Protection order requires unblocking of the River Jiguamiandó

(Transalted by Steve Cagan, a CSN Volunteer Translator)

 

Friday, July 9, 2010

 

The Penal Chamber of the Supreme Court of Justice issued a ruling in the second instance of protection for the fundamental rights of the Afro-Colombian people of the Jiguamiandó watershed, based on the failure of INVIAS [the national roads institute—SC], the Maritime and River Sub-Director, the Mayor's Office of El Carmen del Darién, and the National Planning Department to develop the necessary proposals and works projects that would have permitted the unblocking of the Río Jiguamiandó.

 

The current situation of the watershed has caused the loss of crops as a source of work and of sustenance, displacement, stagnation of water, the production of serious diseases like malaria, pneumonia and skin infections and the inability to use the river as a transportation artery since 2003.

 

The Corporation considered that, given the provisional measures granted to this community in 2003 by ICHR {Inter-American Commission on Human Rights—SC]: The international commitments by the Colombian state around International Human Rights Law and International Humanitarian Law also oblige the authorities to adopt a focus on the prevention of forced displacement that would be sufficiently differentiated and specific so that it would have an impact on the fundamental causes of this phenomenon and its disproportionate impact on the Afro-Colombian communities and their members. They likewise argued that an injunction is ultimately compatible with a protection order and may serve to defend fundamental rights, since its goal is the same: to defend fundamental rights such as life and [physical] integrity.

 

In this sense, the Court pointed out that the communities of the Jiguamiandó are subject to special constitutional protection (when the subject is an affirmative action to defend their fundamental rights) because of the discrimination they have suffered. And it reiterates the unconstitutional state of affairs that these communities have had to confront, because of forced displacement, according to the decision T-025 of 2004 and the follow-up order 005 of 2009, which argues from a focus that differentiates the Afro-Colombian communities.

 

The High Court asserted that: this condition of being subject to special protection is imposed on state authorities of every level with respect to the Afro-Colombian population that has been the victim of forced displacement, special obligations in regards to prevention, attention to and safeguarding of their individual and collective rights, which must receive particular diligence in their being carried out. Such a quality of being subject to special constitutional protection justifies, as was indicated in decision T-250 of 2004, the adoption of measures of positive differentiation, which respond to their conditions of vulnerability and defenselessness, and work, through a preferential treatment, towards making real the enjoyment of their rights. [1 <http://justiciaypazcolombia.com/Tutela-ordena-destaponamiento-del#nb1> ]

 

The Court showed that: the authorities were conscious of the problem of the blocking of the river since 2003. Once the community returned to their territory, they had meetings with the participation of national-level bodies, which have intervened within the framework of the measures decreed by the Inter-American Human Rights Court in favor of this community and, despite have the project [approved] to carry out this work, the work has not materialized because it did not satisfy the legal requirements so the National Planning Department, through the Royalties Fund, and based on it, would develop the National Council of Economic and Social Policy (CONPES) document, in order to appropriate the resources. The solution to the problem involves the intervention of several national- and municipal-level institutions, which, while they may have carried out the studies, developed the project and presented it to the corresponding entities, have not subjected it to the processes established in the law in order to achieve its budget approval, nor have they proceed with due promptness and diligence.

 

The Court pointed out that the Ministry of Transport, at the time they presented the project, should have considered the fulfillment of all the legal demands, especially considering that it is an entity that is predominant for national order, with knowledge of the theme and with the possibility of interacting with structures like INVIA and the Maritime and River Sub-Director, this latter entity being responsible for work projects in river transport and whatever is related to the unblocking and freeing up of the river in question.

 

Then, in the face of the problems that overwhelm the community of the River Jiguamiandó, and the precariousness of the capacity for institutional response in order to arrive at a solution to the problem of unblocking and cleaning up the river, the protection judge cannot fail to recognize the vulnerability of individual and collective rights that accompanies this lack of official action, and which is illustrated by the videos that were attached to this document and in which can be seen the lamentable conditions of the community, which have their origin in sedimentation and piling up of dead trees.

 

All that, added to the report delivered by the Colombian Geology and Mining Institute (INGEOMINAS) in February, 2003, which brings to light the piling up of dead trees, seismic threats, threats from hurricane-force winds, circumstances that the constitutional judge should think about with demanding rigor in their zeal to protect fundamental rights that like those of life, personal integrity, health and subsistence of the community bringing the action, are seen as seriously and fundamentally threatened.

 

From that objective and judgmental appreciation of the omissions in official behavior which up until today have indefinitely delayed through time an offer of a reply and solution that were opportune and effective, which would permit the threats against the fundamental constitutional rights of the community bringing the action to be eliminated, it is imperative that the National Roads Institute, the Maritime and River Sub-Director, the Mayor's office of Carmen del Darién, and the National Planning Department adopt in coordination the necessary measures with the goal of achieving the unblocking and cleaning up of the Río Jiguamiandó.

 

In this sense, the Court affirmed: from the constitutional point of view, it is imperative to allocate the necessary budget so that the fundamental rights of the displaced are fully achieved. The constitutional obligation of the state to guarantee adequate protection to those who, because of forced internal displacement find themselves in undignified living conditions cannot be postponed indefinitely. . [2 <http://justiciaypazcolombia.com/Tutela-ordena-destaponamiento-del#nb2> ]

 

Based on the preceding reflections, the Penal Chamber recognizes the source of the action brought, and consequently revokes the challenged decision and in its place orders the Ministry of transport, INVIAS, the Maritime and River Sub-Director, the Mayor's Office of Carmen del Darién and the National Planning Department to, within the year following notification, move forward all the proposals and paperwork that might be necessary and indispensable for the approval and disposing of the budget that will allow the works for this project, with the objective of accomplishing the unblocking and cleaning up of the Río Jiguamiandó, to be made real and carried out.

 

The Court orders the Ministry of Social Protection, the Director of the Administration Department of health of the Department of Chocó and the Mayor of the Municipality of Carmen del Darién, that they facilitate access to health services for the community that makes up the Great Council of the Río Jiguamiandó Watershed, and that they begin vaccination plans and fumigation programs aimed at eradicating the disease centers; to do this they will have to adopt an action program, with a precise calendar, to begin and carry out these tasks within a period of six months, counted from being notified of this decision and, in accordance with article 27 of decree 2591 of 1991, they will have to present a report every other month, communicating the progressive actions directed towards fulfilling the order.

 

Finally, the SCJ (Supreme Court of Justice) orders the Social Action off of the President of the Republic [a national agency responsible for administering social programs in the name of the government—SC] to proceed immediately to coordinate the public works for unblocking and cleaning of the Río Jiguamiandó with the entities responsible for providing access to health, vaccination plans and fumigation programs that are indispensable for the municipality of Carmen del Darién. This entity will be subjected in carrying out its tasks to the terms [that were] fixed for the entities that it must coordinate.