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In late September, during protests against reforms proposed by the government of President Gustavo Petro, one of the demonstrators, Luz Fabiola Rubiano de Fonseca, issued discriminatory comments against the Afro-Colombian population and referred to Vice President Francia Márquez with an insulting analogy usually reserved for Afro-Colombian people to deny their humanity. His comments, expressed to the media in Bogota's Plaza de Bolivar, 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 not teaches) that verbal abuse of the Afro-Colombian population not only merits social sanction, but also criminal sanction. However, the legal remedy of suing for acts of discrimination is not enough to fight racism in Colombia. This requires both affirmative action and public policy measures at the national level, and a cross-cutting focus 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 out about the seriousness of the daily harassment and harassment she receives on social media. The lawsuit filed by the vice president has given such visibility to the criminalization of acts of discrimination that the number of such lawsuits in the country has multiplied. According to the Government's Open Data portal, during 2021 832 criminal proceedings were filed for acts of discrimination, while in 2022, the figure rose to 1,892. So far in 2023, with a cut to May 5, 731 criminal proceedings have been filed.
Acts of discrimination and harassment were criminalized 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 Criminal Code as acts that arbitrarily impede the exercise of the rights of other persons on account of their race, nationality, sex or sexual orientation, disability, among others. That one speaks of "act", that is, of a deliberate action, establishes a position regarding the management of racism, since racial discrimination is not only the result of individual actions but also of macro historical and social phenomena, difficult to attribute only to a person or group of people.
For example, Constitutional Court ruling 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 rules by administrative authorities that discrimination merges with the very institutionality of the State. This point, on 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 such as the United States or South Africa, where hierarchies and racial segregation were institutionalized during the twentieth century (with the laws that upheld Jim Crow and Apartheid), the racial hierarchies that subordinated Afro populations during the colony were not institutionalized so explicitly in twentieth-century Colombian legislation. This has led governments and the general public to assume that in Colombia racial discrimination is occasional and does not merit 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 "mestizo 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 the economic exploitation of ethnic communities. Moreover, the image of the mestizo nation clashes with the gigantic differences in health, income and local development indicators between racialized communities and white-mestizo populations. In other words, the myth of racial democracy is in direct contradiction to the reality of the country.
Beyond individual acts: structural racism
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 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 access to the health system, the precariousness of the educational system, restrictions on access to employment, the normalization of racial prejudice, among others.
To understand the concept of structural racism and how it applies to Colombia, let's remember that it is no coincidence that Afro populations are settled in places of difficult access: to escape slavery and ensure their life and freedom, many Afro communities settled in spaces with low, if not zero, contact with white-mestizo institutions and society. In addition to these patterns of racial segregation, these regions have been subject to 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 they face deliberate discriminatory practices that restrict their access to quality jobs. All these factors, which are mutually reinforcing, do not constitute an "act" that can be attributed only to one person or group of persons.
Given this reality, criminalizing 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 by 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 correcting a historical debt of a social, cultural or economic type. For example, differential tariffs in public services are a type of affirmative action aimed at addressing 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-descendant populations, for example, would hardly be resolved with affirmative action.
Hence 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". The recently approved Development Plan places ethnic and racialized communities at the epicenter of State action, particularly in the provisions on cadastre, land administration, agrarian reform, and the environment. In addition, it should be noted 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 proper regulation of Law 70 of 1993 (which recognizes the collective ownership of land by Afro-Colombian communities) within six months of the entry into force of the Plan.
To the country's historical debt with ethnic and racialized communities is added the importance of the vice president and her constituents for the triumph of President Gustavo Petro. Time will tell whether, in implementing this ambitious Development Plan 'Colombia World Power of Life', provisions regarding the elimination of discrimination are prioritized or not.
Ana María Ospina Pedraza holds a PhD in Political Science from the University of Massachusetts, Amherst. She currently works in the Directorate of Rights and Policy Design of the District Secretariat for Women of Bogotá.