Inter-American Court of Human Rights Affirms Indigenous Peoples’ Right to Freedom of Expression in Guatemala
On December 17, 2021, the Inter-American Court of Human Rights announced its decision in the case Indigenous Maya Kaqchikel Peoples of Sumpango vs. Guatemala, declaring the Republic of Guatemala “internationally responsible for the violation of the rights to freedom of expression, equality before the law and participation in cultural life” of Indigenous Peoples.
The historic decision comes after decades of activism by members of the Indigenous community radio movement in Guatemala fighting for their freedom to operate radio stations and broadcast information in Indigenous languages to and from their communities. Currently, in Guatemala, Indigenous community radio stations are not legalized after more than 26 years since this right was guaranteed in the Guatemalan Peace Accords. Today, they continue to operate in a legal gray zone that has led to frequent persecution, disparagement, and criminalization by mainstream media conglomerates, the national police, and politicians.
The case, brought by US-based Cultural Survival, Guatemala-based Associación Sobrevivencia Cultural, and submitted with support from the Human Rights and Indigenous Peoples Clinic at Suffolk University Law School was originally filed on September 28, 2012, arguing that Guatemala’s telecommunications law excludes Indigenous Peoples from accessing their own forms of media via community radio. This came after Sobrevivencia Cultural in October 2011 submitted an action of unconstitutionality to Guatemala’s Constitutional Court, declaring economic and ethnic discrimination in the State’s mechanism for distribution of radio frequencies. The action argued that by auctioning off frequency licensees to the highest bidder, Indigenous communities, who historically and currently are among the most economically marginalized in the country, lack fair access to state-owned media.
“The Inter-American Court correctly holds that freedom of expression is a cornerstone of any democratic society. Therefore, the decision is a major victory for Indigenous Peoples in Guatemala and a great opportunity for the Guatemalan State to be a leader in making amends to Indigenous communities, who constitute half of the population. It is also an important precedent for Indigenous Peoples in Latin America as it affirms the rights of Indigenous Peoples to collective and individual freedom of expression, and the right to practice their culture without discrimination,” says Monica Coc Magnusson (Q’eqchi Maya), Cultural Survival's Director of Advocacy and Policy.
Anselmo Xunic Cabrera (Maya Kaqchikel), a member of Radio Ixchel, a community radio station from Sumpango Sacatepequez, Guatemala, stated, “This is such great news and the product of a collective, coordinated effort supported by different national and international civil society organizations. I believe that this news moves the heart. This has been a historic struggle for Indigenous Peoples. This decision will have an impact in Latin America and around the world. This sentence is a blow to the State, which has been racist, exclusive, and criminalizing.”
On April 3, 2020, the Inter-American Commission on Human Rights (IACHR) referred the case to the Inter-American Court of Human Rights. On June 9-10, 2021, the Inter-American Court of Human Rights heard passionate testimonies from representatives of Indigenous community radio stations, experts on the right to freedom of expression and Indigenous rights, and representatives of the State of Guatemala. One of the only ways to obtain a radio license is by taking part in a frequency auction, however, as Xunic Cabrera stated during the hearing, “The auctions are discriminatory also because from an economic standpoint we can’t pay that amount and we can’t compete as Indigenous Peoples.” María Pedro de Pedro (Maya Q’anjob’al) from Radio Snuq’ Jolom Konob’ in Santa Eulalia, Huehuetenango stated, that through radio “We are protecting our cultural identity, we are protecting our culture, our music, our art, our traditions, our customs, our language, our surnames....The microphone is power.”
José Francisco Calí Tzay (Maya Kaqchikel) Special Rapporteur on the Rights of Indigenous Peoples emphasized that “access to community radio is critical to the transmission of language, culture, and how Indigenous Peoples rely on this medium to inform and educate their communities, especially during the global health pandemic, COVID-19. Obstacles to radio frequency access translate into indirect discrimination against Indigenous communities perpetuated through apparently neutral legislation that, de facto, discriminates against Indigenous Peoples, as is the case of Guatemala’s general telecommunications law.”
The State of Guatemala has continuously ignored national and international laws and obligations regarding freedom of expression and many specific recommendations to recognize the community radio stations of Indigenous Peoples while being one of the state signatories of the International Labour Organization Convention (ILO) 169 and the United Nations Declaration on the Rights of Indigenous Peoples. Instead, the State has promoted discriminatory laws such as the General Telecommunications Decree 94-96 in force since 1996, which uses auctions as the only mechanism to legally access radio frequency licenses. In 2012 this legislation was extended for another 20 years via Decree 34-2012, without taking into account or consulting with Indigenous Peoples. Since 2006, the Public Ministry has misused the penal code to criminalize community radio stations. Proposed legislation to recognize Indigenous Peoples' media have been stymied for decades, including Bill 4087, pending approval since 2010.
“This decision is a victory not only for Indigenous communities in Guatemala but also for Indigenous Peoples throughout this hemisphere in protecting their rights to expression and culture and promoting pluralism in media. What is of particular significance is the Court’s recognition of Indigenous Peoples’ right to operate their own media, and the relationship of this right to freedom of expression, culture, self-determination, and non-discrimination. This analysis and recognition by the Inter-American Court of Indigenous Peoples’ right to media may impact how other judicial and human rights bodies interpret and promote this right under the UN Declaration on the Rights of Indigenous Peoples,” stated Nicole Friederichs, lead counsel on the case and Clinic Director at Suffolk University Law School in Boston, MA.
The Court’s decision is a hard-fought win and a major milestone for Indigenous rights. The Court ruled that the State of Guatemala violated Articles 1.1 (Obligation to Respect Rights), 2 (Domestic Legal Effect), 13 (Freedom of Thought and Expression), 13.2, 24 (Right to Equal Protection), and 26 (Progressive Development) of the American Convention on Human Rights. Decisions of the Inter-American Court are binding, meaning that the state of Guatemala is required to change the law as Court ruled in favor of the victims and petitioners. The Court ordered that Guatemala facilitate the identified victims’ free operation of community radio stations; amend domestic laws to recognize Indigenous community radio as a unique means of communication; establish simple procedures for obtaining licenses; reserve a sector of the radio spectrum for Indigenous community radio; and abstain from criminalizing individuals who participate at Indigenous community radio stations. The ruling also includes reparations for four of the affected communities.
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For more information, visit www.cs.org.
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