Commissioners: Felipe González, José de Jesús Orozco Henríquez, Dina Shelton

Petitioners: Asociación de Radios Comunitarias de Guatemala (ARCG), Asociación Mujb’ab’ Lyol (Encuentro de Expresiones), Asociación Sobrevivencia Cultural, Asociación de Desarrollo Integral Tzutuhil (ADITZU), Colectivo de Investigaciones Sociales y Laborales (COISOLA)

State: Guatemala

The Inter-American Commission on Human Rights (IACHR, Commission) held a session on March 15, 2013, on freedom of expression for indigenous peoples in Guatemala, though the focus was community radio. Petitioners argued that indigenous peoples’ ability to express themselves is restricted by government control of radio frequencies. In response, the state representatives argued that there are procedures in place for indigenous populations to legally access radio frequencies, and that illegal use must be stopped.

The petitioners spoke first on the importance of freedom of expression for indigenous peoples. The representative indicated that there are twenty-four languages spoken in Guatemala, twenty-two of which are Mayan. Although indigenous peoples make up sixty-five percent of the state’s population, the speakers asserted that the government maintains a discriminatory attitude toward indigenous peoples. In the petitioners’ view, restrictions on radio frequencies are part of the government’s effort toward monoculturalism and the state’s response to indigenous peoples’ efforts to gain legal recognition of radio frequencies has been to persecute, imprison, and take broadcasting equipment. Furthermore, the petitioners noted that the restrictions are particularly damaging to women and children and that radio access is only granted to dominant groups despite Article 16 of the Declaration of the Rights of Indigenous Peoples (Declaration), which grants indigenous peoples the right to establish their own media in their own language without discrimination.

Next the petitioners focused on specific state policies that restrict the use of radio frequencies. In particular, the petitioners focused on Decree 94-96, which allows for the sale of radio frequencies through auctions, thus creating an economic barrier for underprivileged communities, and the failure of the state to distinguish between real community stations and other stations that violate that communications laws. Petitioners defined community radio as those that utilize an indigenous language, are non-profit, and work for the people in the community. The petitioners asked the Commission to recommend that Guatemala cease prosecuting community radio stations and close the office that prosecutes community radio stations. They also requested that the Commission visit Guatemala and encouraged the state to harmonize its laws and practices with the Declaration.

An attorney representing Guatemala justified limiting the use of radio frequencies, arguing that community radio interferes with legal transmissions and therefore implicates all people’s right to access information. Though the state supports the freedom of expression enshrined in the Guatemalan Constitution, the representative articulated the government’s belief that regulation of the radio waves reduces conflicts of use. Finally, the attorney asserted that communities that conform to Decree 94-96 will not be prosecuted and that the Constitutional Court of Guatemala has found no preferential preference or exclusion based on identity.

The state then offered AM radio stations as an available alternative to FM radio. Although the state gave AM frequencies to eighteen Mayan communities in 2003, only two have taken advantage of the opportunity. According to the state, indigenous peoples can comply with telecommunications laws by either participating in auctions for frequencies or by using AM radio.

Commissioner Dina Shelton, the Rapporteur for Guatemala and for the Rights of Ingenious Peoples, discussed the pervasiveness of poverty among indigenous communities in Guatemala. Commissioner Shelton stressed that under Inter-American Law and International Labor Organization Convention No. 169 (to which Guatemala is a State Party), indigenous communities should not be treated the same as other communities, but rather should be provided special protections regarding mass communication in indigenous languages.

Catalina Botero, the Special Rapporteur on Expression, stressed the importance of understanding the difference between the community radio stations that compete illegally with national stations and the legitimate community radio. Although the Constitutional Court has urged legislatures to recognize community radio of indigenous people, Guatemala treats all unlicensed stations as the same. In contrast, Botero stated that the importance of a regulatory framework to govern community radio is a separate but equal manner and that the state should deal with all such issues administratively instead of criminally.

Commisioner José de Jesús Orozco Henríquez asked about special procedures that indigenous communities could follow to access radio. He questioned whether Mexico has put forth any affirmative-action policy to help indigenous communities preserve their cultures, and he suggested that such a process should exist if it does not. He also asked both the petitioner and asked the state if they knew how many community radio stations operate and the percentage that operate legally.

The petitioners responded to the state’s offer of AM frequencies. In their view, AM radio is too obsolete and expensive to be practical. They also believe the reason two out of eighteen stations donated by the government are operational is because the others do not work. In a brief follow-up, the state said the petitioners’ submission to the IACHR fails to accurately recognize the concept of community radio and that the proposals are not a solution.