COMMITTEE ON THE ELIMINATION
OF RACIAL DISCRIMINATION
Forty-seventh session

CONSIDERATION OF REPORTS SUBMITTED BY STATES PARTIES
UNDER ARTICLE 9 OF THE CONVENTION
Concluding observations of the Committee on the
Elimination of Racial Discrimination

Nicaragua

The fifth, sixth, seventh, eighth and ninth periodic reports of Nicaragua, submitted in one document (CERD/C/277/Add.1), were considered by the Committee at its 1110th and 1111th meetings, held on 7 and 8 August 1995 (see CERD/C/SR.1110 and 1111).

The report was introduced by the representative of the State party, who referred to the tragic events that had affected his country, in particular the political struggles that had given rise to civil wars and dictatorships. With the election in 1990 of Mrs. Chamorro, the candidate of a coalition of 14 political parties, Nicaragua had embarked on a process of transition towards economic and social reconstruction, strengthening of democracy and national reconciliation. To that end, the main programmes being implemented by the authorities related to combating poverty, decentralization and encouraging the establishment of small- and medium-sized businesses. The process was fraught with difficulties, however, due to the country's poor economic and social situation, with the highest rate of external indebtedness in the world, a very low GDP and a very high birth rate (3.7 per cent).

Article 5 of the 1987 Constitution, amended in 1995, enshrined the principle of political, social and ethnic pluralism, by recognizing for the first time the existence of indigenous populations who thus enjoyed constitutional rights and guarantees, in particular the right to preserve their identity and their culture, to adopt their own social structure and administer their local affairs and to maintain community forms of land ownership, enjoyment and use. Article 121 of the Constitution stipulated that the indigenous populations of the Atlantic Coast regions were entitled to a multicultural education in their region. Most of the ethnic groups in Nicaragua lived in the two Atlantic Coast regions and were composed chiefly of mestizos, Miskitos, Creoles, Sumus and Ramas. Those regions were the least densely populated in the country, with a population that was 35 per cent urban and 40 per cent rural, with the rest living in scattered areas.

The legal system set up by the authorities in 1986 to protect the minorities in accordance with the Convention was described in detail in the report, in particular the relevant provisions of the Constitution and Act No. 28, the Autonomy Statute of the Atlantic Coast Regions of Nicaragua. The latter provided for the establishment of Governments of the Autonomous Regions, comprising a Regional Council, a Regional Coordinator and municipal and communal authorities, with decision-making power regarding the use of natural resources.

Thanking the representative of Nicaragua for the additional information he had provided in introducing the report, the Committee expressed its satisfaction at the resumption of dialogue with Nicaragua, but noted with regret that the report did not contain specific information on the implementation of the anti-racial-discrimination legislation and the Convention. The Committee reminded the representative of Nicaragua that regularity in submitting periodic reports under the Convention (every two years) was essential for an effective dialogue with the Committee.

Regarding the general part of the report, the members of the Committee requested more information on the composition and operation of the Nicaraguan Institute for the Development of the Autonomous Regions (INDERA) and up-to-date information on the indigenous populations, in particular their composition, geographic location and economic situation, throughout the territory of the country. The members of the Committee pointed out that the report contained information on the ethnic minorities of the Atlantic Coast only and asked about the other minorities and indigenous groups living in Nicaragua, especially those on the Pacific coast. They also asked about the status of international conventions, in particular the International Convention on the Elimination of All Forms of Racial Discrimination, in Nicaraguan domestic law.

With regard to article 2 of the Convention, the members of the Committee asked for further information on the policies implemented to combat all forms of racial discrimination. Concerning article 2, paragraph 2, they also asked for more information on the effective functioning and strengthening of the powers of the two Regional Councils set up by the 1987 Autonomy Statute, especially with regard to conservation and use of natural resources and to their degree of political and administrative autonomy with respect to the central government in Managua. Information was also requested on the situation of the special fund for social development and progress provided for the two Autonomous Regions and on the amount of financial resources allocated annually by the central authorities to the operating budgets of the autonomous governments. They also asked for further information on the draft legislation to be prepared, in consultation with the indigenous populations concerned, on the rational use and conservation of the natural resources of the autonomous regions.

The Committee noted that the information provided in connection with article 3 of the Convention was inadequate, inasmuch as practices identical to apartheid continued to exist in several parts of the world. The members of the Committee therefore asked for additional information on the measures taken by the authorities under article 3 of the Convention.

With regard to article 4 of the Convention, in view of the lack of information in the written report, the members of the Committee asked for further details on the positive legislative steps taken by the authorities, especially in the criminal sphere, to make all forms of racial discrimination punishable offences; in that connection, they asked the representative of Nicaragua whether the Statute on the Rights and Guarantees of Nicaraguans, mentioned in the previous report, article 22 of which prohibited all propaganda against peace and any advocacy of national, racial or religious hatred, was still in force, and if so, whether it was applied and in what context.

Noting the lack of information on article 5 of the Convention in the report, the Committee asked for additional information on the steps taken to implement that article, in particular the measures adopted, and their application, to ensure the equality of all before the law and the exercise of political, civil, economic, social and cultural rights by everyone, without discrimination.

Concerning article 6 of the Convention, the members of the Committee asked for explanations of the steps taken by the authorities to facilitate the return and resettlement of the members of indigenous groups who had fled to Honduras and Costa Rica during the hostilities, in particular long-term measures; they also asked for information on the functioning of the judicial bodies in the Autonomous Regions and on the administration of justice in general in those regions, which according to article 18 of the Autonomy Statute was governed by special regulations. They also asked what remedies were available in cases of racial discrimination. Information was also requested on the establishment of the Human Rights Advocate and on his powers and functions.

In connection with article 7 of the Convention, the members of the Committee asked what were the "cases specified by law" in which, according to article 11 of the Constitution, "the languages of the communities of the Atlantic Coast region of Nicaragua shall also be used officially". Since the relationship of the indigenous peoples of the Atlantic Coast with their land was basic to their culture, the members of the Committee asked what was the area of the inalienable lands of those groups and requested details of the provisions governing the mineral resources found on them.

In response to the questions and comments by members of the Committee, it was said by the representative of the State party that the Nicaraguan Institute for the Development of the Autonomous Regions (INDERA) had recently been disbanded, firstly because its main function, to bridge the gap between the national Government and the Atlantic Coast autonomous regions, was no longer relevant as regional governments and councils had been consolidated, and secondly because the management of the Institute was primarily handled by representatives of the Misquito community, thus leading to discontent among the members of other ethnic groups who felt they were not adequately represented. He said that there were various indigenous communities in the Pacific coast regions, with populations of between 14,000 and 28,000 inhabitants, but in general those indigenous populations had been assimilated into the local community, thereby losing their traditional cultures and customs.

Responding to specific questions regarding the exploitation of natural resources in the autonomous regions, the representative of the State party said that the central Government issued the licences, which were subject to the approval of the Regional Councils. The regional territory could not be yielded without the prior approval of the Regional Councils, the resulting disputes between the State and the Regional Councils being dealt with by the Supreme Court of Justice.

The representative added that concerning the bilingual inter-ethnic education programme, teachers, instructors and leaders and representatives of indigenous communities were directly involved in its implementation, which had covered 13,000 children between pre-school age and the fourth grade of primary school, in 1992. A bilingual teacher training centre had been set up in Puerto Cabezas in the North Atlantic Coast region. He added that in the autonomous regions, the languages spoken by the indigenous communities were used officially in the administrative organs of the regions, in addition to Spanish; translations of employment contracts and collective agreements must be guaranteed and all staff involved in the administration of justice and law enforcement officials must be able to understand the languages spoken by all parties involved in a dispute. In the field of technical education, the Nicaraguan Institute of Technology and a number of indigenous organizations had organized between 40 and 50 courses aimed at job creation and the enhancement of technical skills, particularly for the benefit of demobilized persons, returnees and women heads of household, in about 60 indigenous communities. Some 300 people had participated in workshops designed to encourage the launching of small-scale projects and micro-enterprises.

The representative said that his Government had allocated funds through the Emergency Social Investment Fund (FISE), which had been promoting the development of economic and social infrastructures such as bridges, roads, waterways, educational buildings, health centres and in reforestation programmes. The Nicaraguan Institute of Energy, with foreign assistance, had invested US$ 5 million in the previous two years in new electric power plants designed to improve energy distribution in urban centres such as Bluefields and Puerto Cabezas.

Regarding tourism in the autonomous regions, the Ministry of Tourism was preparing cultural and environment-friendly tourism programmes, in which members of the communities were trained to run the projects, and advisory services were available for the launching of community-based initiatives.

The representative said that a Commission on Ethnic Affairs and Indigenous Communities had been set up in the National Assembly, all its members being from the indigenous population; this Commission had prepared the Nicaraguan Plan of Action for the International Decade of the World's Indigenous People, comprising several themes and activities each year until the year 2004.

At the same time, the representative emphasized that it was impossible to redress in such a short period of time the consequences of civil wars, foreign occupation, dictatorship, natural disasters and negligence on the part of the central authorities.

Concerning Nicaraguan involvement in the international and interregional protection of the rights of minorities, the representative said that Managua was the headquarters of the Indigenous Parliament of America, which recently held the eleventh Inter-American Indigenous Congress, during which the Managua Declaration was adopted; the Declaration noted the urgency of recognizing the tenure of land belonging to the continent's indigenous populations, of establishing coordinating machinery between States and indigenous populations to facilitate decision-making on matters concerning those populations, and of involving indigenous peoples in all aspects of political, legal, economic and social life. Nicaragua had actively participated in the activities of the Working Group on Indigenous Populations of the Subcommission on Prevention of Discrimination and Protection of Minorities since its establishment in 1982 and it also supported the drafting of a declaration on the rights of indigenous peoples.

The Committee thanked the representative for the supplementary information provided, but noted that the delegation had failed to explain how it was complying with article 4 of the Convention.

Concluding observations

At its 1124th meeting, held on 16 August 1995, the Committee adopted the following concluding observations:

(a) Introduction

Appreciation is expressed for the resumption of the dialogue between Nicaragua and the Committee, and for the detailed and frank report submitted by the State party. It is however regretted that the report provided insufficient factual information, especially with regard to the implementation of the Convention and the related domestic legislation. The delegation which presented the report is commended for the useful additional information provided orally, in response to the questions raised and comments made by the Committee members, and its commitment to provide the Committee with written answers is most welcome.

The armed conflict raging in the country during the past decade, in which the indigenous populations were, willingly or unwillingly, used as political, military and strategic tools, dominated the overall human rights picture of the country, and still has some consequences for the full enjoyment of human rights by all Nicaraguans, together with the political problems of governance and economic crisis, which still persist.

It is noted that the State party has not made the declaration provided for in article 14 of the Convention, and some members of the Committee requested that the possibility of such a declaration be considered.

(b) Positive aspects

The Constitution of 1987, which recognizes for the first time the multi-ethnic character of the Nicaraguan population and grants to all persons the enjoyment of the rights proclaimed in various international and regional instruments, is welcomed. Other encouraging developments include the provisions of the same constitution and of Act No. 28 of 1987, known as the Autonomy Statute, which establishes a special regime of autonomy for two regions of the Atlantic coast of Nicaragua where most of the ethnic minorities and the indigenous groups live. The Autonomy Statute recognizes and guarantees, among other things, the communal form of land ownership of the peoples of the two autonomous regions and their right to education in their own language.

The Committee welcomes the constitutional amendments of 1995, especially the provisions which emphasize the ethnic pluralism of Nicaragua and reinforce the rights of the indigenous populations and other ethnic groups of the Atlantic coast, including the right of the regional councils to approve agreements for the exploitation of their natural resources.

The adoption of the Amparo Act in 1988, providing for the right to habeas corpus in the constitutional, administrative and criminal spheres, and the statement made in the report that cultural, social and other factors are taken into account when members of the indigenous communities are tried, are both welcomed. Note is taken with appreciation of articles 549 and 550 of the Criminal Code, inspired by the Convention on the Prevention and Punishment of the Crime of Genocide.

The elections in 1990 and 1994 of the two Regional Councils, which are granted important functions and powers by the Autonomy Act of 1987, in particular with regard to the conclusion of agreements between the regional and central governments on rational use and exploitation of the regions' natural resources, are noted with satisfaction, as is the constitutional provision of 1995 to enact a new and more complete law for the autonomous regions.

It is noted with appreciation that efforts are being made by the authorities to set up a multi-lingual education system in favour of the indigenous communities, and that, in accordance with Act. No 162, indigenous languages besides Spanish are of official use in the autonomous regions.

The establishment in the constitutional reforms of 1995 of the Office of Human Rights Ombudsman to inquire into human rights violations and to monitor the implementation of international human rights instruments ratified by Nicaragua, such as the Convention, is welcomed.

The efforts made by the State party, in cooperation with the United Nations, to arrange the repatriation and the resettlement of the Miskitos, Sumus and Creoles who fled to neighbouring countries during the civil conflict, are commended.

(c) Principal subjects of concern

Concern is expressed as to the status of the Convention in the domestic legal order of Nicaragua and the lack of information about this in the report and during the oral presentation.

It is noted with concern that the State party has not implemented the provisions of article 4 of the Convention, which call for the adoption of positive measures and specific penal legislation to combat racial discrimination.

The realization of economic and social rights is a matter of continuous concern, in particular as the so-called structural adjustment measures and the privatization of State property have had negative consequences on the enjoyment of the economic, social and cultural rights of the Nicaraguan people, especially on its most vulnerable sectors and among them the indigenous communities.

It is regretted that insufficient information was provided on the implementation of articles 5 and 6 of the Convention, in particular on specific provisions of the domestic legislation adopted to implement these articles and on the number of complaints of racial discrimination brought before the courts.

Concern is expressed at the ratio of communal land to private land in the autonomous regions, with particular regard to the mining rights and at inequalities in the sharing of the benefits of the exploitation of natural resources in the autonomous territories between the regional and the central authorities.

Further concern is expressed at the lack of adequate consultation with the regional authorities in the decision-making process by the central authorities, thus leading to insufficient participation of the indigenous groups in decisions affecting their land and the allocation of the natural resources of their land, their cultures and their traditions.

(d) Suggestions and recommendations

The Committee recommends that the State party implement the obligations under the provisions of article 4 of the Convention.

In view of the importance of measures in the fields of teaching, education, culture and information to combat prejudices which lead to racial discrimination and to promote understanding, tolerance and friendship among racial and ethnical groups, the Committee recommends that the State party takes all necessary measures in those fields in accordance with article 7 of the Convention.

The Committee recommends that, in its policy-making on matters relating to racial discrimination at large, the Government take into account the general recommendations adopted by the Committee, including those relating to the establishment of a national commission for the purpose of facilitating the aims and purposes of the Convention (general recommendation XVII (42)) and to the training of law enforcement officers (general recommendation XIII (42)).

The Committee recommends that the State party ratify the amendments to article 8, paragraph 6, of the Convention, adopted by the fourteenth meeting of States parties.

The Committee recommends that the State party's tenth periodic report, due on 17 March 1997, be a comprehensive report.