Constitutional Court of Ecuador analyzes indigenous jurisdiction and legitimacy of indigenous authority

RIO DE JANEIRO, BRAZIL – The Constitutional Court of Ecuador rejected as moot a claim for extraordinary action of protection filed against a resolution issued by the Corporation of Governments and Communities of the Otavalo Canton (CORDEGCO), which sought to convict a defendant of the crime of slander.

The case refers to a resolution issued by CORDEGCO, a body of the Kichwa Otavalo people, whereby it “convicted” a businessman for the crime of slander and ordered him to pay US$1.8 million plus undergo punishment consisting of “cold water bath, naked, nettle, whip and carrying sand for two kilometers, round trip, in the presence of the press and television and community work for two years.”

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Against this decision, the appellant filed an extraordinary action for protection. He states that he is not indigenous, did not commit any crime, and that CORDEGCO has no authority to impose criminal sanctions.

The Constitutional Court recalls that “the purpose of the extraordinary action for protection against decisions of the indigenous justice system is to control the constitutionality of decisions made by indigenous authorities in the exercise of jurisdictional functions when there are alleged violations of constitutional rights or decisions that discriminate against women.”

It then points out that, although the Constitution recognizes and guarantees indigenous peoples the possibility of creating, developing, applying, and practicing their law, they must have legitimacy.

In this regard, it specifies that “the jurisdictional function is in charge of the indigenous authorities designated by the community, people or nationality in accordance with their law and ancestral practices recognized by the members of the communities, peoples or nationalities.”

In this sense, it refers that, to determine the legitimacy of an authority exercising indigenous jurisdiction, “the direct relationship between a community, people or nationality, and the indigenous authority must be established.”

The specific case points out that, although CORDEGCO is an organization made up of indigenous members, it does not have authorities with jurisdictional functions that arise directly from specific indigenous nationalities, peoples, or communities. On the contrary, the Court considers that it is only a civil society association.

The Constitutional Court rejected the action as moot because it considered the resolutions issued by CORDEGCO as unenforceable, having no legal basis, since the association does not have the authority to exercise indigenous jurisdiction.