed out that the legislation did not include consideration of actions regarding intercultural education, family farming and the different scenarios for reactivating the economy.
Maritza Quispe, lawyer at the IDL, also claimed that the legislation represented a “copy and paste” of existing norms that do not effectively protect indigenous peoples in isolation, arguing that this protection required that their territories be intangible. The most effective protection measure would involve the legal recognition of five indigenous reserves for peoples in isolation that has been on the agenda for over ten years. She also argued that people should be prohibited from entering these areas to extract their natural resources and that all concessions in their territories be prohibited.
The environmental lawyer Carlos Soria highlighted the serious difficulties in achieving coordination between sectors within the state and the limited capacities at the regional and local levels, all of which could limit implementation of the strategies unless they are addressed. He proposed the creation of an emergency committee with appropriate communication strategies to ensure the flow of information and effective coordination between the national and community levels.
Former congresswoman and Andean indigenous activist Tania Pariona observed that the legislation seemed to assume that the country was at the beginning of the crisis when there were still few cases. She said that it also seemed that the pandemic has been underestimated. “There was no focus on prevention or planning and even less on cultural, linguistic or territorial differences to take into account our diversity,” she says, “this reveals a weak indigenous institutionality within the state.” Furthermore, she argued that the legislation contained nothing about the role of the regional governments or the decentralised organisms within the culture ministry. Finally, she considered it a serious mistake to ignore the Andean indigenous communities: “It is a step backward that confirms the stereotype about indigenous peoples, because there are indigenous in urban and marginal urban zones, popular sectors, the Andean zone and the Aymara zone.”
For its part, the national Amazonian indigenous organisation AIDESEP, weakened by the infection of its president and other leaders, demanded of the government speed and a sense of urgency in the implementation of the strategies and that the legislation should not stimulate bureaucratic buck-passing between the ministries and regional governments. AIDESEP also considered the amount of money allocated to be “insulting bread crumbs”. It urged that health personnel be sent out to the communities to diagnose illnesses and distribute medicines and that indigenous representatives be incorporated into regional Covid-19 Commands. It also expressed concern that indigenous self-isolation would be weakened by state intervention. Finally, it argued that “the situation is made more serious by Supreme Decree 080 providing for the reactivation of activities like mining, petroleum and logging in the jungle”.
The overall concerns are that the strategies and measures proposed in the legislation are too little and too late and are lacking in detail. Despite the need for a rapid response, implementation would require further, more specific regulations. Grave reservations have been expressed about the capacity and commitment of the state at all levels to implement the measures effectively. Despite the long period of gestation of these strategies, it seems that much more work and more resources will be needed before they can be effectively implemented.