ACCESS TO JUSTICE AND SOCIAL INCLUSION:
THE ROAD TOWARDS STRENGTHENING DEMOCRACY IN BOLIVIA

CHAPTER IV

RIGHTS OF INDIGENOUS PEOPLES AND PEASANT COMMUNITIES

A.         Introduction

216.     At the outset, the Commission wishes to clarify that the title of this section, "Indigenous Peoples and Peasant Communities," does not imply any assimilation between these two categories which, both domestically and internationally, are differentiated. The Commission understands that the criterion of self-identification is the principal one for determining the condition of indigenous people,[174] both individually and collectively. The inclusion of both groups in this section is for purely methodological reasons, because the issues that the Commission considers important for the two groups are similar or closely related.

217.     The Commission stresses the fact that the most recent population census, conducted in 2001, included the self-identification criterion to establish the percentages of indigenous people 15 years or older in Bolivia.[175] According to that census, more than 60% of the Bolivian population is indigenous, and of that group 55% live in rural areas,[176] where the situation of extreme poverty exceeds that in urban areas by 100%.[177] Indigenous peoples in Bolivia are for the most part Quechua, Aymara, Guaraní, Chiquitano and Mojeño, in descending order of numbers.[178]

218.     As to the legal framework, the Commission notes that Bolivia ratified Convention 169 of the International Labour Organization,[179] and that the constitutional reform of 1994 incorporated significant changes consistent with that instrument.  In effect, as recognized in the Bolivian constitution, the Bolivian State proclaims itself "multiethnic" and "pluricultural."[180]

219.     The scope of these terms is detailed in Article 171 of the Constitution, which recognizes the social, economic and cultural rights of indigenous peoples living in the national territory, in general terms as to their identity, values, languages, customs and institutions, with particular stress on community lands with respect to their use and sustainable exploitation of natural resources.  As well, it recognizes their right to legal personality and the faculty to administer and apply their own standards for the alternative settlement of disputes using their own procedures, provided these do not contravene the Constitution and the powers of the State.  These last two aspects include recognition of peasant communities.

220.     Despite the importance of constitutional recognition, there are frequent complaints that these rights are not included at all levels of national life.  There is a widespread perception that the situation will not move beyond declarations until collective rights are effectively exercised, so that they are transversely developed with that nature and its particular features, both in the Constitution and in the laws on various matters that may affect them directly or indirectly, and in their implementation.[181]

221.     The Commission notes the efforts made in recent years to establish policies in favor of indigenous peoples and peasant communities through the creation of ministries, vice ministries, and specific entities focused directly on their needs.

222.     This is the case with the Ministry of Peasant, Indigenous and Agricultural Affairs, currently called the Ministry of Rural Development and Agriculture, which has a number of vice ministries and bodies among which we may mention the Vice Ministries of Lands and Biodiversity, as well as the National Institute of Agrarian Reform (hereafter INRA), which are intended to include the specific features of these groups in the framework of the respective administrations.  Similarly, the Commission welcomes the creation of the Vice Ministry of Community Justice under the Ministry of Justice, with the function to promote and implement guidelines for coordination between community justice and official justice within the framework established by law.

223.     Despite these legal and institutional advances, the Commission found that indigenous peoples and peasant communities continue to suffer discrimination, while government institutions have provided no effective response for the exercise of their human rights, and in particular their economic, social and cultural rights, on equality.

224.     The Commission received complaints of discrimination against indigenous peoples members or peasants in access to health, leading in many cases to deaths or disabilities through malpractice or negligence in the care provided, priority for which is decided according to the origin of the patient and not the severity of his health situation,[182]  This is of particular concern in those places where the demand for health services is much greater as the result of severe environmental pollution, lack of access to drinking water, and exposure to toxic chemicals, all deriving from the exploitation of natural resources as detailed below (paragraphs 251-256).

225.     Moreover, civil society complains that in rural areas public funds that are supposed to be earmarked for health are often doled out in a political way, especially in the run-up to elections, without any permanence in the provision of service and without recognizing such service as a human right that must be guaranteed by the State.

226.     On the right to education, the Commission noted that there are severe problems with access to "official education", especially in rural areas. As with exercise of the right to health, access and attendance at education institutions is politicized, and depends on the beneficiary's relationship with the regional political powers, and communities that are identified with their traditional organization as maintain differences with the groups in power are excluded[183].  This has produced very high levels of illiteracy in municipalities where the majority are indigenous, with a particular gender bias.  As was confirmed in the 2001 census, illiteracy rates for indigenous women in rural areas are much higher than those for men in all cases.[184]

227.     In addition, the Commission noted that, despite the launch in 1995 of an education reform, known as "Intercultural and Bilingual Education," with a view to restoring and recognizing indigenous languages, civil society remains critical of that campaign, because education data from the National Institute of Statistics show that there are structural problems in the sense that categories and parameters for measuring variables are determined on the basis of a monocultural concept of society.[185]

228.     There are complaints that bilingual education has not been properly implemented, because of the shortage of trained personnel and persistence of the idea that strengthening the indigenous language has implications, in the context of a society with a history of profound exclusion and discrimination, for the exercise of rights, particularly in the case of children.[186]

229.     The Commission found that the important process of change that the current government is promoting in Bolivia has, as one of its major focuses, the inclusion of indigenous people in society and in the various decision-making bodies of government.  Nevertheless, there is still a shortage of specific measures based on a thorough diagnosis of the severe violations of human rights committed against these historically excluded groups, a situation that is exacerbated by lack of access to effective judicial protection.

230.     In the following paragraphs, the Commission records its observations on the issues that it considers the State should address, as priorities, to give effect to social inclusion: access to land and territory; natural resources and participation in development projects; forced labor, debt bondage and slavery; and access to justice.  At the end of this section the Commission will offer some recommendations.

B.         Access to land and territory

231.     The Commission has been following the process of agrarian reform in Bolivia and has noted with concern the precarious situation of indigenous peoples and peasant communities with respect to access to land and territory that are theirs by right of their ancestral use or occupancy, in the case of indigenous peoples, or by virtue of their work on the land, in the case of the peasant communities, in accordance with domestic legislation.

232.     As a historical reference, in 1953 the agrarian reform process was initiated to redistribute lands from the large estates (“latifundios”) under the slogan "the land belongs to the people who work it."  This reform was implemented only in the Andean region of the country, where progressive subdivision by transmission from father to son generated smallholdings (“minifundios”) and impeded assignments to large expanses of land.[187]

233.     Meanwhile, in Eastern Bolivia there was a process of transforming traditional ranches into modern businesses which were declared inafectables (lands not subject to transfer) both as to their size and their labor rules.[188]  This has exacerbated the concentration of economic, political and social power in a small regional elite that has so far been denying the right of indigenous peoples to ownership of their ancestral territories. With a few exceptions, these territories remain the property of ranchers and agro-industrial groups.[189]

234.     In the wake of widespread social protests in rural parts of the country, Law 1750 was issued on October 8, 1996.  This was the National Agrarian Reform Act, which established a process for regularizing and granting title to land in order to deconcentrate land ownership and redistribute land among those who had little or none, and to return ancestral territories to the indigenous peoples in the country's highlands and lowlands.  The INRA was created for this purpose.

235.     There is a general feeling of frustration in Bolivia over the implementation of this law.  The Commission verified that, while 100% of lands were to be regularized by 2006, the actual figure stands at 13%.[190] Various representatives of civil society reported to the Commission that the following factors have influenced these results.

236.     On one hand, there are repeated complaints of corruption among officials both of the INRA and of the National Agrarian Tribunal, who fail to carry out their administrative and judicial responsibilities, or who bend procedures to the prejudice of indigenous peoples and peasant communities.  As an example of irregular practices, they mentioned the validation of fraudulent ownership documents; alteration of the expert report procedures established by law replacing them with false documents; lack of access to information for indigenous peoples and interested communities; and the excessive formalities required, such as the presentation of a brief signed by a lawyer, or payment for certain official procedures.[191]

237.     Another obstacle has been the difficulty in issuing individual identity cards and legal recognition for peasant organizations or indigenous authorities, without which it is impossible to obtain ownership title and representation rights, both before administrative and judicial bodies, and this has impeded any real possibility to counter the allegations of landholders in the agrarian courts.[192]  As the Commission was informed, there are no regulations on the recognition of legal personality, and in practice it is the municipal councils and the mayors who grant such recognition, without any uniform standards or rules.

238.     The Commission also received complaints of indefinite delays in the identification of available lands and difficulties in enforcing the few decisions in favor of indigenous peoples and peasant communities, reflecting the lack of will on the part of the respective authorities.  The Commission was informed about threats and violence against them and the organizations that support them.  Given the failure to recognize their rights, peasant farmers and indigenous people have on occasion taken allegedly illegal possession of lands, and this has been a source of conflict with landholders, and the cause of many forced evictions.[193]  The Commission also received information on cases of evictions ordered by resolutions of the INRA, before the processing of land claims had been completed.[194]

239.     Another point to be noted is that government authorities are constantly promoting conciliation proceedings in which, given the precarious living conditions of indigenous peoples and peasant communities, those people are induced to be "flexible" and in the worst cases to cede their territorial rights.[195]

240.     Subsequent to that law, a number of decrees were issued, without any consultation of the interested parties, under the guise of technical standards that, in practice, have obstructed and frustrated the process of agrarian reform, and have boosted the market for land.[196]

241.     The Inter-American Court has established parameters that must be respected by States in the course of assigning ownership and returning ancestral lands and territories to indigenous peoples.  It has held that "by refusing to recognize the ancestral right of members of indigenous communities to their territories, other basic rights could be affected, such as the right to cultural identity and survival of indigenous communities and their members."[197] It has also observed that "on the contrary, the restriction on the individual right of private property could be necessary to achieve the collective goal of preserving cultural identities in a democratic and pluralistic society, within the meaning of the American Convention, and it could be proportionate, if payment of fair compensation is made to those who suffer losses, in accordance with Article 21.2 of the Convention."[198]  In any case, “when States are unable, for concrete and justified reasons, to take measures to return traditional territory and communal resources to indigenous peoples, the compensation granted must be based primarily on the importance that the land has for those peoples."[199]

242.     The Commission also notes that the Inter-American Court has stressed the need to ensure that administrative procedures for handling land claims must take into account the specific aspects of indigenous peoples, in particular the special meaning that the land has for them.[200]  The Court has also held that States must ensure that such proceedings are accessible and simple and that the agencies responsible for them have the technical and material conditions necessary to respond promptly to applications and requests submitted in the course of such proceedings.[201]

243.     The Commission learned that on November 28, 2006, Law 3545 was approved, renewing the agrarian reform and amending the INRA Act. Although, as it noted, there are various positions on this new law, the majority of society sees it as holding out hope of real and effective access to land for historically excluded groups.

244.     The Commission welcomes this initiative and hopes that in its implementation the necessary efforts will be made to overcome the institutional obstacles described above, and to make it a real instrument for recognizing and awarding title to and/or return of the ancestral lands and territories of indigenous peoples, a collective right that, as the Inter-American Court has held, is included in the right to property enshrined in Article 21 of the American Convention.[202]

C.         Natural resources and participation in development projects

245.     In parallel to the drawn-out and obstacle-strewn process of granting title to lands and territories described in the preceding section, there has been an expeditious process of concessions to private businesses to exploit lumber and mining and hydrocarbons resources, a process that has sparked claims and disputes over lands that are still in the regularization process.[203]  The Commission was concerned at information received on the manner in which these projects have been carried out, from design to implementation, in two respects.

246.     On one hand, these concessions were made without any prior and informed consultation with the interested indigenous peoples and communities.  The Commission reminds the Bolivian State that Article 23 of the American Convention protects the right of all citizens to participate in public affairs of concern to them.  In the case of indigenous peoples and of development projects planned for the lands, territories and natural resources that they use or occupy, this right entails prior procedures of free and informed consultation, as indicated in ILO Convention 169.[204]  The Commission notes that such procedures must involve the groups that may be affected, either because they own land or territory or because such ownership is in the process of determination and settlement.

247.     On this point, the Commission noted the decision of the Constitutional Tribunal in June of 2006, ruling that the reference to "securing the consent of the indigenous and aboriginal communities and peoples" in the Hydrocarbons Act is unconstitutional, on grounds that the consultation of indigenous peoples must not be understood in the sense of requiring authorization for exploitation activities, for the subsoil belongs to the State and the interests of the majority cannot be jeopardized by the lack of consent from indigenous peoples. In this respect, the Tribunal holds that the purpose of the consultation is to quantify damage and not to obtain consent.[205]

248.     The Commission emphasizes that the consultation procedure, in the sense of guaranteeing indigenous peoples' right to participate in matters that may affect them, is of much broader scope: it must be designed to secure the free and informed consent of these peoples, and must not be limited to notification or quantification of damages.  On the contrary, it must guarantee participation by indigenous peoples, through the consultation process, in all decisions on natural resource projects on their lands and territories, from design, through tendering and award, to execution and evaluation. It must also ensure that such procedures will establish the benefits that the affected indigenous peoples are to receive, and compensation for any environmental damages, in a manner consistent with their own development priorities.[206]

249.     Beyond the absence of consultations preceding the design and execution of natural resource projects on the ancestral lands and territories of indigenous peoples, the Commission regrets that the foregoing decision places judicial constraints on the scope of their participation in such consultation, notwithstanding Article 6.2 of ILO Convention 169 which applies to this issue, having been incorporated into Bolivian legislation at the time of its ratification.

250.     The Commission was also concerned at the severe environmental pollution that some of these development projects have generated and the harmful effects they have had on the continuity of basic subsistence activities and on the health of members of indigenous peoples and peasant communities living on the territories occupied by those projects.

251.     The Commission was informed of two symptomatic examples of this situation.  The first had to do with severe pollution of the waters of the Pilcomayo River in the departments of Potosi and Tarija in the south of the country, affecting both indigenous peoples and peasant farmers whose agricultural or other subsistence activities such as fishing have been severely disrupted by the quantity of toxic wastes such as metals and other elements. The Commission noted in particular the complaints over the health effects on people who by necessity continue to ingest contaminated food, a situation of particular vulnerability for children and women of childbearing age.[207]

252.     Another example of the situation relates to the gas pipeline to Brazil, which passes through the dry forest of Chiquitano.  That forest, the Commission was advised, constitutes ancestral territory of the indigenous people of the same name, and has been severely affected by the pipeline, for the majority of its creeks and watercourses essential for subsistence activities are being polluted by wastes from the project.[208]

253.     On this point the Commission reminds the State that the right to life enshrined in the American Convention includes the right to a dignified existence[209] and that when the State becomes aware of the serious situation facing persons who live in areas close to rivers and creeks polluted by natural resource projects, it is the State's duty to adopt all the measures at its disposal to mitigate the damage caused by the concessions it has granted, and to impose sanctions for the failure to comply with applicable environmental or criminal legislation.  The Inter-American Court has held the failure to take such measures, despite knowledge of the severity of the situation, to engage international responsibility for the effects on life and personal integrity flowing from those conditions.[210]

254.     The Commission has observed that one of the aspects exacerbating conflicts in Bolivia is the tension that exists between indigenous and peasant communities, on one hand, and the State and concessionaire firms in projects of this kind, where the sustainability of such projects is not measured in advance, using effective mechanisms of participation for the persons and groups affected, regardless of whether the State has recognized their ownership, and where environmental and even criminal liability rules are deliberately ignored without any penalties imposed by the State.

255.     In the Commission's view, these shortcomings reflect the failure to give effective application to Law 1257 of 1991 which incorporated ILO Convention 169 into domestic legislation.  The provisions of that Convention must be incorporated horizontally into legislation governing the entire process of design, award and implementation of natural resource projects, and the absence of such regulation must not serve as an excuse for not applying the international rule which, as noted above, is part of domestic legislation and is automatically enforceable.

256.     Finally, the Commission is concerned at the defenselessness of indigenous peoples and peasant communities in the face of these projects, which has been exacerbated by the lack of judicial mechanisms for challenging their impact.  Although there are criminal penalties for failure to observe environmental rules, the Commission received information, from officials of the Prosecutors’ Office among others, to the effect that the few criminal actions initiated over these events have been delayed and obstructed by lack of action on the part of the prosecutors, and by external pressures.  Moreover, the organizations representing the persons affected by this situation complained that they have no preventive judicial remedy for extreme situations that may affect their right to life.  Nor, according to that information, are there any judicial steps that could be taken collectively by a group affected by such a situation, such a class action.

D.         Situation of forced labor, bondage and slavery

257.     The Commission learned that there are many people who, in a variety of circumstances, have been subjected to situations of bondage analogous to slavery, aggravated in some cases by forced labor, dating back for decades and still persisting because of the lack of any comprehensive and effective response from the State.  The Commission has received detailed information on the case of Guaraní families living on estates in the Bolivian Chaco, although it is aware that this is not the only situation of that kind.[211]

258.     The information received during previous hearings of the Commission was verified in meetings with civil society organizations and representatives of the Public Defender, who told of at least 600 Guaraní families living on estates in the departments of Santa Cruz, Tarija and Chuquisaca[212] who are subject to this form of existence as the result of failure to recognize and grant title for their ancestral lands and territories.

259.     This situation has persisted for decades and, in general terms, involves excessive physical labor for persons of all ages, including children, teenagers and elderly adults, in some cases under the threat of corporal punishment, about which the Commission heard alarming testimony.  This labor is compensated through payments in kind or through minimal amounts of money that not only ignore the long working days but under no circumstances are sufficient to cover the workers’ basic subsistence needs. Because of this insufficient compensation, workers find themselves in a situation of permanent indebtedness to the landowners for the provision of foodstuffs, clothing and other products, a status that may actually be passed on to successive generations.

260.     According to reports, the landowners simply refuse to recognize the existence of a relationship of bondage with Guaraní families, and attempt to dismiss it as something from a bygone age that no longer pertains. The owners, who frequently are part of or are directly related with the local political power, minimize the situation and justify the circumstances as a cooperative arrangement given the needs of the Guaraní families. In effect, the situation is not perceived as one prohibited by the Constitution, but rather as a labor relationship with obligations agreed and fulfilled by parties who periodically cancel and renew them.[213]

261.     These indentured families survive in absolute misery and their living conditions are precarious and subhuman.  They generally sleep in huts located in marginal areas of the estate where the land is not productive.  Their huts have only one room, no bigger than 20 m², and it contains a kind of bed where all members of the family sleep.  Sanitary facilities are located outdoors, and the kitchen consists of stones placed on the ground that support the receptacles.[214]

262.     As to the kind of labor performed, this is defined by roles.  The women are engaged primarily in kitchen work and must take food out to the men working in the fields, generally several kilometers distant.  They also perform other tasks such as peeling manioc, carding wool, cleaning the estate houses, tending chickens, and washing clothes.  They work from 4 a.m. to 6 p.m., and yet the ranchers still view the Guaraní woman as "lazy and careless". As for the men, their work depends on the season, and their day begins at 7 a.m. and ends at 6 p.m.  Children and teenagers of Guaraní parents, depending on their age, work in exchange for food, shelter or study.  If they are of school age, some may attend school, but in the afternoon they work together with their fathers. In other cases the children do not attend school, and instead receive instruction from the boss.[215]

263.     The Commission received testimony about situations of physical mistreatment including whipping for "disobedience", a situation that has been corroborated by a number of owners who were questioned and who in response indicated that the Guaraní are a shiftless lot and that they have to “be goaded into action.”[216]

264.     The situation of indebtedness arises through the accounting notebook that the employers keep on their workers, where they record the name, the activities performed, advances in kind or cash and payments made for work done.  This notebook, updated periodically, is the only record for use in "settling up" matters and in which nearly in all cases the workers find themselves in debt to their boss.  This generates future labor obligations, a situation that can last for the rest of the worker’s life and be passed on to the next generation. It was found in some cases that landlords and employers transferred their indentured workers to another landlord or employer disposing of the liberty of the worker.  In such cases, the purchaser pays the debt to the previous owner, and the workers remain indentured to the new landlord or employer.[217]

265.     One factor that allows this situation to persist is the high rates of illiteracy among the population, who, in general, are unaware of their rights and have no way to control the debts recorded in the notebooks at the time of "settling up" matters with the landowner.  The result of this is that the landowner defines the conditions of work, the length of the working day, payment for the work, the form of payment of the debts acquired, the frequency of settlements, the way advances are handled, the type of work to be done, etc.[218]

266.     Coupled with this situation is the issue of the structure of landholding and its distribution in the affected regions.  For example, in the region of Huacareta in the Department of Chuquisaca, the current land owning system is a result of subdivision and successive inheritance from the original owners in favor of their sons and relatives, who at the present time own vast extensions of land in contrast to the Guaraní families who have not hectare of property.[219]

267.     One of the practices that have had continuity is the one undertaken by the Catholic Church and certain NGOs who have promoted and engaged in the purchases of land and resettlement programs providing basic services for approximately 500 families.  However that practice might be understood as a humanitarian measure, due to the fact that such lands originally belonged to the Guaraní people and thus should be recognized and titled by the State. Coupled to the land purchases, the Assembly of Guaraní People and other organizations have started to demand for the  regularization of the "Community Lands of Origin,"[220] a process that, as indicated above (paragraphs 235-240) has severe shortcomings of both proceedings and execution: particularly because of it based in favor of the interest of livestock owner and land-owners, and in the reduction of claims and awards of very small parcels of land, in contrast to the vast extensions of land held by private individuals.

268.     The situation described has been exacerbated by the lack of response from the State at all levels.  The local authorities such as the mayors, deputy mayors, prefects, subprefects, municipal councilors, judges, police officers, civil registrars, and juvenile defenders, do not fulfill their legal responsibilities nor do they implement public policies to avoid violations of the law and of human rights.  In other cases, the minimal staffing of these entities results in a total absence of the State in the region.  This is the case, for example, with labor officials such as workplace inspectors or labor judges who, being institutionally incapable of dealing with the issue, create an aura of legitimacy for the bosses who consider the situation to be "normal."[221]

269.     This situation is of profound concern to the Commission, for it ignores the absolute prohibition against slavery, bondage and forced labor contained in the American Convention and other international instruments to which Bolivia is party.[222]

270.     The UN Supplementary Convention on the Abolition of Slavery, the Slave Trade, and Institutions and Practices Similar to Slavery[223] defines the following as practices analogous to slavery:

Debt bondage, that is to say, the status or condition arising from a pledge by a debtor of his personal services or of those of a person under his control as security for a debt, if the value of those services as reasonably assessed is not applied towards the liquidation of the debt or the length and nature of those services are not respectively limited and defined;[224]

Serfdom, that is to say, the condition or status of a tenant who is by law, custom or agreement bound to live and labour on land belonging to another person and to render some determinate service to such other person, whether for reward or not, and is not free to change his status.[225]

271.     The Commission deplores the continuity of practices such as those described in this chapter which, in addition to being forms of bondage analogous to slavery, constitute a form of forced labor, since in many cases its continuity is enforced by the threat or application of corporal punishment.  The situation also involves violations of other rights such as that to humane treatment, both physical and mental; the right to a dignified existence; and the right to education, as well as access to justice under such circumstances.  All these rights are enshrined in the Constitution of Bolivia and in the international human rights instruments ratified by Bolivia, particularly in the Inter-American sphere: the American Convention on Human Rights, and the San Salvador Protocol of Economic, Social and Cultural Rights.

272.     With respect to the initiatives taken by the State since the 1990s, the Commission verified that they have all been based on partial or isolated studies of a few families, without taking into account the full scope of the problem and all the factors involved. For this reason those measures have had no significant impact, and their continuity has been disrupted by periods of political instability in the country.[226]

273.     The Commission recognizes the intention of the current government to give priority to the situation, and it notes the impetus given to the Draft Law on Regulation of Unpaid Rural Labor, approval of which would imply, at least in legal terms, the obligation of landowners to pay wages and social benefits.

274.     In the Commission's view, the measures taken in this direction must include at least two perspectives.  On one hand, they must be designed to strengthen the process of recognition and registration of indigenous peoples' ownership over their ancestral lands and territories; and on the other hand, they must eliminate any distortion of the labor and social rights of persons working in rural areas, including work on the land and the harvesting of products.

275.     In any case, the Commission must emphasize that the design of policies and programs to eradicate this alarming situation must begin with a thorough diagnosis that includes data on all families and persons subjected to this form of life, the related social, cultural and psychological factors, and the various private and government players involved, particularly the shortcomings in the various administrative and judicial bodies whose effective presence in many of the places where this reality persists is virtually nonexistent.

276.     Consequently, the Commission urges the Bolivian State to give priority to designing and implementing measures that will address both the complexity of the issue and its actual extent, and that deal with the legal, institutional and other obstacles that have frustrated past initiatives.

E.         Access to justice

277.     The situation of indigenous peoples' access to justice must be analyzed from two perspectives, both in their quality as Bolivian citizens and in their condition as indigenous peoples with their own valid legal system: (i) the additional obstacles facing these sectors of society in obtaining responses from the authorities of the official justice system; and (ii) recognition of indigenous law and justice administration.  These two perspectives must be understood as constituent elements of the right of access to justice for indigenous peoples, and as in no way mutually exclusive, in the sense that the guarantee of one would exempt the State from the other.

1.         Access to the official justice system

278.     One of the initiatives proposed to facilitate access to justice for indigenous peoples and peasant communities is to strengthen the “justice of the peace” as an alternative dispute settlement mechanism.  In January 2006 the Judicial Organization Act was amended with respect to the jurisdiction and competence of these judges to promote conciliation in disputes between individuals, communities or neighborhoods, and to resolve them equitably when conciliation fails. There is to date no accurate information on how these rules have been implemented, or on the results.[227]

279.     Beyond the importance of strengthening the justices of the peace, indigenous peoples and peasant communities face obstacles in presenting their claims before the official justice system.  The problems most frequently cited relate to land ownership and possession; access to basic services; recognition of the legal personality of indigenous peoples and communities; enforcement of labor rights for persons subjected to forced labor and bondage; and claims for environmental damages occasioned by development projects.

280.     With respect to agrarian jurisdiction, the Commission received information to the effect that the selection of judges is related to regional political and economic interests.  According to such complaints, following a resolution issued by the INRA, which might be favorable to indigenous or peasant communities, the landowners will turn to these judges, who in most cases issue discriminatory and unsubstantiated rulings in their favor, even referring to them in the judgments as "small farmers."  What is alarming here is that in these processes the right to defense of the indigenous peoples or peasant communities is diminished, because they are not parties to the proceedings.  As the Commission was informed, the jurisprudence of the National Agrarian Tribunal holds that they may participate in proceedings within agrarian jurisdiction, but they will have the status only of interested persons and not of parties.

281.     With respect to applications for recognition of the legal personality of indigenous peoples and communities and peasant farmers' unions, representatives of civil society gave the Commission information revealing the excessive formality and the nearly certain negative response of both the administrative and judicial authorities, even in actions for amparo.  The Commission noted that these problems create a perception on the part of civil society that social protest is more effective than administrative or legal channels for pressing demands, for the latter will always be a lost cause.

282.     With respect to access to basic services, and recognition of labor rights in rural areas in which there are serious situations of forced labor and bondage, the Commission was told that there are no labor judges or inspectors to turn to.  As an example, there are areas where families are kept captive on large estates where the nearest labor judge may be 500 km away. In the few places where the executive and judicial branches have a physical presence, there is no infrastructure or staff to handle complaints, or else the local authorities have been corrupted by political and economic interests, making it impossible to obtain effective and prompt responses.

283.     With respect to environmental complaints, including severe damage to people’s health and livelihood, various civil society organizations working with these issues, as well as some State authorities, informed the Commission that, apart from criminal proceedings, there is no judicial mechanism to challenge these situations, such as an appeal for amparo or an act of popular initiative.

284.     Finally, the Commission was informed that, although the Code of Criminal Procedure establishes certain special guarantees for members of indigenous peoples and peasant communities,[228] these are not effective, primarily for lack of training among officials of the Prosecutors’ Office and the judiciary, and the consequent lack of will to order the enforcement of those guarantees.  One serious factor is the lack of official translators for indigenous people who do not speak Spanish, and the almost complete absence of public defenders who speak indigenous languages.

285.     The Commission reminds the State that, in the jurisprudence of the Inter-American Court, access for indigenous peoples to official justice must take into account their particular features, their economic and social characteristics, their vulnerability, their customary standards, and in general their values, uses and customs, in the context of the rights to judicial protection and to judicial guarantees enshrined in Articles 8 and 25 of the American Convention.[229]

2.         Indigenous law and justice

286.     As to the second perspective, the so-called "community justice"[230] that the indigenous peoples of Bolivia have exercised for thousands of years, this constitutes one of the most debated issues of recent years in the country, and has gained special currency since the constitutional election of the current President of the Republic, Evo Morales, for it was incorporated as a priority in his political platform and is likely to be one of the crucial aspects that the National Constituent Assembly will have to grapple with.

287.     The Commission observed that the issue has become a matter of great public debate and that positions are sharply polarized.  Indeed, the debate is not limited to the political factions controlling the constituent process but is evident within the distinct sectors of civil society itself, and even within the branches of government, which have demonstrated the most varied and even antagonistic positions.

288.     Nor does current domestic legislation shed much further light on the issue, for in its generality and vagueness it can be interpreted in various ways. [231]  For example, the legal recognition of community justice is unclear as to its hierarchy, and this has generated a degree of confusion, even over the alternative dispute settlement mechanisms that are supposed to offer a way of circumventing the judicial case backlog, especially with the institution of Justices of the Peace with the power to take decisions in equity.

289.     Another confusing issue is to determine what persons are recognized within the constitutional and legal concept of community justice, since the rules include indigenous and peasant communities without specifying any distinction, despite the obvious difference of these categories in terms of their history and the origin of their rules and procedures for applying justice. The issue was superficially addressed by the Constitutional Tribunal, which described this difference but drew no conclusions in terms of recognizing the right of one category or another to administer justice by its own methods.[232]

290.     Similarly, and given the lack of certainty in this area, the Constitutional Tribunal has in some isolated cases exerted a kind of control over decisions adopted in the community justice system.  Thus, in exercise of its powers to consider appeals for amparo and habeas corpus, it has decided approximately 20 cases in which it has established certain criteria[233] that, while relevant, do not identify specific coordination parameters of general application.

291.     In the midst of this rather confused panorama of legal, jurisprudential and political considerations, the IACHR observed two aspects which need to be clarified in the light of indigenous peoples’ rights under international human rights law, especially ILO Convention 169.[234]

292.     On one hand, the Commission is concerned that some of the most senior State bodies and certain sectors of civil society, including some of the communications media, persist in the idea that "taking justice into one's own hands" or lynchings are a reflection of community justice.  The Commission reiterates that acts of this kind constitute gross violations of human rights and they must be investigated and punished by the State and that they cannot be understood as consistent with indigenous law and justice in the sense recognized in the Constitution and internationally,[235] for the fundamental assumption in applying them is precisely the respect of human rights.[236] It is regrettable that such lynchings are used as a means of stigmatizing indigenous justice and denying it full recognition, when in fact one of their principal causes is the tenuous writ of the Prosecutors’ Office and the judiciary and their inability to prosecute and punish crimes in more than half of Bolivian territory, as detailed above (paragraphs 63 and 65).

293.     The Commission also wishes to clarify the scope and ranking of recognition of indigenous peoples' conflict resolution methods, provided they comply with the prior assumption of compatibility with constitutional and international human rights provisions.  The Commission considers that the recognition of community justice as an "alternative means" must not be interpreted as resulting from the lack of coverage of the official justice system, and must therefore not be conditioned on the continuity of official institutional weaknesses.  On the contrary, indigenous law and justice must be recognized as a human right of a collective nature, without any implication that the State is thereby exempt from providing those peoples the services of official justice due to them as Bolivian citizens, whereby they are guaranteed access to justice in the context of conflicts with non-indigenous individuals or arising outside the community territory.

294.     As the Constitution itself indicates, the scope and effective application of the law requires a legislative framework that will reconcile, on one hand, the power of indigenous peoples and peasant communities to apply their own rules and mechanisms for dispute settlement, and on the other hand the functions of various State bodies, in particular but not exclusively those involved in criminal prosecution.

295.     The Commission observed that the ambiguity in this legal framework, together with the total absence of regulation to date, constitutes the principal cause of the confusion over this issue that prevails both in civil society and in the various State institutions of Bolivia.  There have been some attempts to draft legislation in this area, but they have not prospered, for various reasons that will not be detailed here. Currently, with the impetus that the government has given to the issue by creating a Vice Ministry of Community Justice under the Ministry of Justice, a new draft law has been prepared, called "Administration of Justice of Indigenous-Aboriginal Peoples and Peasant Communities."

296.     Without examining the specific contents of that draft, the Commission considers it relevant to note that a legal instrument of this kind, for purposes of achieving coordination between community justice and official justice, must be drafted with the participation of the peoples and communities interested, and must establish negotiated guidelines relating to at least the following: powers with respect to the subject matter, territory and subjects involved; mechanisms and criteria for resolving possible conflicts of jurisdiction; channels of dialogue for remitting cases to indigenous justice from official justice and oversight mechanisms the legitimacy of which is recognized by the authorities of both judicial systems in case the parties claim a conflict with their human rights.

F.         Recommendations

297.     By virtue of the foregoing, the Commission recommends that the Bolivian State:

1.       Take all steps necessary to eradicate any kind of discrimination based on the indigenous and/or peasant condition of persons subject to its jurisdiction, particularly in access to justice, education and health, and to the benefits of other State policies intended to increase the coverage of economic, social and cultural rights.

2.       Ensure that all measures taken in connection with the right to education and health for indigenous peoples are compatible with their particular worldview and the maintenance and strengthening of their cultural identity, and that they in no way imply a form of assimilation of indigenous peoples into the non-indigenous culture.

3.       Guarantee effective enforcement of the new law relating to agrarian reform, adopting the necessary measures to eliminate the obstacles cited by the Commission that have prevented access to land and territory for all sectors of Bolivian society. As part of this process, it is essential that the State bear in mind the particular relationship that indigenous peoples have with the land and that consequently, in the process of land titling, it must give priority to recognizing their ancestral lands and territories as essential for the survival of their cultural identity.

4.       Incorporate the provisions of ILO Convention 169 on this issue into its domestic legislation on development projects, and adopt measures for their effective enforcement.

5.       Consistent with its international obligations, guarantee the participation of indigenous peoples and affected communities in projects for the exploration and exploitation of natural resources, through prior and informed consultations designed to obtain their free consent in the design, execution and evaluation of those projects, as well as in determining benefits and compensation for damages, according to their own development priorities.

6.       In the context of projects underway, implement participatory mechanisms to determine the environmental damages they may be causing and their effects on the basic subsistence activities of indigenous peoples and peasant communities living in the vicinity of such projects. If their lives or personal integrity are threatened, such projects should be immediately suspended and the appropriate administrative and criminal penalties imposed. If the projects continue, the State must guarantee that affected persons will share in the benefits from those projects, and it must determine and enforce compensation for such damage.

7.       Guarantee access to an adequate and effective judicial remedy for challenging environmental damages of a collective nature so that, in addition to criminal action, there will be a mechanism of a judicial nature to obtain an immediate response in circumstances where projects are causing irreparable damage to groups of individuals.

8.       Give priority to measures for eradicating forced labor and bondage, and take immediate steps to strengthen the recognition and regularization of property for persons affected by this situation, and to prevent any weakening of labor and social rights for persons working in the rural sector.

9.            Conduct an immediate analysis of the situation of bondage analogous to slavery and/or forced labor in various parts of Bolivia, including data on all families and persons subjected to this form of life, the related social, cultural and psychological factors, and the various private and State players involved, particularly weaknesses in the various administrative and judicial bodies.

10.         Adopt necessary measures to guarantee that recognition of community justice does not depend on the coverage or procedural workload of official justice, but stems from the pluricultural nature of the Bolivian State and from respect for the autonomy of indigenous peoples.

11.          Establish, in the short term, guidelines for coordinating official justice with community justice, taking into account at a minimum the parameters set out in the respective section of this report.