Access to justice: perspectives for
indigenous communities in
Ecuador and Bolivia
BY
MAURICE VAN DER VELDEN1
1
Maurice van der Velden has obtained a Master in Human Geography at the
Radboud University Nijmegen, The Netherlands. He is currently a researcher and
data analyst at Effectius.
Effectius
All over South America, the access to justice of people living in rural areas is highly
limited. It is even more so for rural indigenous people, let alone for rural indigenous women,
who are generally the most excluded, marginalised and unrepresented of all. About 60% of
Bolivians consider themselves to be indigenous, compared to 50% of Peruvians and 30% of
Ecuadorians2. In recent decades these large numbers of minorities or actual majorities of
indigenous communities have become more engaged in claiming their rights and are slowly
obtaining a stronger impact on national politics, most notably in Bolivia and Ecuador.
In Bolivia, a country marred by political turmoil, indigenous and peasant uprisings and
the abject impoverishment of large parts of the population, a former leader of the union of
coca growers, the indigenous “Aymara” Evo Morales, has recently risen to the presidency.
Ecuador, in contrast, has a history of the strong unified mobilisation of indigenous
communities under the confederate banner of CONAIE and, after several presidents were
ousted in the 1990s and 2000s, the indigenous groups seem to have a more firm influence on
national politics since the election of Rafael Correa in 2007, though lately relations have
soured yet again.
This growing political influence of indigenous communities does not
necessarily equate to an increasing equal inclusion of and respect for indigenous peoples.
New indigenous leaders face an uphill struggle to make a central government with limited
political will and little resources reach out to its most remote, mostly rural, communities. To
what extent have indigenous peoples really profited from an increased access to justice in the
last five years?
The new Bolivian government managed to codify human rights and draft
declarations and specific legislation to recognise the rights of indigenous peoples and,
significantly, women. The country is officially “multi-ethnic” and “pluri-cultural” and
recognises its diversity on an equal basis. Important improvements have been recognised by
the Commission on Human Rights of the Organisation of American States, but institutional
reforms – towards a new parliament and a new Constitutional Court – have created some
severe transitional problems. An important positive move was the launch of a Bill of Rights
in 2004, defining the equal rights and the right to free justice, essential in lowering the barrier
2
Though these figures are always highly debatable due to the use of different methodologies.
[2]
Access to justice: perspectives for indigenous communities in Ecuador and Bolivia
to justice in a country where the majority of people are primarily concerned with making ends
meet and where legal assistance is unaffordable.
However, in those cases where some
barriers to accessing the national justice system have been lifted, the highly limited justice
system often cannot enforce laws in practice and if it does, it mostly fails to respond in a
timely manner because of corruption, inefficiency and political interference. Also, while
small steps are being made in the direction of recognising indigenous lands and granting land
titles, there still is little access to justice when large-scale projects exploiting natural resources
affect the environment where indigenous communities live. Many reforms and legal changes
are not (yet) sufficiently implemented as authorities lack human and financial resources,
which are also manifested in an increasing but still rather limited coverage of judicial
services. There is a chronic lack or deficiency of basic infrastructure, such as few court
rooms, insufficient equipment and overcrowded and inhumane prisons. Judicial officials are
widely absent and only 55% of Bolivian municipalities have a judge, 23% have a prosecutor
and a mere 3% are served by a Public Defender.3 A long history of injustice cannot simply be
undone and so there still is a considerable gap between theory and practice. Despite this
sobering analysis, for a country like Bolivia, the importance of some symbolic steps such as
indigenous persons serving in the highest ranks of government cannot be underestimated.4
In Ecuador, the new Constitution that was adopted in 2008 defines the country as a
pluri-national and multi-ethnic state, and several advances have been made to better include
the approximately thirteen recognised indigenous „nations‟ or communities of the country;
however, it is a slow and difficult process. Just as it was seen before when indigenous groups
allied themselves with a President, discontent grew, followed by a rupture of the political
alliance. Like Bolivia and most South American countries, Ecuador is deeply polarised and
ardent support for the government contrasts with an equally large opposition. Ecuador has
seen presidents come and go in the last two decades and, despite a seemingly radical break
with previous neoliberal administrations and proclamation of 21st century socialism, Correa´s
government is equally unstable.
3
Organization of American States, “Access to Justice and Social Inclusion: the Road towards Strengthening
Democracy in Bolivia”, 2009.
4
Apart from the election of an indigenous President are the naming of indigenous persons as Ministers and
Vice-ministers, most notably the naming of Casimira Rodriguez as the first female indigenous Minister of
Justice in 2006. Rodriguez stepped down a year after her inauguration amid controversy over her lack of
experience in the field.
[3]
Effectius
In all this turmoil there seems to be little room for a sustainable policy of support for
human rights and necessary reforms to combat the lack of access to justice for most of the
country‟s indigenous peoples.
Legal efforts have been made in the drafting of a new,
supposedly progressive and egalitarian constitution that clearly bans all forms of
discrimination and lays down a great variety of human rights, but at the same time declares
natural resources of strategic importance. This invariably leads to conflict as positive legal
steps of protecting indigenous peoples are countered by practices by cash-strapped Ecuador,
such as a new Water Law and renewed high-profile economic plans – pressured by firms in
these industries– that all aim at the exploitation of various natural resources in indigenous
territories. These plans continue to meet with fierce – and often democratic – objections of
indigenous communities, who see their natural habitats and social, environmental and cultural
rights to be continuously and consistently infringed upon. In this situation of increasing
tensions, indigenous groups do not manage to find protection in the national justice system.
Nevertheless, as Ecuador‟s indigenous movement can be considered to be among the
strongest in the world, a sustained unified effort might help to slowly institutionalise their
communities in the national political and judicial system and have their rights better
respected.
Despite some positive advances made in recent years, in addition to the importance of
combating discrimination, acquiring equal political, socio-economic and cultural rights for
indigenous communities when dealing with national authorities, and having low-threshold
access to the regular justice system, there is a more fundamental issue at stake. As national
courts, lawyers and legal assistance are often still far away for many, local cases of injustice
and crime are mostly being dealt with by the local practices of justice. This system could
serve as a form of alternative dispute resolution and help reduce the backlog in the
overcrowded official justice system. However, indigenous justice is not always considered to
be on an equal basis with the national justice system.
In May, there was fierce debate over a case of a 22-year old man convicted of murder
who was punished by his community by fining him and making him carry a bag of rocks
around the town square before being tied to a pole and drenched with cold water while
townspeople yelled “traitor” and “murderer” to him in the local Quechua language. This led
to a public outcry, with the President calling it a “monstrosity” and the Minister of Justice
wanting the accused being brought to a national court, while ordering the arrest of the
[4]
Access to justice: perspectives for indigenous communities in Ecuador and Bolivia
community leaders for torture and mistreatment.
A subsequent court case against the
community leaders led to their release for lack of evidence, to which the government
responded by suspending the judge for misconduct. The case was passed to the Constitutional
Court for review.
The Ministry of Justice and legislators are now drafting a law to establish exactly
which cases can be handled by indigenous justice, supposedly “internal disputes”, and which
cases are to be tried before national, regular courts. The UN Rapporteur on human rights and
fundamental rights of indigenous peoples, James Anaya, has questioned the government‟s
approach to declassify indigenous judicial practice. Where the national justice system would
have the accused serve a long jail system, indigenous leaders claim prison sentences are
against human rights for restraining personal freedom and they are quick to mention how the
convicted can be re-integrated into society immediately after punishment.
The case above shows that the problem does not simply come down to assigning
competences to two different justice systems. The Inter-American Commission on Human
Rights stated in its latest report on Bolivia that there is a “glaring gap in the law with respect
to guidelines for coordinating official justice with community justice, and the serious
confusion this has generated”.5 The access to justice of indigenous people works on two
levels:
the right to access to justice is both as citizens of the respective Bolivian or
Ecuadorian State and as indigenous peoples. Both elements are essential and complimentary,
in no way mutually exclusive and recognised by many international and regional conventions.
The laws of both Ecuador and Bolivia recognise the jurisdiction of communal justice in
indigenous communities; nevertheless, discussion doesn‟t stop after simply establishing the
„borders‟ of both systems. What does one do if individuals within the system of communal
justice prefer to use the national justice system, and vice versa for people living in the
territory that falls under the jurisdiction of the „regular‟ justice system who prefer to have
their case treated by communal justice?
More than a mere legal dispute, it is a question of matching deep-rooted local cultural
practices of restorative justice with those cultural practices of a national state, a result of
5
Organisation of American States, “Access to Justice and Social Inclusion: the Road towards Strengthening
Democracy in Bolivia”, p.11, June 2007.
[5]
Effectius
colonisation, Western European „roman law‟ and international law. Maintaining a balance
between giving access to the national justice system and simply unilaterally imposing the rule
of law of this system – which is also seen as representing the oppressive practices since the
era of colonisation – is a matter of time, tact and trust. Walking the tightrope in a delicate
manner is never going to be easy.
Sources:
Burbach, R., “Ecuador's President Correa Faces Off With Indigenous and Social
Movements”, NACLA, January 2008
Caselli, I., “Ecuador's indigenous justice system on trial“, BBC World News, May 2010
CEDHU, “Por una democracia basada en la igualdad de derechos”, Derechos del Pueblo,
December 2008
CEDHU,
“Diálogo
intercultural
y
justicia”,
Derechos
del
Pueblo,
June
2009
NACLA Report on the America‟s, Interview of Nancy Romer with Casimira Rodriguez, 2006
Organisation of American States, “Access to Justice and Social Inclusion: the Road towards
Strengthening Democracy in Bolivia”, 2007.
Organisation of American States, “Access to Justice and Social Inclusion: the Road towards
Strengthening Democracy in Bolivia”, 2009.
Zorrila, C., “Ecuador: Correa Looks to Reopen Unpopular Mining Project in Junin”,
UpsideDownWorld.org, May 2010
Maurice van der Velden
Published as part of the Effectius Newsletter, Issue 8, (2010)
[6]