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Here we explain why the senators for the Communes Party, Pablo Catatumbo and Carlos Antonio Lozada, are armored, for now, despite the accusations made by the JEP for crimes against humanity.
The most important news that the Special Jurisdiction for Peace (JEP) has issued in its three years of operation has been, so far, the brief of facts and conduct against eight former members of the FARC Secretariat, who are accused of having committed the war crime of hostage-taking and crimes against humanity such as serious deprivation of liberty, torture and forced disappearance. Although there is still no firm ruling that defines the judicial course of the former commanders, the truth is that victims and politicians asked that Pablo Catatumbo and Julián Gallo (Carlos Antonio Lozada), two of the eight accused members of the Secretariat, resign their seats in the Senate.
Colombia2020 consulted several experts in transitional justice and sources within the JEP, who assured that, for now, both seats in the Senate and the position of Rodrigo Londoño (Timochenko) as president of the Communes Party, they are armored, as this is just the beginning of a judicial process. There is still a long way to go to determine what will be the sanctions or penalties that the former FARC commanders will have to pay for the crimes committed during the war.
That is, like any public official with ongoing investigations, they can continue in their positions as long as a conviction or sentence is not defined that says otherwise.
However, the case of the FARC ex-combatants with the JEP is different from what we know in ordinary justice, because in addition to being based on the Political Constitution, they are based on the Peace Agreement signed in Havana (Cuba) in 2016 Juan Carlos Henao, former negotiator of the Agreement and current rector of the Externado University, explains that “the essence of the agreement was that, precisely, the Farc will exchange weapons for politics for which reason, for now, this political exercise cannot be disabled in Congress or from the Party ”.
Sources within the JEP explained that in order to make that decision, at this time, the Peace Agreement would have to be changed and reforms in the Constitution would have to be made, a scenario with no possibilities, taking into account that this group of ex-FARC commanders has not relapsed. and it has complied with what was agreed in Havana. “To disqualify them politically at this time they would not only have to change the Political Constitution but also change Legislative Act 01 (which is the document that incorporated the Peace Agreement into the Constitution), the Statutory Law of the JEP, convince the Constitutional Court that he was wrong and, incidentally, tell the UN Security Council that they are not right in supporting the peace process, ”said former negotiator Henao.
It should be noted that one of the fundamental points of the Peace Agreement was that of Political Participation, which stipulates that the constitution of a political party must be guaranteed for ex-combatants (current Partido Comunes) and that, during two electoral periods (2018 – 2026) , the ex-guerrillas they are entitled to five seats in the Senate and five more in the House of Representatives. Under the promise that they would have political guarantees, they laid down their weapons.
(You may be interested in: ‘Middle managers and executors of the Farc will also be accused of kidnapping this year’: JEP)
“We cannot make any transformation because the seats were the product of the Final Agreement. Even if they have committed crimes against humanity, in Havana it was agreed within point two and three that they would have the opportunity to participate in politics. That would only change if they decide next term to put their seat to a vote. But from the JEP nothing can be done, “said an official of the jurisdiction, who asked not to publish his name.
However, it is important to clarify that the exFarc can lose their political benefits in Congress later. Yesid Reyes, a lawyer and another of the former negotiators of the Peace Agreement, assured that “theoretically there are possibilities that they will lose the seat at some point, but for now the process is in the middle, they are just in the accusation phase and it will be only when a sentence is issued that the issue could be discussed ”.
As in any judicial process, the sentences are the final determinations that define the future of the person under investigation. And this is not the exception. It will only be when the JEP issues a ruling on the former FARC secretariat that its political future can be modified.
“It is important to remember that the Final Peace Agreement foresees that as long as there is no sanction, the FARC appearing parties can participate in politics and occupy popularly elected positions,” clarified another JEP source.
But here we must make another clarification. Unlike the processes in the Office of the Prosecutor, in the JEP those who declare themselves responsible for committing serious crimes against humanity, such as kidnapping in this case, and provide full truth, will not necessarily receive prison sentences. For example, yes Carlos Antonio Lozada, current senator of the Republic, recognizes from the beginning his responsibility in cases of kidnapping and other crimes for which the JEP accused him, and undertakes to tell the (proven) truth to the victims and the country, he may receive a sanction own, which does not mean impunity.
At this point we have to stop and explain what the sanctions are by the Special Jurisdiction for Peace. There are three: the proper ones, the alternatives and the ordinary ones, and they will be applied to FARC ex-combatants, members of the Public Force and civilian third parties who are hosted by the JEP.
Own sanctions: Those who acknowledge their responsibility for the crimes that the JEP “imputed” to them, make contributions to the truth to the victims of the armed conflict and commit to repairing them, will receive other “punishments” other than jail but which are also exclusive of freedom. These can be from work in the field, with communities, construction of schools to conferences of peace chairs and any form of reparation established by the victims. Furthermore, these sanctions will have to be met in the territories where they request it.
The time that this sanction will take will be between 5 and 8 years. There will be cases of 2 to 5 years for those who have not had a decisive participation in the events.
(See: According to the JEP, these are the responsibilities of each former FARC chief for kidnapping)
People who apply their own sanctions will always be watched. For this, the Peace Agreement created a monitoring and verification mechanism, which will be in charge of the United Nations. In the case of third parties and the Public Force, the role will be assumed by the Government.
Alternative sanctions: Those who refuse to accept responsibility for the crimes investigated by the JEP, but repent before reaching the adversarial trial stage and decide to acknowledge their crimes and provide truth, will have an alternative sanction of 5 to 8 years. This will be in jail.
The ordinary sanctions: Those who do not acknowledge their responsibility for the crimes for which they are accused will be referred to the Investigation and Indictment Unit (UIA), which is like the Prosecutor’s Office of the JEP. Then adversarial trial hearings will be held, in which they must provide evidence to prove their innocence. If the JEP finds them guilty, they will receive sentences of between 15 and 20 years, which must be paid in prison.
So the loss of the seat of the now congressmen, Pablo Catatumbo and Carlos Antonio LozadaIt will depend on the type of sanction they receive. Article 31 of the Statutory Law of the JEP states that alternative and ordinary sanctions, which include prison sentences, are incompatible with the performance of popularly elected positions.
In the case of their own sanctions, the JEP magistrates continue to evaluate how they will make mobility limitations compatible with the work of ex-guerrillas in Congress, if they do their part. In fact, an alternative came out in late August when the District and the National Government launched the Development Plans with a Territorial Approach (PDET) in Bogotá and Soacha. Through the counselor Emilio Archila, the Government has insisted that the ex-combatants should pay their penalties in the places where there was more violence and the PDETs should be carried out. It could be in the capital, but so far the JEP has not ruled on the matter.
