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Guatemala: Analysis

1 Access to Information: legal framework and requirements

The transparency of the public administration is guaranteed by articles 31 and 35 of the Constitution of the Republic and by the Law on Access to Public Information. The Office of the Human Rights Ombudsman (PDH) is the authority which regulates the law, and should receive annual reports from the public bodies on transparency and summarise them in a single report, making recommendations to improve levels of compliance. The National Institute of Forests (INAB) found it difficult to comply with articles 7, 10 and 48 of the law, while the National Council of Protected Areas (CONAP) did not comply with article 48.

Shown below is a table which analyses levels of State compliance as far as the required information on the indicators is concerned: green indicates compliance, yellow indicates partial compliance, and red indicates a lack of compliance:

Guatemala: Analysis

1) Article 7 and 10. On the part of the INAB website dealing with official public information, which in theory must have links leading to 29 types of information required by article 10 of the law, only 10 of these are evident as "links". Finally, the most recent Annual Statistical Bulletin and the Annual Work Report were only published for 2009, with the 2010 editions missing.The Human Rights Ombudsman´s Office, that monitors fulfilment of the law, measured rates of official information disclosure on the web pages of the INAB, and found that it fulfilled only 18.5% of what is required by law.

2) Article 48. According to the PDH, neither the INAB nor the CONAP has sent its reports for 2009 and 2010, although they have successfully sent their reports for 2011.

Given that 40% of the population of Guatemala is indigenous, an important aspect of the accessibility of information relates to the State's obligation to translate forest laws and policies into indigenous languages, thus complying with the Agreement on Identity and Rights of the Indigenous Peoples and the Languages Law. The majority of environmental/forest laws and policies are not translated.

It is worth mentioning that the National Forest Statistics System is a positive initiative which may develop into an important source of information and transparency on the Forest Sector.

2. System of land tenure: uses of forest resources, customary laws, maps and other information on tenure

In the Map of Forest Coverage for Guatemala 2006 (there is no map of forest coverage for the years between 2006-2010), the Valle de Guatemala University calculates that Guatemala has 3, 866,383 hectares (ha) of forest coverage, with 2,032,215 ha within the protected areas administered by the State, and 1,835,384 ha outside these areas. Although there are no maps detailing forest tenure, the United Nations Food and Agriculture Organisation estimated that forest ownership in 2004 was: 38% private, 34% public national, 23% public municipal-communal and 5% not determined. Forest tenure, like land tenure in Guatemala, is characterised by a high level of concentration and by the historical exclusion of the indigenous peoples. In 1996, when the civil war ended, the Peace Accords were signed, which included theAgreement on Identity and Rights of the Indigenous Peoples and the Agreement on Socioeconomic Aspects and the Agricultural Situation, which recognised the inequality in land distribution and the lack of legal certainty of land tenure and customary rights of indigenous peoples. These led to the creation of a series of instruments for dealing with these issues, notably: the Land Fund Law and the institution, the Land Fund, instituted as a mechanism to facilitate access to land under market conditions; the Law on the Land Information Register (RIC) and the RIC institution, which were created to establish, maintain and update the national land register. A further creation was the Agricultural Policy, which refers to the democratisation of land tenure, and the National Policy on Integrated Rural Development, one of the objectives of which is to reform and democratise the system for access, use and tenure of land, and the new 2011-2015 Agricultural-Cattle Policy, which seeks to stimulate the agricultural, forest and hydro-biological sectors, prioritising the promotion of the rural, indigenous and peasant economies.

The most recent Agricultural Census from 2003 showed a Gini coefficient of 0.84 for land distribution, demonstrating that the problem of tenure remained unsolved between 1996-2003. In addition, the figures from theNational Agricultural Survey 2005-2008 estimate that the number of agricultural producers below the subsistence level (infra-subsistence), primarily indigenous, is as high as 45.2%, and only use 3.2% of the agricultural land. The National Agricultural Survey "estimates that infra-subsistence, and subsistence farmers below poverty levels represent 90% of the total number of people who depend on work in agriculture, occupying only 21.7% of the rural land, whereas just 8% of the richest agricultural producers have 78.2% of the available agricultural land." This shows that the instruments created during the Peace Accords have not solved the problem of land concentration and consequently the historical problems of exclusion have not been solved either. A peasant and indigenous movement, the Alliance for Integrated Rural Development, presented to Congress a bill called "Law 40-84 on the National System of Integrated Rural Development" which would oblige the state to strengthen the processes of land redistribution. However, this law, which was presented in 2009, has still not been approved. Furthermore, the 2010 report on Progress in the Peace Accords reveals that customary laws are not given priority by the State when distributing the budget. The issue of land tenure and recognition of collective and individual customary laws is crucial for the forest sector in terms of mechanisms such as REDD+, to ensure fair benefits which help the poorest and most marginalised members of society - an important strategy for meeting the objectives of adaptation to climate change and mitigation of greenhouse gas emissions related to land use, which in Guatemala account for 41% of total emissions (not including deforestation caused by agricultural activities).

Guatemala: Analysis

Greenhouse gas emissions in GUATEMALA
Industry 3% Transport 9% Energy 12% Agriculture 32%
Change in Land Use 41% Waste 3%

Source: National Inventory of Greenhouse Gases, Guatemala, 2000

Total Emissions 27.5 giga-grams of CO2 equivalent. (NB: we will recreate and upload graph in English)

3. Legal, institutional and political framework for the forest sector

The Forest Law, approved in 1996, states that "reforestation and conservation of forests is of national urgency and social interest", and was followed by eight forest laws and regulations and by the creation of a number of institutions responsible for applying the law. The Guatemala forest sector is governed principally by two State institutions, CONAP and INAB. There is a Forest Policy, understood to be the set of principles, objectives and instruments which allow the goods and services obtained from the forest ecosystems to be maximised, and which takes a long-term view (20 years).

Forest legislation has certain shortcomings in the area of implementation: the Environmental Profile of Guatemala estimates that, in 2009, 95% of the country's forest products were used illegally, and of these76% correspond to firewood and 24% to timber. This demonstrates the institutions' lack of ability to control this phenomenon and the lack of an effective system of registration and issuing of permits and licences, and finally the lack of a sustainable forest culture. One problem with this analysis is that "illegal" is the term applied to all forest operations which do not have the appropriate permit, when it could be argued that there is a distinction between informal use of the forests by poor communities which depend on them (and who are not necessarily aware of the law) and the consciously illegal use by loggers who know about the law, but do not respect it. On the basis of this information, INAB has created an Inter-Institutional Action Plan to deal with the problem. The Plan is only valid for one year, and is designed to promote the responsible participation of all the actors involved and to have long-term effects on the actions of these actors. Finally, the Evaluation of Guatemala's Forest Policy indicates the deficiencies and strengths of the Forest Policy. The indicators show that it needs to be strengthened urgently in terms of the conservation of strategic forest ecosystems and in the promotion of natural forest management.

4. Participation in the decision-making spaces in the forest sector

The System of Development Councils, regulated by the Law on Development Councils, is the principal means for the population to participate in public management, which includes implementation of the Forest Policy. Every level has representation elected by vote from the public sector, civil society, indigenous peoples and private sector. In theory, the system is supposed to function in pyramid fashion, with the interests of citizens represented in the community councils [and then] taken to the municipal, departmental and regional councils, and finally the National Council. The System has a website, but only the National Council has information: this prevents an analysis of who participates in the other Councils, how representative they are and the efficiency of the Councils on forest issues.

In addition to this system of participation, there are the Municipal Forest Offices (driven by the INAB Boscom Project) which promote municipal forest administration and community participation. There are around 167 officesfor a total of 333 municipalities. Although de-concentration of the forest administration to the municipal level, as part of the recent trend in decentralisation, has slowed down in recent years, over the last decade these offices have given impetus to the participatory formulation of "Municipal Forest Policies", some of which have been implemented.

Access to decision-making relevant to the forest sector is also stipulated in the National Forest Programme's (PFN) National Forest Agenda (2003-2012), which establishes a series of specialised dialogue Forumsrelating to forest issues and roundtables, which are nine regional bodies for tracking the Agenda. Only two of the roundtables provide information on the PFN website about their work. In addition, the Forest Agenda intended to create a Forest Consultation Group, which would be a body for political and strategic guidance with institutional representation of the principal governmental organisations, stakeholders and networks related to the forest sector. Although this has been established, it took 10 years to do so, and there is no information that allows for greater analysis.

5. Financial systems: systems of tax redistribution, forest incentives and information on the amounts allocated and the beneficiaries

Forestry incentive programmes and INAB projects are the principal means of promoting reforestation and sustainable forest management in the country, which are regulated by the Forest Law, the Regulation on the Programme of Forestry Incentives (PINFOR) and the Law on Forestry Incentives for Small Landowners with a Forestry or Agro-Forestry Vocation (PINPEP) and financed by national expenditure through allocations equivalent to 1% of the state´s income budget.

Article 83 of the Forest Law obliges INAB to distribute annually up to 50% of the total amount of incentives for reforestation and forest maintenance projects and management of natural forests to small landowners who present projects to be carried out in areas smaller than fifteen hectares. On its website, INAB states that of the 6,486 projects funded by PINFOR since its creation, 3,659 of these are projects for sizes less than or equal to 15 hectares, which apparently complies with the law. But INAB does not specify, either in the Statistical Bulletin for 2009, or in the 2009 Annual Work Report, or on its website, the types of owners who benefited from the PINFOR projects which are included in this category. In other words, they do not distinguish between projects and land owners. It is possible that there are PINFOR projects of 15 ha or less located within larger properties, which therefore do not belong to small owners. There is also a great difference between an owner with 15 ha and one with less than 1 "manzana" (0.7 Ha), especially given that the Agricultural Census of 2003 determines that 45.2% of Guatemala's rural workers have less than 1 "manzana" of land. Consequently, it is not possible to carry out an analysis of whether PINFOR has supported the poorest members of society. Given this situation, the community forest sector successfully fought for the approval of a law onPINPEP, which ensures that the programme applies to small landowners who do not have a title deed for the property they occupy. In addition to this problem, the Forest Law stipulates that the State shall allocate 1% of its income budget to expenditure on forest incentives. However, for 2011 only Q100,213,322 was approved, when the figure should have been Q387,898,810 (i.e. 1% of the income budget of Q38,789,881,000).

Finally, it is also important to note that there is a variance between the annual amount approved in the General Budget of State Income and Expenditure and the actual income accrued and registered to INAB by the Ministry of Finance. For example, in 2008 the approved budget was Q85,548,679, compared to a registered income of Q69,877,792; in 2009 the approved budget was Q79,944,494 compared to a registered income of Q59,464,330; in 2010 the approved budget was Q62,525,419 compared to a registered income of Q59,262,669; and in 2011 the approved budget was Q90,700,000, compared to a registered income of Q 71,674,455. It is not clear why this discrepancy took place. Furthermore, INAB has estimated that it needs a minimum budget of Q130,000,000 a year to function properly.

6. Extra-sectoral activities and prioritisation of development

The General Secretariat for Planning states in its third report in 2010 on the Millennium Development Goals that the current political framework is made up of 43 policies of a sectoral and cross-sectoral nature, of which 23% correspond to policies whose principal purpose is to protect and manage the environment and natural resources, but that most lack a fixed budget for implementation. This lack of prioritisation can be demonstrated if we refer to World Bank advice to developing countries on public environmental spending as a percentage of the GDP: this figure is between 1.4% and 2.5%, whereas in Guatemalaonly 0.5% is spent. In addition, Guatemala has one of the lowest levels of public spending in Central America (14.5% of GDP in 2010, compared to an average of 20.8% between Costa Rica, El Salvador, Nicaragua and Panama).

The 2009 Guatemala Environmental Report says that the extra-sectoral activities with the greatest impact on the forest sector are: "promotion of livestock activity, growing of African palm and the extraction of hydrocarbons," and "the change in land use, consumption of wood, fires and forest plagues, in addition to illegal operations" are other factors which demonstrate the lack of prioritisation of sustainable development. However, there is no official, in-depth study of the causes of deforestation which names the most responsible actors. This is why the preparation proposal for REDD+ (R-PP) for Guatemala contains a request for money from the Forest Carbon Partnership Facility (FCPF) to carry out an "analysis of the dynamic of sources and focuses of deforestation". In addition, the forest licences issued under the mode of change of land use, which include commitments to reforestation or repopulation of forests but which are frequently not complied with, often result in legal cases. Despite their shortcomings, they are considered by Government as positive in public policy, leading to deforestation and degradation of forests. Finally, civil society has strongly criticised the focus of the current government on the non-sustainable use of the land.

7. Emerging issues in environmental services: developing programmes which value forests for their role in carbon sequestration, water regulation and the conservation of biodiversity

A number of initiatives related to water issues never resulted in a specific law. There is a Framework Bill for Climate Change which, if approved, will regulate some environmental services, such as carbon sequestration. The National Climate Change Committee arose as an effort by the State to seek consensus and approve a national policy, a strategy and a law on climate change. It has a website and counts on the participation of a number of government organisations, the private sector, the academic sector and the non-governmental sector. There is also the Indigenous Committee on Climate Change, made up of five indigenous organisations, and the Regional Climate Change Committees. These Committees were created to seek agreement and to approve the policy, the strategy and the national law on climate change at a regional level. But there is not much information on the discussions surrounding the Law itself and on whether the Committees proposals will be included in the law. It is not clear whether the participants in these national and regional forums represent the wide diversity of indigenous peoples and the country's rural sector, whose involvement in these spaces is crucial to ensure social approval for this Law, and to make people aware of the importance of the Climate Change issue.

Guatemala also participates in the FCPF process and is in the process of presenting formally its Readiness Preparation Proposal (R-PP), which has been worked on by the Inter-Institutional Coordination Group formed of the Ministry of Environment and Natural Resources (acting as the governing body), INAB, CONAP and MAGA. As part of this process, the decision was taken to use an existing forum called the Group on Forests, Biodiversity and Climate Change (GBByCC) to consult civil society on issues relating to the forest sector. The Working Committee of this group noted that the component of the R-PP which deals with the REDD+ consultation process was very limited, restricted to consulting the representatives of civil society and of the indigenous peoples forming the GBByCC, which do not represent the wide diversity of indigenous peoples or Guatemala's organised environmental civil society. There was also no mention of the already existing institutional processes in Guatemala with regard to the consultation process (the SISCODE). For this reason, the method of consultation was expanded to include the formal system of consultation, and the number of players to be consulted was also increased, to include more players from the indigenous sector and the rural sector. Furthermore, the R-PP document did not include the legal framework on transparency in its plans to make the work of the GBByCC more transparent, which is why it was included in the latest version. But a website for this process still needs to be created to disseminate information about progress. Without this transparent channel of information, and without broad consultation countrywide, suspicions may be generated about the REDD process. This has already been expressed in some press releases from the more organised national indigenous sectors, such as the indigenous organisation WAQIB´ KEJ, which states that "for us [REDD] means the privatisation of the forests and more specifically the oxygen generated, giving the developed countries the green light to continue polluting."


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