—Francisco Osorio, Department of Anthropology, Universidad de Chile
This is a time of many firsts. The first female Vice President of the United States of America (also of black and Indian descent). The first vaccine for a global pandemic in less than a year. The first constitution of Chile to be written by elected representatives, the first time in the world that such an elected body will have an equal number of men and women, and the first time that Chilean indigenous people will have reserved seats in the assembly. The reasons for the new constitution can be found in different media, so I want to focus on the participation of indigenous people in the writing of the new constitution.
Initially, the indigenous population were not considered for inclusion in the assembly. The 2019 agreement for a referendum between the government and most of the political parties represented in the Chilean National Congress asked the people of Chile to consider two questions. The first asked if the current constitution needed to be changed. The second asked about what the mechanism which should be used to form the assembly with the options of (in case people voted for a change): an assembly made up of half congress and half citizens or an assembly made up of only elected citizens. The result was a yes for a new constitution made up only of elected citizens. Also included in the agreement was the number of people making up the new body: 155 persons. This is the same as the number of the lower house of Congress, using the same districts. In practical terms, it was simple: “elect a new lower house to write the new constitution”.
However, in 2020 the opposition proposed a change to the agreement: to add more members to the assembly to include members of the indigenous communities, peoples of Afro-American descendants, and people with disabilities. The reason was to give voice to those unheard. For the parties in the coalition government, it was a way to increase the influence of the opposition in the writing of the new constitution. This is also related to another aspect of the agreement: only those articles in which two thirds of the members of the assembly agree, will be part of the constitution. Therefore, numbers matter.
The debate inside the Chilean Congress was intense but at the end of 2020 the proposal became law. The new assembly will have 155 persons, with 17 reserved for indigenous people. The proposal for a representative of the Afro-American community was denied. The current law also says that 5% of all candidates must be persons with a disability.
Some questions
Who are the indigenous? Imagine yourself going to the polling station and saying “Hello, I would like to vote, and I’m indigenous”. The polling officer will say “OK, sure. What indigenous culture are you?” There are two elements here: personal identity (you consider yourself indigenous) and society (your culture exists). In the case of identity, the Chilean Congress debated long and decided that it was not possible for someone to self-identify as being indigenous. And in practical terms, because it was not known beforehand how many people could potentially declare themselves indigenous, the ballots for non-indigenous and indigenous needed to be printed. This situation was resolved by the legal system in the following way: going back to our fictitious case, when someone shows up at the polling station and identifies as being indigenous, the polling station would check the individual’s national identification number in the Chilean Indigenous Database and if that person is on that database, they would be indigenous. If you wanted to be recognized as indigenous, there was a protocol that allowed you to be identified as such and to be added to the database. Nothing complicated, a form needed to be completed (this process is now closed). In principle, it is assumed that indigenous voters would vote for indigenous candidates. But if they do not want to, they can vote for a non-indigenous candidate. It is one or the other. In other words, either you cast your vote for the indigenous candidate or the non-indigenous in your district, but you cannot vote twice.
What culture? To be indigenous is to belong to a culture. You cannot be “just indigenous”. According to the Chilean law, there are only 10 indigenous cultures. That is a contested definition. One of those cultures, called Chango, was only officially recognized in October 2020, entering just in time for the referendum. With less than 4,000 people, they were struggling to fulfill the requirements but just one day before closing date, they managed to present three candidates (for the one seat reserved for that culture). They were not the only one with problems. Three other ethnic groups had candidates but without sufficient people signing support forms to back them up. Again, just when the process was about to close, they also managed to enter the referendum.
Equal gender representation? It was hard for the Chango people because they required a male and a female candidate. They presented three candidates but, on the official list for that culture, there are six names. This is due to something new: gender equality. For example, if you are Chango and vote in the Coquimbo district, Mr. Fernando Tirado is your candidate. But alongside his name is Mrs. Marta Rodriguez (both are real examples). It means the following: “when the referendum is over the indigenous representatives will have equal number of men and women to represent them in the national assembly. It could be that Mr. Tirado would have to step down in favour of Mrs. Rodriguez to preserve the place for the Chango people and the equal gender agreement”. Therefore, when the vote is cast, you already know who could replace your candidate if required.
How many people? Out of 17 million people that live in Chile, 14.9 million can vote. Out of this number, 1.2 million are registered as indigenous. Of those, 1 million are Mapuche with 7 seats. The Aimara are the second largest with 75 thousand people, with 2 seats. The remaining 8 cultures have one seat each, completing 17 seats in total for the indigenous population.
The Electoral Office was responsible for creating the instructions and protocols to be followed on Election day. Because of Covid, the election was held on May 15th and 16th, to avoid waiting in long queues. This was potentially very confusing and, to add more complexity, on the same day people also vote for the representatives of the regional level (Governor), district level (Mayor), and local level (Councillor). So, there are 4 ballots. Adding on top of that the pandemic, it is fair to say that this election was one of the most challenging ever held in Chile.
The importance of the election for Chile
This is a monumental process, yet it could all fail spectacularly. The problem is managing expectations. It seems that for a growing number of people, indigenous or not, the constitutional assembly’s role is different than the purpose for which it was created. Some indigenous people are expecting land reforms, others better economic conditions, access to services, recognition of ancestral rights, and some expect nothing at all because they do not believe in a single nation but rather independence. Others, of course, align themselves with regular political demands that make them indistinguishable from non-indigenous representatives.
Before Election Day, indigenous candidates appeared in political campaigns on national television. Because of the legislation, the time slot is divided among political parties, independent candidates and indigenous. The Aymara people, for example, had 3 seconds per slot (it was aired twice a day). In that time, the indigenous candidates could only state their names alongside graphics with the code number on the ballot so that people could locate them on the day. There was no time for a political message, a meaningful proposal, or important content. Some indigenous candidates grouped themselves to have more time, but the effect was the same. Because of the pandemic, indigenous candidates used social media extensively. There are also efforts “on the ground” trying to talk to people on the streets and home visits. There are indigenous candidates closer to the current government while others are in opposition.
The whole purpose of the upcoming elected assembly is to write the political rules for the future. Current demands cannot be dealt with inside the assembly, yet the demands are all that Chile can process on political communication now. There is hope, nonetheless. The need for social life to be different. But when expectations are not fulfilled, the feeling of frustration lingers. Writing the new constitution was the political answer the country came up with to solve the problem of the 2019 social unrest. Let us hope that indigenous proposals find their way in the new Chile. But there is one final step (yet another). After two years of work, the assembly will present their proposal to the citizens. In the final referendum (this time mandatory because the current one is voluntary) there will be only one question: do you accept it? If not, one can only imagine what disappointment could guide us. Either way, the relationship between indigenous peoples and the rest of society is about to change profoundly.
Postscript. The election process was a success, nonetheless
On election day against all odds things worked. There were some problems, of course. Some indigenous people show up to the polling station saying “I’m from the Chango culture” but were instead given the Mapuche ballot. You can imagine the dialogue. Some people in the polling stations had no idea how to handle indigenous ballots. More training was needed. Some indigenous people wanted to vote for regular candidates, but the officers gave them the indigenous ballot “because you are indigenous!”.
The 17 candidates were nonetheless elected. Turnout was low: only 23% of the indigenous people participated. The country had a turnout of 43% in total, also extremely low. Other than a few problems, it was a transparent election process. Most of the results were available in 4 hours. The official results were available 20 hours later. What comes next will be remarkably interesting.
Suggested citation: Francisco Osorio, Indigenous Peoples and the Chilean Constituent Assembly, Int’l J. Const. L. Blog, May 18, 2021, at: http://www.iconnectblog.com/2021/05/indigenous-peoples-and-the-chilean-constituent-assembly/
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