CHAPTER IX

RACIAL DISCRIMINATION

A. PRESENT SITUATION

1. Brazilian society is probably the most culturally and racially diverse of all contemporary societies. This diversity was achieved despite the different social circumstance of the various ethnic groups that have blended together to create what is present-day Brazil such as indigenous peoples, European colonizers, immigrant workers, and Africans brought to Brazil as slaves.(1) This mix was not always harmonious nor is equitable or completed. Even today, differences persist that make for less than an acceptable level of equality, and this discrimination is often reflected in flagrant abuses of human rights, particularly as to equality, nondiscrimination, and the right to dignity.

2. These racial inequalities(2) are mirrored in unequal distribution of wealth and opportunity. With respect to income, one half of all negroes receive a monthly income of less than two minimum wages (US$270) whereas the percentage of whites in this income bracket was 40% in 1995. In the upper income brackets, however, while 16% of whites receive over 10 minimum wages, the proportion of blacks, at 6%, is considerably lower. Whites earn on average more than 2.5 times what black workers make, and four times as much as black women workers.(3)

3. As far as education is concerned, in 1992, illiteracy amongst blacks amounted to 30%, and as much as 36.4% in the North East.(4) The problem of illiteracy is attributable to the lack of access to formal education by the black population and to frequent school absenteeism by school age blacks who are often compelled to leave school to help support their families. With respect to level of schooling, 4% of all blacks are admitted to university while the percentage is 13% for whites. This difference in access to university education is reflected in enrollment for Sao Paulo University, where in 1994 only 2% of the student body of 50,000 were negroes. This situation is much the same at other universities across the country, even in cities such as Bahia, where the population is predominantly of African descent.

4. Discrimination is also found in politics, where only 11 of a total of 513 congressmen were black in 1995.(5)

5. For the population overall, black women suffer more from discrimination and have the heaviest burden to bear. Thirty-seven percent of black women are the primary source of income for their families, whereas the percentage is only 12% amongst white women. Average monthly income for black women is just one third that of white women heads of household. Compared with her white counterpart with similar education and experience, the black woman can expect to lose more children from illness, to die younger, and to earn less.(6)

B. GUARANTEES AGAINST RACIAL DISCRIMINATION IN BRAZILIAN LEGISLATION

Constitution of 1988

6. After the abolition of slavery, it was not until the Alfonso Arinos Act of 1951 that it was formally recognized that racial discrimination was existed in Brazil, and the Constitution of 1988 designated discrimination as a crime.

7. The Constitution of 1988 was adopted following lengthy public debate in which broad sectors of society participated. In this regard, it is interesting to note how black representative, Carlos Alberto de Oliveira, justified the proposal that racism be designated a crime in the meeting of the Legislative Assembly in 1988:

"Nearly one hundred years after the abolition (of slavery), a political revolution ... initiated in 1988 has not yet come to an end. In fact new forms of racial discrimination now exist, overtly or covertly, affecting more than one half of the population of Brazil who are negroes and their descendants, and are deprived of the full rights of citizenship. As racism is tantamount to civil death, it must be designated a crime.(7)

8. Article 5 of the Federal Constitution of 1988 provides that all persons are equal before the law regardless of class and that all Brazilians and foreign nationals residing in the country are guaranteed the inviolable rights to life, liberty, equality, security, and property as set out below:

XLI - The law will punish all acts of discrimination against fundamental rights and liberties;

XLII - Racism is a crime for which bail is not available and which is punishable by imprisonment pursuant to law.

9. In its preamble, the Federal Constitution reaffirms its commitment to promote the development of a fraternal and pluralistic society that is free of prejudice..." In establishing the fundamental objectives of the Federative Republic of Brazil, article 3, section IV, stipulates that one of these objectives is to promote the well being of all people without prejudice based on origin, race, sex, color, age, or any other form of discrimination". Article 4 provides that "the Federative Republic of Brazil be governed by the following principles in its international relations: VIII - repudiation of terrorism and racism"

10. With a view to protecting black culture and the religious rites and customs brought from Africa, article 5, section VI of the Federal Constitution guarantees the inviolable nature of freedom of conscience and belief", "the free exercise of religious beliefs", and "the protection of places of worship and their religious services". "This provision is an improvement on earlier constitutions, that suppressed black culture on grounds that it was a threat to "public order" and to "good customs".

11. The concern over Afro-Brazilian culture is also evident in paragraphs 1 and 2 of article 212 of the Federal Constitution which states in section 1 that the State shall protect all expressions of popular, indigenous, and afro-brazilian culture as well as those of other groups that contributed to the formation of Brazilian civilization". Section 2 of this article states that "the law shall ensure the observance of commemorative dates of great significance to the different ethnic groups in Brazilian society".

12. With respect to protecting rescuing the ethnic values of the black race and their contribution to Brazilian culture, section 1, article 242, of the Constitution stipulates that "the teaching of Brazilian history shall take into account the contributions made by the different cultural and ethnic groups that form the Brazilian people." Article 68 of the Transitory Constitutional Provisions further states in reference to the "quilombos" that:

The definitive ownership of the descendants ("remanescentes") of the quilombos to the land they are occupying will be recognized and the State shall make every effort to issue them title to these lands.

Legislation against discrimination

13. On January 5, 1989, Law No. 7,716, known as the Act against racism or "Lei Cao" was passed. This law deals with crimes resulting from prejudice as to race or color. Despite its title, this law made little progress if any on the racial discrimination front since it was excessively ambiguous and superficial, requiring that for an act of racial discrimination to occur the individual who committed the act to state expressly that his conduct was motivated for reasons of racial discrimination. If the individual in question does not do this, it becomes his word against that of the person filing the complaint.(8) That is the moment at which the suffering of the victim of discrimination begins and which often turns him to radical views or racism.

14. Federal law 8,081/90, defines acts of discrimination or prejudice on account of race, color, religion, ethnic group, or nationality of origin by the communications media or publications of any kind and prescribes penalties for these crimes.

15. The above-mentioned law 7,716 has proved difficult to enforce since it establishes mechanisms to facilitate proof that a crime has been committed. Moreover, by making it necessary to prove that discrimination was intended leads to situations in which the aggressor and the aggrieved must confront one another and the offense must be proved objectively.

16. The Commission notes that a new law issued during the present administration sets a sentence of three years of imprisonment for any person who commits a crime of racism by means of injury or discrimination based on race, ethnicity, color, religion or nationality. The chief innovation produced by this law is to make it a crime of racism to commit an offense or prejudice in either work or personal relations. The law also expands the scope of the earlier law on this subject which provides sanctions only in cases of racism through the communications media or restrictions of access to public places based on race.(9)

17. The creation of two new specialized police units in Sao Paulo and Rio de Janeiro is a significant step forward. The government of Sao Paulo also set up a specialized police unit to handle racial crimes(10), which began functioning in 1993. In September 1994, a specialized police unit in charge of dealing with crimes of this kind(11) was also formed in Rio de Janeiro. On September 1, 1995, 53 complaints of racism were reported in Sao Paulo, which according to sources that have done research on the issue(12) is a relatively low number and would be explained by general ignorance of the conditions surrounding crimes of this kind since it is often confused with injury, calumny, and defamation. It is also explained by a decline in the efficiency of the police and justice system and the fact that the daily occurrence of racial discrimination and prejudice leads to a feeling of resignation and a belief that any efforts to correct this situation will ultimately fail.

Measures Set Out in the National Human Rights Plan

18. The National Human Rights Plan (PNDH) provides for a broad range of short-, medium-, and long-term measures to deal with the issue of racism with the underlying purpose of advancing the cause of the black population. In the short run, the proposals contained in the act are designed to promote affirmative action in the public and private spheres, including baseline studies, incentives, and steps to mold public opinion and attitudes. In this regard, it stresses the importance of the efforts of the Working Group for the Elimination of Discrimination in the Work Place and Employment (GTEDEO) set up in the Ministry of Labor pursuant to decree issued on March 20, 1996, and the tripartite committee of representatives of employer and employee associations and the government.(13)

19. One of the interesting short-term measures are incentives to encourage the presence of various ethnic groups in institutional advertising commissioned by government agencies and companies. This is intended to prevent particular groups from being characterized by stereotypes either intentionally or inadvertently as in the case of official press releases put out by the state of Sao Paulo and government companies, in which the country's various ethnic groups are not portrayed representatively or in an egalitarian manner.

20. In the medium term, the PNDH proposes to repeal all legislation or regulations of any other kind in which discrimination is implicit or explicit, to develop affirmative action to give blacks at the university level access to the professions and high technology development, the reassessment of the past, document recovery, and general teaching activities through the educational system. This response addresses a move to reexamine the past that has been gaining strength in recent years, particularly since 1995, to describe the historical significance of the popular struggle for freedom by blacks in Brazil, particularly the history of the "quilombos", the independent organizations of blacks that sprang up during the rebellion against slavery and oppression in the last century and through the inclusion of their leaders among historical figures who are honored and officially recognized for their contributions.

21. The Commission notes that one of the positive steps taken by the Brazilian government are its efforts to return to the black communities of the quilombos the lands on which they live or lived. These actions are designed to provide security to the descendants of the slaves who formed the quilombos.

22. The inter-ministerial working group for the advancement of the black population (GTI), created by Presidential Decree of November 20, 1995, was entrusted with the work of formulating public policy to advance and foster the rights of Afro-Brazilians. The Government points to the following as the best examples of the group's first year of work: creation of the national program to combat sickle-cell anemia, a genetic illness that affects mainly people of the Negro race; inclusion of the color question in death and live birth certificates; inclusion of the color/race question in the school census and in all educational statistical surveys; advancement of the studies and the proposals for compliance with the provisions of article 68 of the temporary provisions of the constitution for conferring titles to the occupants of the remaining lands of the Quilombos, as was done with the titles issued to the communities of Bacoval and Agua Fria (Para); programming proposal for educational TV designed to revise the history of Brazil from the standpoint of the African contribution to the social development of Brazil; reassessment of textbooks distributed to grade school children throughout the country now that books containing prejudices or formal errors or other discrimination or racial, color or gender stereotypes have been excluded; work with the Ministry of Education to prepare the National Curriculum Parameters.(14)

23. Another measure which is proposed in the PNDH and which the Commission is pleased to note has to do with the classification of the Brazilian population by the official agency for statistics and census (IBGE), an institution that classifies the Brazilians of African descent into pardos, mulatos, and negroes, without scientific or objective basis. According to information obtained by the Commission, the purpose of this classification is not to ensure that policies to counter the injustices of the past are effectively applied but as a means of legitimizing official prejudice and placing an implicit scale of value on segments of the population, wholly at variance with the principle of equality established in the Brazilian constitution and its international commitments. The PNDH specifically recommends that the IBGE be compelled to adopt guidelines that would put an end to this form of discrimination that purports to be a statistical measurement.(15)

24. The Commission also considers the PNDH's objective of encouraging the Ministries of Public Order of the states to offer recycling courses and seminars on racial discrimination as important and urgently needed. Such discrimination on the part of police officials also stems from the fact that the colored population because the vast majority of them live in conditions of poverty is more likely to be victims of crime. Other indicators show, however, that even if income and socioeconomic conditions are taken into account Brazilians of African descent are more likely to be suspects, investigated, tried, and convicted than other ethnic groups. A census of the penitentiary services taken by the National Council for Criminal and Correctional Services Policy of the Ministry of Justice for the period from January 1992 to April 1993 found that over 66% of inmates were negro, with 95% of them indigent and unable to pay for the services of a lawyer. In this same vein, and reflecting factors of poverty, a Rio de Janeiro study shows that in homicides of minors 54% of the murder victims were negroes and 33.9% white, with the rest being in other categories.(16)

25. Some examples selected by the Commission reveal that outdated attitudes towards discrimination persist in some judicial and police circles. In Sao Paulo in August 1996, according to official investigations covered in the Brazilian press, nine youths were apprehended in their homes by the police without a warrant, were tortured into confessing responsibility for a robbery at a nightclub patronized mainly by whites, and were officially reported as guilty of the robbery. Witnesses at the scene who resisted pressure from the police to identify the young negroes as the perpetrators of the crime were incarcerated. The judicial authorities refused to accept the confessions on grounds that they had been extracted under torture. A new investigation by the police subsequently discovered the culprits, four white men with criminal records.(17)

26. On the other hand, it is difficult to convict a white man accused of racial discrimination. The courts tends to be condescending as shown in a notorious case that occurred in 1990, one of the very few that has ever come to trial. The plaintiff was a teacher, Ana Augusta de Silva, who because she was black was prevented from entering a state school by the principal Maria Thereza Ferraz Ramos Feris, who was accused of verbally insulting Ms de Silva. During the trial, evidence was produced to show that the principal had a record of denying colored students entry to her school, and steering them away to other schools. Despite the incriminating evidence that the principal had a history of insulting black people, the Court of Justice of Sao Paulo overturned the lower court decision against her.

27. The measures taken by the PNDH and the GTEDEO to create incentives to encourage equal opportunities for employment, wages, and promotions are a response to renewed interest by the government and to the demands of civil rights groups. The branches of the Brazilian black movement have been advocating measures of this kind since the about early 1990s and they have managed to establish hopeful dialogue and analysis of measures to redress past acts of discrimination, particularly access to university. Healthy discussion has also been stimulated within human rights groups, that are reexamining to what degree certain guidelines relating to human rights violations that persist in some sectors are racially motivated.(18)

C. RECOMMENDATIONS

28. In response to the situation described, the Commission recommends in particular that the objectives and activities proposed in the National Human Rights Plan be satisfied with respect to appreciating the value of the black population, and more specifically:

a. The activities by states to promote affirmative action for blacks in the area of economic opportunities, employment, education, and the right to stand for political office.

b. Measures to educate judicial and police officials to prevent actions that could be interpreted as bias and racial discrimination in investigations, the trial process, or sentencing.

c. The adoption of measures to inform and educate the public about the positive effects that have come from the presence and actions of different groups of Brazilian society that have played a leading role in the country's history.

d. That measures be taken to eradicate the use in schools and educational establishments of teaching materials that contain derogatory references to blacks or concepts that reflect stereotypes of the black race, and that these books be replaced with others that emphasize the contributions that blacks have made to the country in history and the importance, significance, and value of the race and their culture.

Notes______________________

1. On September 4, 1850, the slavery was abolished under the Eusebio de Quiroz Act although slaves continued to be brought into the country clandestinely. It was not until 1871 that slavery began to be gradually abolished with "a liberdade de vientres". Eventually, the institution of slavery was totally abolished with the enactment of Aurea Act of 1888, when there was still approximately 700,000 slaves in the country. T.B. CAVALCANTI, Las Constituciones de los Estados Unidos del Brazil, Instituto de Estudios Politicos, Madrid, p.XXXII (1958).

2. The IACHR uses the term "racial" not in the sense of adherent to the theories that claim that different races exist within the human species but in accordance with the nomenclature of Article 1 of American Convention on Human Rights.

3. UNITED NATIONS, Economic and Social Council, Commission on Human Rights, Report by Mr. Maurice Glele-Ahanhanzo, Special Report on contemporary forms of racism, racial discrimination, xenophobia, and related intolerance, on his mission to Brazil from June 6 to 17, 1995, submitted pursuant to Commission on Human Rights Resolutions 1933/20 and 1995/12. Doc.E/CN.4/1996/72/Add.1, January 23, 1995, p.12.

4. UNITED NATIONS, Economic and Social Council, Commission on Human Rights, Report by Mr. Maurice Glele-Ahanhanzo, Special Rapporteur on contemporary forms of racism, racial discrimination....Supra p. 14.

5. UNITED NATIONS, Economic and Social Council, Commission on Human Rights, Report by Mr. Maurice Glele-Ahanhanzo, Special Rapporteur on contemporary forms of racism, racial discrimination....Supra, note.... p. 13.

6. CAIPORA WOMEN'S GROUP, Women in Brazil, page 11 (1993).

7. JORGE DA SILVA, Direitos Civis e Relacoes Raciais no Brazil, Rio de Janeiro, Ed. Luam, pag. 134, 1994.

8. JORGE DA SILVA, Direitos Civis e Relacoes Raciais no Brazil, Rio de Janeiro, Ed. Luam, pag. 136, 1994.

9. Law 9455 of April 7, 1997, which describes the crime of torture, contains a specific reference to the racial question in Article 1, which reads, Aconstraing a person by use of violence or serious threat, thereby causing him physical or mental suffering.... on the ground of racial or religious prejudice, constitutes a crime of torture@.

10. MINISTRY OF FOREIGN RELATIONS, Relatorio Inicial Brasileiro..., Supra, p.90 (1994).

11. Report by the Ministerio Publico (Office of the Attorney General) of the state of Sao Paulo, Relatorio de Pesquisa Aplicada. Homicidio de Criancas e Adolescentes, Sao Paulo, June 1995, pp 20-1.

12. Datafolha. "Racismo Cordial", Folha de Sao Paulo, 1995, p. 25.

13. The chief actions of the GTEDEO during its first year of activities are as follows: Tripartite encounter on the topic, Implementing Diversity Oriented Policies (Sao Paulo, October 1996); formation of the subgroup responsible for introducing to other public sector bodies and agencies the Ministry of Labor's pilot program on combatting discrimination; support to the Ministry of Labor for development of the program to implement ILO Convention 111 on discrimination in employment and occupations; development of projects on enhancment of citizenship and trade skill training; support for public information on ILO Convention 111 by means of lectures to trade organizations, city government gatherings, nongovernmental organizations, federal government and state governments; and the printing of the tenth regular report of the United Nations Committee for the Elimination of Racial Discrimination (CERD) on the joint inititative of the ministries of foreign relations and justice.

14. The Ministry of Justice is preparing a project entitled, Guide to Sources on the History of the Negro in Present Society, through the National Archives and the National Secretariat of Human Rights. In addition, the Ministry of Justice is working with the Studies Center on Labor Relations and Inequalities (CEERT), with the support of the European Union, on a project to promote an extensive debate--especially for legal specialists--on the possibilities and limits of laws in dealing with racial discrimination and guaranteeing equality of opportunities and treatment.

15. Different gradients of color have resulted from the intermarriage of the white, black, and indigenous races. As a result, most Brazilians are identified as "pardos", excluding the term officially used to refer to mixed racial types: "mulato" (of mixed negro and white descent); "mameluco" or "caboclo" (of mixed Indian and white descent); and "cafuso" (of mixed Indian and negro descent).

The 1990 census taken by the IBGE analyzed the descriptions of themselves given by the individuals interviewed and identified more than 100 gradients of skin color used by the interviewees to distance themselves as much as possible from the negro.

16. Da Silva, Jorge "Direitos Civis e Relacoes Raciais no Brazil", Rio de Janeiro, Ed. Luam, 1994; pag. 83.

17. VEJA, "Pretos e pobres. Como a policia torturou e estragou a vida de nove jovens inocentes." December 18, 1996.

18. Interviews that the Commission conducted with various human rights groups, particularly the Commission for Justice and Peace of the Archdiocese of El Salvador, Bahia, December 1995.