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Indigenous Justice in the Ecuadorian Constitution

Indigenous legal traditions are now a recognized element of the Ecuadorian justice system under the new constitution, adopted in 2008. Article 171 of the constitution states that:

Authorities of indigenous communities, peoples, and nationalities will have jurisdiction, based on their ancestral traditions and their own laws, within their territories, with guarantees for the participation of women in decisions. The authorities will apply their own norms and procedures for the resolution of internal conflicts, while assuring that these are not in conflict with the Constitution or the human rights recognized in international agreements.

The state will guarantee that the decisions of the indigenous jurisdiction will be respected by public institutions and authorities. Said decisions will be subject to constitutional controls. The law will establish the mechanisms for coordination and cooperation between the indigenous jurisdiction and the ordinary jurisdiction.

Discussion of  justice systems during an international exchange of indigenous peoples

Indigenous Legal Systems

Indigenous cultures have their own systems for the resolution of conflicts and disputes. The imposition of western legal systems has devalued and ignored these traditional systems, but currently they are being rediscovered and acknowledged both in the Americas and globally. The right to apply their own judicial practices is one of the rights that indigenous peoples and nationalities are recovering in a number of Latin American countries, including Ecuador.

For the past decade, Las Lianas has supported indigenous groups documenting their traditional legal practices and advocating for their recognition in Ecuador as legitimate systems for conflict resolution and an integral part of a pluralistic justice system. We have participated in national and international events to exchange information and ideas about indigenous justice systems and their application in a “plurinational” state, and published articles and given talks on the subject.

In 2002, we collaborated with the Commission for Indigenous Affairs of National Congress, and with ECUARUNARI, the confederation of the Kichwa people of Ecuador, to develop a draft law recognizing indigenous justice systems in accordance with rights recognized in the 1998 Constitution. Although this proposal did not ultimately become law, it contributed to dialogue on the subject and to the diffusion of the idea that the application of traditional forms of justice is a collective right of indigenous peoples.

Between 2007 and 2008, we returned to this work, again in collaboration with ECUARUNARI, to document and disseminate the legal structures, systems, and practices of the Kichwa peoples of Ecuador. This project aimed to counteract popular misunderstandings and prejudices about indigenous legal systems, demonstrate their value and function within indigenous cultures, and broaden the understanding of the application of indigenous justice as a right recognized under national and international law. One product of this work was the publication, by ECUARUNARI in 2008, of the book, Estructura Legal y Sistemas Jurídicos de los Pueblos de la Nacionalidad Kichwa del Ecuador (Legal structure and judicial systems of the Peoples of Kichwa Nationality of Ecuador).

This work has contributed to internal dialogue within the indigenous movement to define positions and proposals regarding indigenous rights and the concept of a plurinational state. It also informed debate in Ecuador’s constitutional assembly, which ultimately incorporated, into the constitution adopted in 2008, indigenous authorities’ jurisdiction in the resolution of their communities' internal conflicts (see sidebar).

Currently, Las Lianas supports indigenous peoples' efforts to put this constitutional right into practice by recovering and applying legal systems appropriate to their cultures.