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ABSTRACT
In the spirit of the multiculturalism enshrined in the 2008 constitution, a number of legal instruments to fight discrimination were adopted in Ecuador and have been at the disposal of Ecuadorian socio-political actors, organizations, and state agencies. This article zeroes in on two of these legal instruments: 1) the 2009 insertion of the classification and definition of ‘hate crimes’ and ‘discrimination’ in the Código Integral Penal, and 2) the 2013 Ley Orgánica de Comunicación (Communications Law), which was an administrative law especially directed to those who publish written and visual texts in the media. Above and beyond illustrating how anti-discrimination legal instruments are actually applied in Ecuador to remedy anti-black racism in the field of everyday life, the two legal cases are approached within the multiplicity of fields of meaning they have relevance within. Both cases reveal contemporary race relations in a historically racist society in which the state has openly been instrumental for the reproduction of racist stereotypes that contribute to the making of Afro-Ecuadorians as second-class citizens. They uncover how much involved and why the relatively new, mostly urban-based, Afro-Ecuadorian middle-class has been in fighting anti-black racism. The article also points to the many limitations of contemporary legal instruments to end discrimination.
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No potential conflict of interest was reported by the authors.
Correction Statement
This article has been republished with minor changes. These changes do not impact the academic content of the article.
Notes
1. SUPERCOM is a ‘multicultural’ state agency that has for mission: ‘[t]o guarantee access for the Ecuadorian people to exercise their rights to receive truthful, objective, timely, plural, contextualized information, without prior censorship; so that they can engage in a free, intercultural, inclusive, diverse and participatory communication in all areas. It achieves this mission through surveillance, audit, intervention and control of compliance with the regulations, to secure a basis for “Good Living”’ (see http://www.supercom.gob.ec/es/institucion/mision-vision-valores). SUPERCOM has ceased to exist a few months after the end of Correa’s presidency.
2. During the processing of the case the military promoted Encalada to Captain, which reveals the little respect they had for this legal process.
3. This assumption is shared by various scholars of nationalism working at that time, particularly by Benedict Anderson (Citation1983) in his work on nations as ‘imagined communities.’ For a critique of Anderson’s silence about nations’ ethnoracial diversity and diasporas, see Smith (Citation2010).
4. When developing this argument, we only aim to emphasize the ‘ultimate Otherness’ of Afro-Ecuadorians. We do not lament their exclusion of official mestizaje or militate for their inclusion, we only take note of their relative outsiderness.
5. See http://www.wipo.int/edocs/lexdocs/laws/es/ec/ec016es.pdf (accessed 12 July 2018).
6. In this article, we refer to ‘multiculturalism’ exclusively as a modus operandi of the state, which comes along with specific legislations (the new Latin American constitutionalism), state narratives of what is ‘national,’ and a particular bureaucratic way of functioning: nothing more, nothing less. This means that so called ‘multicultural’ state institutions or organs can function according to a multiculturalist ideology even if the personnel of such organs are whites or white-mestizos.
7. https://www.oas.org/juridico/pdfs/mesicic4_ecu_const.pdf (accessed 27 July 2018).
8. https://www.presidencia.gob.ec/wp-content/uploads/downloads/2013/08/LeyDeCom unicacion-espaniol.pdf (accessed 17 July 2018).
9. The Ley Reformatoria al Código de Procedimiento Penal y al Código Penal was published in Ecuador’s Registro Oficial on 24 March 2009. The typification of hate crimes in the 2009 reforms of the penal code were the instruments used in the case of Michael Arce. Since then, a new penal code was adopted on 10 February 2014: it now typifies ‘discrimination’ and ‘racial hate’ (odio racial); see https://www.justicia.gob.ec/wp-content/uploads/2014/05/código_ orgánico_integral_penal_-_coip_ed._sdn-mjdhc.pdf (accesseed 27 July 2018).
10. Despite the multicultural turn, white-mestizo elites continue to control most ‘fundamental’ sectors of Ecuadorian society. Expressions of common-sensical anti-black racism can be found on all sides of the political divide, as much among white-mestizo correistas who have been very much at work to install the contemporary multicultural Ecuadorian state institutions, as among white-mestizo anti-correistas. Our argument in this piece has never been to say that Correa and his supporters are not anti-black racists, nor that the opposition to Correa are anti-black racists.
11. Consejo de Regulacion y Desarrollo de la Informacion y Comunicacion (CORDICOM; http://www.cordicom.gob.ec), is a council created by the Comunication Law to operate in parallel to the SUPERCOM. The National Assembly dominated by the AP party adopted that law, which gives a number of tools for direct multiculturalist state interventions in the media.
12. With the expression ‘field or sphere of meaning’ in this article, we refer to the plane of reality elected by specific social actors as the primary – if not exclusive – meaning productive dimension of events, or ‘facts,’ and their more or less recent histories, as the actors represent these facts or events in identified narratives. We do not obligatorily link one such field with one specific ethnoracial group, even though many Afro-Ecuadorians, along with white-mestizos, have undoubtedly recognized a stereotype in Bonil’s representation of Tin Delgado.
13. The opposition to Correa’s administration and presidential style came from various sectors of society: leftist political parties (Pachakutik, MPD, etc.; many were ‘legally’ dissolved), social movements like the Confederación de Nacionalidades Indígenas del Ecuador or CONAIE and women’s organizations, and environmentalists.
14. See also http://www.humanrightsecuador.org/high-profile-cases/el-universo-case/index.html (accessed 5 September 2018).
16. Many thanks to Carlos de la Torre for making this interview possible.
17. See http://www.eluniverso.com/2014/08/05/caricatura/3323116/bonil (accessed 17 April 2017). Ecuadorian congressmen and congresswomen make about US$6,000.00 per month. With that salary, they must cover some of their expenses.
18. All translations from Spanish to English are the author’s.
19. http://www.eltelegrafo.com.ec/noticias/politica/2/el-universo-se-disculpa-con-agustin-delgado (accessed 17 April 2017).
20. http://www.eltelegrafo.com.ec/noticias/politica/2/el-universo-se-disculpa-con-agustin-delgado (accessed 17 April 2017).
21. This process has paralleled the emergence of an indigenous middle class that equally values higher education.
22. Pedro Xavier Valverde was the attorney representing El Universo, and Ramiro García Falconí and Lenin Hurtado represented Xavier (Bonil) Bonilla.
23. See Memorandum No. CORDICOM-SG-2014-0093-0.
24. Here, in engaging a comment left by a peer-reviewer of this article, we want to emphasize that in no way are we saying that Lenin Hurtado was ‘less black’ for not standing with most Afro-Ecuadorians.
25. See SUPERCOM Resolución Nó. 009-2015-DNJRD-INPS, p. 37.
26. At the time of the events, Miguel Carvajal was the minister of defense.
27. See Resolucion Defensorial No. 006- OPE-l> INAPROT-54,708-HJCA-2012 from the Dirección Nacional de Protección de Derechos Humanos y de la Naturaleza, Defensoria del Pueblo del Ecuador, Quito, 28 March 2012.
28. Juan Pablo Albán is an attorney in view, who also teaches at the Universidad San Francisco de Quito, Ecuador.
29. The Ombudsman’s report only served for the Prosecutor’s Office to begin its work. The Prosecution produced its own evidence-based report, based on the Ombudsman’s report but not using its testimonies.
30. See https://www.eluniverso.com/2007/07/11/0001/8/6EDDC844403E4DB49BBB294C7111 FE8A.html; and https://www.eluniverso.com/2007/07/05/0001/8/7AF22FA9CB0E4240855 FE22614D164F2.html.
Additional information
Notes on contributors
Jean Muteba Rahier
Jean Muteba Rahier received his PhD in sociology from the Université de Paris X, at Nanterre, France. He is Professor of Anthropology and African & African Diaspora Studies at Florida International University (FIU). He has authored La Décima: Poesía Oral Negra del Ecuador (Quito, Ecuador: Abya-Yala, 1987); Kings for Three Days: The Play of Race and Gender in an Afro-Ecuadorian Festival (The University of Illinois Press, 2013) and Blackness in the Andes: Ethnographic Vignettes of Cultural Politics in the Time of Multiculturalism (Palgrave-Macmillan 2014). He has edited or co-edited several other books and authored numerous articles. He currently serves as Director of the Observatory of Justice for Afrodescendants in Latin America (OJALA), housed in the Kimberly Greene Latin American and Caribbean Center, at FIU (http://ojala.fiu.edu).
Jhon Antón Sánchez
Jhon Antón Sánchez received his PhD in Social Sciences from FLACSO, Ecuador in 2009. He is currently Associate Professor at the Center Gobierno y Administración Pública at the Instituto de Altos Estudios Nacionales, where he teaches Fundamental Principles of Public Service, and Theory of the State and Public Policy. He has authored many books and articles on Afro-Ecuador. He is a member of the Observatory of Justice for Afrodescendants in Latin America (OJALA). He is a Partner of the Instituto Afrodescendiente para el Estudio, la Investigación y el Desarrollo (Costa Rica), of the Fundación Ambiental y Cultural Las Mojarras (Fundamojarras, Condoto-Chocó, Colombia), of the Consejo Comunitario de la Cuenca del Condoto e Iró (Chocó), and of the Fundación Afroecuatoriana Azúcar, Ecuador.