Report No. 38721

Bolivia

Towards a New Social ContractOptions for the Constituent Assembly

December 2006

Bolivia, Ecuador, Peru, Venezuela Country Management UnitESSD Sector Management UnitLatin America and the Caribbean Region

World Bank Document

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Vice President LCR: Pamela CoxDirector LCC6C: Marcelo GiugaleDirector LCSES: Laura TuckSector Manager LCSEO: McDonald BenjaminTask Team Leader LCSEO: McDonald Benjamin

CURRENCY EQUIVALENTSCurrency Unit – Bolivian Boliviano (BOB)

EXCHANGE RATE2005 BOB 8.0661 = US$ 1

WEIGHTS AND MEASURESMetric System

FISCAL YEARJanuary 1 – December 31

ABBREVIATIONS AND ACRONYMS

APG Asociación de Pueblos Guarani-Association of Guarani PeoplesCIRABO Central Indígena de la Región Amazónica de Bolivia-Indigenous Central Union

of the Amazon Region of BoliviaCOB Central Obrera Boliviana—Bolivian Central Workers’ UnionCSA Country Social AnalysisDfID UK Department for International DevelopmentFEGABENI Federación de Ganaderos del Beni-Federation of Livestok Producers of BeniGDP Gross Domestic ProductHCL Hydrocarbons Law of 2005IADB Inter-American Development BankILO International Labor OrganizationINE Instituto Nacional de Estadísticas-National Statistics InstituteINRA Instituto Nacional de Reforma Agraria—National Agrarian Reform Institute JICA Japanese International Cooperation AgencyLAC Latin America and the CaribbeanMACPIO Ministerio de Asuntos Campesinos, Pueblos Indígenas y Originarios—Ministry

of Peasant Affairs, Indigenous and First PeoplesMSD Ministerio de Salud y Deporte- Ministry of Health and SportsNGO Non Governmental OrganizationOTB Organización Territorial de Base—Basic Territorial OrganizationSIDA Swedish International Development AgencyTCOs Tierras Comunitarias de Origen—Original Community LandsUDAPE Unidad de Análisis de Políticas Económicas y Sociales-Economic and Social

Plicy Analysis UnitUK United Kingdom of Great Britain and Northern IrelandVIPFE Viceministerio de Inversión Pública y Financiamiento Externo-Viceministry

of Public Investment and External Financing

Bolivia: Towards a New Social Contract

Table of Contents

EXECUTIVE SUMMARY..................................................................................................i

1. INTRODUCTION.....................................................................................................1

2. INDIGENOUS RIGHTS...........................................................................................5INTRODUCTION.......................................................................................................................................5INDIGENOUS RIGHTS IN BOLIVIA.......................................................................................................6INTERNATIONAL EXPERIENCE REGARDING INDIGENOUS RIGHTS..........................................8CONSTITUTIONAL PRINCIPLES AND OPTIONS FOR THE CONSTITUENT ASSEMBLY.........10CONSIDERATIONS BEYOND THE CONSTITUENT ASSEMBLY...................................................11

3. LAND AND TERRITORY.....................................................................................13INTRODUCTION.....................................................................................................................................13LAND........................................................................................................................................................13TERRITORY.............................................................................................................................................18CONSTITUTIONAL PRINCIPLES AND OPTIONS FOR THE CONSTITUTIONAL ASSEMBLY. .20CONSIDERATIONS BEYOND THE CONSTITUENT ASSEMBLY...................................................21

4. DECENTRALIZATION WITH INCLUSION.....................................................23INTRODUCTION.....................................................................................................................................23DECENTRALIZATION IN BOLIVIA.....................................................................................................23INTERNATIONAL EXPERIENCE AND DECISIONS ON DECENTRALIZATION..........................27CONSTITUTIONAL PRINCIPLES AND OPTIONS FOR THE CONSTITUENT ASSEMBLY.........29CONSIDERATIONS BEYOND THE CONSTITUENT ASSEMBLY...................................................31

5. EQUITABLE ACCESS TO JUSTICE..................................................................33INTRODUCTION.....................................................................................................................................33ACCESS TO JUSTICE IN BOLIVIA.......................................................................................................33INTERNATIONAL EXPERIENCE IN RELATON TO ACCESS TO JUSTICE...................................37CONSTITUTIONAL PRINCIPLES AND OPTIONS FOR THE CONSTITUENT ASSEMBLY.........39CONSIDERATIONS BEYOND THE CONSTITUTIONAL ASSEMBLY............................................40

6. CLOSING CONSIDERATIONS...........................................................................43

BIBLIOGRAPHY............................................................................................................81

List of Annexes

ANNEX 1.1 - SOCIOECONOMIC INEQUALITIES IN BOLIVIA............................................................47ANNEX 2.1 – FOUR DEFINITIONS OF INDIGENOUS PEOPLES..........................................................55ANNEX 2.2 – RELEVANT ARTICLES OF THE PRESENT CONSTITUTION ON THE INDIGENOUS PEOPLES ISSUE...........................................................................................................................................57ANNEX 2.3 – INCORPORATION OF INDIGENOUS RIGHTS IN BOLIVIAN LEGISLATION...........64ANNEX 2.4 THE SPREAD OF MULTICULTURALISM IN LATIN AMERICA SINCE 1986................65ANNEX 2.5 IADB: ASPECTS OF THE TERRITORIAL RIGHTS OF INDIGENOUS PEOPLES...........67ANNEX 3.1 – INTERNATIONAL EXPERIENCES IN RELATION TO INDIGENOUS TERRITORIES........................................................................................................................................................................68ANNEX 3.2 – DIMENSIONS OF TERRITORIAL RIGHTS IN LATIN AMERICA.................................72ANNEX 4.1 – OIL REVENUE VOLATILITY IN SELECTED COUNTRIES, 1997-2000.......................75ANNEX 4.2. DECENTRALIZATION STRATEGY: POLICY OPTIONS BEYOND THE CONSTITUTION...........................................................................................................................................77ANNEX 5.1. CONSTITUTIONAL ACKNOWLEDGEMENT OF COMMUNITY JUSTICE IN BOLIVIA, PERU, ECUADOR, VENEZUELA AND COLOMBIA............................................................78ANNEX 5.2 – GENDER RIGHTS DIMENSIONS IN LATIN AMERICAN CONSTITUTIONS..............79

List of Boxes

BOX 2.1 FUNDAMENTAL CARACTERISTICS OF INDIGENOUS JUSTICE........................................8BOX 2.2. CONSTITUTIONAL PRINCIPLES RELATED TO INDIGENOUS TERRITORY, BASED ON INTERNATIONAL EXPERIENCE................................................................................................................9BOX 3.1. ALTERNATIVE LAND ACCESS METHODS..........................................................................16BOX 3.2. CONFLICT AND FORESTRY MANAGEMENT SINCE THE 1996 FORESTRY LAW........17BOX 4.1. LESSONS LEARNED OF THE FIRST PHASE OF DECENTRALIZATION (1994-2004)......24BOX 4.2 WHAT ARE AUTONOMIES..........................................................................................................25BOX 4.3. INTERGOVERNMENTAL TRANSFERS: THE LATIN AMERICAN EXPERIENCE............28

List of Tables

TABLE 1.1. INCIDENCE OF POVERTY AND EXTREME POVERTY BY INCOME.............................2TABLE 3.1. THE STATUS OF THE PROCESS OF LAND REGULARIZATION...................................14TABLE 4.1. SUB-NATIONAL TAXES AS A SHARE OF TOTAL TAXES IN SELECTED COUNTRIES IN LAC...................................................................................................................................25TABLE 4.2. INCREASE IN DISPARITIES IN INTERREGIONAL TRANSFERS PRODUCED BY THE HYDROCARBONS LAW OF 2005..............................................................................................................26TABLE 4.4. CONSTITUTIONAL PRINCIPLES AND OPTIONS FOR CONSIDERATION..................30TABLE 5.1. CONSTITUTIONAL PRINCIPLES RELATED TO ACCESS TO JUSTICE, FOR CONSIDERATION BY THE CONSTITUENT ASSEMBLY.....................................................................39TABLE A1.1 CATEGORIES OF MUNICIPALITIES ACCORDING TO POVERTY...............................48TABLE 5.13. PROGRESSIVITY AND SEXUAL AND REPRODUCTIVE RIGHTS..............................80

List of Figures

FIGURE 2.1 LOCATION OF INDIGENOUS PEOPLES IN BOLIVIA........................................................5FIGURE 5.1. PERCEPTION OF LEGAL COMPLIANCE (2005)..............................................................36FIGURE 5.2. SURVEY QUESTION: DO COURTS ACT TRANSPARENTLY AND IMPARTIALLY?36

FOREWORD

This Country Social Analysis (CSA) is the product of a multi-sectoral team of Bolivian, regional and international specialists. The team was led by McDonald Benjamin and included Gregor Barié and Jorge Uquillas (indigenous rights), Malcolm Childress (land and territory), Rémy Prud’homme and Jonas Frank (decentralization), Lisa Bhansali, Julissa Mantilla and Beatriz Perez Perazzo (access to justice), Oscar Antezana and Fernando Jiménez (socioeconomic analysis). Roberto Laserna, Carlos Toranzo and Jose Luis Exeni prepared valuable background papers for this study. The concept was developed with significant contributions from Reidar Kvam, Connie Luff, David Tuchschneider, Ruth Llanos and Jairo Arboleda. The team also drew on valuable insights provided by a range of participants in focus group meetings in Bolivia during 2005-06. Peer reviewers for the study were Andrew Norton, Edgardo Mosqueira, Eduardo Gamarra, Eleodoro Mayorga and Ian Bannon. Estanislao Gacitua-Mario and Shelton Davis provided additional review comments. Alejandra Vucetich, Janice Molina, Lidia Wassertheil and Marcelo Romero translated various portions of the report. Irina Ghobrial processed the final document, and Rocio Recalde provided logistical support.

The team would like to express its particular thanks to the Government of Bolivia for its support in the preparation of this study, and the hope that the analysis may serve as an element of a continuing process of dialogue to strengthen social inclusion and social cohesion in Bolivia.

Funding and technical advice for the preparation and dissemination of the study were provided by the UK Department for International Development (DfID), the Japanese International Cooperation Agency (JICA), and the Swedish International Development Agency (SIDA). Their support is gratefully acknowledged.

The report was produced under the overall guidance of Marcelo Giugale, Country Director for the Bolivia, Ecuador, Peru, Venezuela Country Unit, and Laura Tuck, Sector Director for the Environmentally and Socially Sustainable Development Department in LAC.

The views expressed in this report are exclusively those of the authors.

EXECUTIVE SUMMARY

Introduction

Bolivia has been undergoing a long and at times turbulent process of major social change since the 1952 Revolution. This process resulted in the election of Bolivia’s first indigenous President in December 2005. On 6th August, 2006, a Constituent Assembly met in Sucre to develop a more inclusive and cohesive social contract that will be reflected in a new Constitution by August 2007. For the first time, sectors of the Bolivian population that had previously been excluded will have an opportunity to be associated with the preparation of a new Constitution. At the same time, a referendum was held on July 2, 2006, in which four of Bolivia’s nine departments voted in favor of autonomy. These initiatives represent an important if risk-laden moment in the country’s effort to achieve lasting social change.

Bolivia’s socioeconomic challenges are enormous. It has the lowest average income in South America (US$990/person), one of the highest coefficients of inequality (a Gini of 0.58), and one of the lowest rates of social mobility in the region. A rural Bolivian who is indigenous has a 70 percent chance of living in extreme poverty. Only 2.5 percent of Bolivian land is cultivable, yet 10 percent of farming units control 90 percent of land. Women are twice as likely to be illiterate as men. A baby born in Tarija is three times more likely to live to see its first birthday than a baby born in Oruro. Bolivia’s best hope to redress these imbalances (gas) is instead reinforcing them: hydrocarbon rents range from US$246 per person in Tarija and as much as $470 per person in Pando, but only amount to $16 per person in La Paz.

Bolivia’s historically determined structure of governance and power has perpetuated this inequality and exclusion. It was born with the Toledan “Two Republics” system that stratified society into a privileged minority—seeking rents from silver mining—and a subjugated indigenous majority. Independence did not change the basic structure of society. Instead, a gradual transformation of society was brought on by the creation of a permanent working class in the tin mines; an increased sense of nationalism as a result of the Chaco war (1932-35); the introduction of universal suffrage, agrarian reform and education reform following the 1952 revolution; decentralization and popular participation in the 1990s after the return to democracy in the 1980s, and increasing empowerment of indigenous communities following a historic march to La Paz in 1990. Yet the paternalistic and rent-seeking patterns established by the early elites have persisted to this day, with the difference that a plethora of new actors have joined the political scene with the view that the state should provide for them. This has complicated governability by a state that has not been well placed to aggregate demands into a consensus for social justice. The social conflict has translated into extreme political instability in recent years, with massive mobilizations, and the forced resignation of two presidents from office. Nonetheless there is scope for constructive dialogue in Bolivia, as has been demonstrated in the agreements reached in advancing towards a Constituent Assembly. In order to take advantage of this opportunity, it is important for all groups to be open to a process of dialogue with a view to reaching a consensus on a new, legitimate and long-lasting Constitution.

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In this context, the Bank and its donor partners1 have been invited to provide analytical support on some of the most difficult issues that the country is facing at this time:2 How should Bolivia ensure that the collective rights of its large indigenous population are appropriately reflected and respected in law and in practice? How should the country address issues of access to land and territory in the most equitable and efficient manner? How should resources and responsibilities be assigned between national, sub-national and possibly also indigenous territorial authorities within a cohesive state structure? How should royalties from hydrocarbons be distributed? How should the country ensure access to justice for all of its citizens? The four main chapters of the CSA seek to tackle these issues, as they address: (1) indigenous rights; (2) land and territory; (3) decentralization, including the distribution of rents from hydrocarbons, and (4) access to justice.

Indigenous Rights

An estimated 5.1 million Bolivians are indigenous. They are grouped into 36 distinct indigenous or original peoples. Although they account for as much as 62 percent of the population, it is only in 1994 that Bolivia’s Constitution made a clear break with the past in proclaiming a range of rights for indigenous peoples, thereby beginning the process of establishing a multi-ethnic, pluricultural state.

The rights of indigenous peoples generally fall into three broad categories: culture, territory and autonomy. The current recognition of their cultural rights can still be regarded as a transition to a more complete approach. The challenge at this time is to move from multicultural recognition (multiculturalism), as the affirmation of a historic reality, to a more harmonic and symmetric relationship among cultures (interculturality).

While the territorial rights of indigenous peoples are recognized, they are not very clear at the constitutional level, and their interpretation and application at lower-ranking legislative levels have at times been confusing. Indigenous territorial rights are the basis for any multicultural recognition, since indigenous peoples have a special relationship with their habitats and their survival as peoples often depends on this relationship. Thus greater clarity is warranted in giving real substance to these rights.

The basis for certain rights to self-determination is the constitutional recognition of the legal personality of indigenous peoples. This has led in practice to advances in terms of greater popular participation, the administration of traditional justice and participatory democracy involving indigenous groups, although broadening the scope for self-determination in indigenous territories without isolating the communities from the broader nation remains a key challenge.

The Constituent Assembly might give consideration to emphasizing a core set of cultural, territorial and self-determination rights, drawing on both Bolivian and international experience. These could include, for example, the characterization of Bolivia as a state formed by different individuals and peoples; the principle of indigenous lands as habitats or spaces for cultural continuity; the opportunity to apply various modalities of indigenous lands according to customs (e.g. communal, multi-ethnic, sustainable forests, individual holdings within indigenous districts, among others); the incorporation of indigenous entities within the political-

1 The CSA is jointly financed by the World Bank, the UK Department for International Development (DfID), the Japanese International Cooperation Agency (JICA), and the Swedish International Development Agency (SIDA).2 The Government of Bolivia has furthermore provided extremely valuable comments on the draft CSA in a letter to the World Bank from the Vice Minister of Decentralization, Fabian Yaksic Feraudy, dated December 11, 2006. These comments are reflected below in various annotations and corrections to the document.

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administrative organizational framework for the state, and recognition of traditional justice within a state framework of judicial pluralism that also comprises ordinary justice.

Although it has significant symbolic value, constitutional recognition is only the first step towards a fuller exercise of indigenous rights. These would need to be codified in secondary legislation both via the mainstreaming of indigenous rights in broader legislation (e.g. forestry and education laws) as well as legislation that is specific to indigenous peoples (e.g. to ensure compatibility between indigenous justice and ordinary justice). This is the stage that has been slowest and most irregular in Latin America, as it is subject to political will, political pressures and country circumstances. A key principle beyond the Constituent Assembly is to maintain channels of dialogue without bureaucratizing conflict. It is also essential for indigenous peoples to strengthen their capacity to negotiate common interests with a national perspective and different visions of the state, as well as to strengthen capacity among key non-indigenous actors, for example on indigenous justice within the justice sector.

Land and Territory

Land rights and particularly indigenous land rights have long been a source of social tension in Bolivia. While the land policy framework (1996-2006) aimed appropriately to make land tenure more equitable, secure and sustainable, the implementation of the related INRA Law (No. 1715 of 1996) has fallen short of expectations. There have been successes in land regularization but less progress has been made in improving equity in land distribution. To date the approach to implementing the law has been legalistic and process-driven, which has not proven sufficient or effective. A more fruitful approach may be to guide policy and institutions by specific objectives or results, and to hold institutions accountable for their achievements.

Bolivia faces five central land policy challenges for poverty-reducing growth, social stability and environmental sustainability. These challenges are: (1) completing land regularization and restoring confidence in land institutions, (around 15 percent of lands have been regularized and 30 percent are in process at present;3 (2) regularizing indigenous land (which involves addressing third party claims and implementing a more efficient, transparent and participatory process); (3) resolving demands for land distribution through a range of mechanisms that are driven by objective of increasing access to land for productive but poorer Bolivians (for example, land purchase and leasing programs, improved markets, or equity-sharing enterprises); (4) maintaining the integrity of Protected Areas and Forest Reserves (close to half of Bolivian territory is under forest cover); and (5) improving land taxation, (which could simultaneously increase local government revenues and improve incentives for land owners and speculators to use their land to its maximum productivity or else to release it onto the market).

With regard to indigenous territory, Bolivia’s constitutional basis for recognizing indigenous territory is established. Consideration could usefully be given to international best practices in this area, for example strengthening recognition of indigenous territories as habitats, in order to address the key issues at stake, which are the following: first, the Constitution provides only for the modality of original community lands (TCOs) but this modality, (designed with the lowlands in mind), is incompatible with established land practices and with local territorial-administrative structures in the highlands. Therefore a more flexible approach is

3 During the 1960s-1990s, successive governments made large grants of fertile lands in the eastern lowlands to a relatively small number of political supporters. Several of these donations exceeded 10,000 hectares, which is why it is important to review the regularization of these lands with particular care. This selective assignment of land compares with broad-based land reform in the Altiplano after 1952. Bolivia thus faces major inter-regional differences between the Altiplano and the lowlands, as well as intra-regional inequity in land distribution in the east.

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warranted to address both indigenous titling and territorial administration, based on the principle of community-level decision-making regarding land practices in indigenous communities. The second key issue that might be clarified at the constitutional level is the question of the level of autonomy over natural resources, including mineral and forest resources. Beyond the constitutional level, a range of institutional and legal reforms could usefully be considered to implement the constitutional goals, especially to address third party claims in indigenous areas; overlapping forestry concessions and indigenous land areas; and a reconsideration of the indigenous lands articles of the INRA law to allow duly formed indigenous territorial administrations to determine the nature of the specific land rights to be granted in their territory, whether these be communal, private or otherwise.

Decentralization with Inclusion

Bolivia was a highly centralized nation until 1994, when the first phase of decentralization created municipalities as full-fledged local governments. While this first phase produced several important advances, especially in relation to local participation, the decentralization process could usefully be strengthened, as the quality of services in all sectors is uneven across regions and there are major disparities between urban and rural areas. Improving the coverage and quality of public services is essential to address social disparities in Bolivia.

Bolivia is currently undertaking a second phase of decentralization focused at the departmental level, and faces three serious challenges that will make improvements more conflictive. First, the political election of departmental authorities in 2005 and the transfer of new resources to these authorities under the Hydrocarbons Law without having first defined an appropriate fiscal and administrative framework makes it harder to ensure an efficient use of Bolivia’s limited public resources. Second, responsibilities among government levels are still not well defined and articulated. Third, the inter-governmental fiscal framework does not distribute resources equitably or create incentives for adequate fiscal responsibility in sub-national governments.

Around two-thirds of the additional tax resources to be collected under the 2005 Hydrocarbons Law have been allocated to departments and municipalities. There are two reasons why this might not be an optimal approach. First, oil and gas rents are potentially very large but they are also highly volatile. Municipalities and departments would be much better served by resource flows that are more stable, so that receiving a fixed share of total government revenue, including from hydrocarbons (perhaps with small HC rent grants to producing regions), would be more advisable than receiving a large share of one volatile revenue source. Second, natural resources are rarely evenly distributed across the various jurisdictions of a country, so that the concentration of their revenues in the producing departments will inevitably increase inequality and thereby undermine social cohesion.

Decentralization implies decisions in at least five areas: governance rules, expenditures assignments, taxation, transfers, and borrowing. These choices have consequences in at least four domains, namely political participation, interregional equity, public services efficiency and equity, and macro-economic management. A range of international experiences can be brought to bear in tailoring the decisions (for example, on transfer policies) to maximize the benefits across these domains (for example, enhanced public sector efficiency).

A Constitution is fixed and written for the very long term, whereas decentralization arrangements need to adjust over time. A new Constitution could usefully justify, suggest and facilitate good decentralization policies in relation to governance rules, expenditures assignments,

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taxation, transfers, and borrowing. International experience points to a range of principles in these areas that might be considered in the debate leading to a new Bolivian Constitution. On the other hand, this experience also strongly suggests that it is best to reflect only the broader principles in the Constitution and to leave the details to secondary legislation, as these will have to be more frequently amended and it would not be appropriate to amend the Consitution each time.

The ratification of a new Constitution will certainly imply the need for follow-up actions in the short, medium and long term. These could begin with ensuring adequate implementation capacities and consensus building mechanisms. Other elements might involve a transparent financial management system; civil service management tools; transparent mechanisms for public procurement; mechanisms to monitor and evaluate the quality of public services; improved resource distribution through a restructuring of the transfer system; and basic fiscal responsibility rules. Additional policies over time might focus on separating responsibilities among the national, departmental, and municipal levels to promote more accountability at each level, and transferring additional responsibilities and resources to subnational levels in the longer term, as well as expanding sub-national tax-raising authority. An ideal outcome of implementing such policy options would be increased social inclusion and cohesion via basic equity (or progressiveness) in resource distribution, and the promotion of local governments that are more accountable to the citizens.

Equitable Access to Justice

In a democratic system, the enforceability of rights and freedoms requires a legal and institutional order that ensures the prevalence of the “Rule of Law”. The rule of law is based on three fundamental principles: (1) the limitation of power, effected via the constitutional distribution of powers; (2) the principle of legality, by which government bodies are subject to the law, and (3) the declaration of fundamental rights. The rule of law therefore necessarily places a major responsibility on the judicial system to reach all of the population and to offer a service that is accessible, agile and impartial.

Bolivia has had nineteen Constitutions since 1825. The present Constitution, approved in 1994, has significantly expanded social rights (first established in the 1938 Constitution) with the recognition of indigenous rights within a multi-ethnic, pluricultural state. Moreover it has effectively acknowledged indigenous common law not only as a source of law but as an inherent right in the State, and has thereby also admitted for the first time the existence of organs with rule-of-law powers other than the three traditional branches (legislative, executive and judicial).

The structure of the Judicial Branch was strengthened after 1994, in an effort to make judicial services more efficient and independent, for example by the creation of a Constitutional Tribunal, Ombudsman and a Judiciary Council. Other changes since 1994 have included modified procedures for appointing Supreme Court justices and reforms in the penal code to incorporate a system for accusations and oral arguments, so as to speed up processes.

In spite of the reforms and modifications implemented, and some successes, Bolivians continue to face obstacles in securing accessible, agile and impartial justice. The challenges are reflected in inadequate services, insufficient economic resources for justice and the police, delays in judicial proceedings, and a perceived lack of independence and transparency of the justice sector. The broader challenges in access to justice are aggravated by discrimination, for example on the basis of gender and ethnicity.

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A range of constitutional principles emerge from Bolivian and international experience for consideration by the Constituent Assembly. These principles fall into four main areas: strengthening of the judicial system and the rule of law so as to ensure improved access to ordinary justice for all citizens; recognition of traditional community justice in the Constitution; strengthening of gender equity in access to justice; and consolidation of human rights via principles of equality and non-discrimination.

Enhancing the reliability and efficiency of the ordinary justice system is also a clear priority beyond the Constituent Assembly, in order to improve social inclusion via better access to justice. Again, international experience offers a series of lessons in legal and judicial reforms to strengthen access to ordinary justice that present a range of options for consideration by Bolivians. In order to ensure the integration of ancestral justice within the framework of the rule of law, a favored option would be the approval of a coordination law on this matter, developed in a highly participatory manner. In relation to gender perspectives, the key challenge is not so much the approval of new legislation as the enforcement of existing legislation, as well as capacity building and oversight of justice sector practitioners, in both the ordinary justice and indigenous justice sectors, so as to ensure equal rights for both men and women.

Closing Considerations

This Country Social Analysis has attempted to provide an understanding of selected key challenges facing Bolivia, looking to their roots in the history and institutional structure of the country to derive a series of findings for consideration.

The social exclusion and absence of social cohesion observed in present-day Bolivia have their roots in Bolivia’s colonial history.

While the country’s institutional transformation has been substantial over time, it is still incomplete.

The colonial era also gave rise to paternalist and rent-seeking perspectives in relation to the state that are still prevalent today and that make it harder to achieve social inclusion and cohesion.

The challenge is to forge a truly democratic state characterized by good governance that promotes equal opportunities and therefore greater social mobility for its people.

The initiatives of a Constituent Assembly and referendum on autonomy, when set against Bolivia’s historical backdrop of conflict and social exclusion, represents an important if risk-laden moment in the country’s effort to achieve lasting social change. It is in this scenario of complex political differences that an open dialogue in the context of the Assembly will be essential to reaching a national consensus that manifests itself in a new, legitimate, and long-lasting Constitution.

The work of the Constituent Assembly could usefully maintain as a guiding principle the promotion of increasing equality of opportunity and the rule of law, even—and indeed especially—in areas in which consensus may be difficult to achieve, such as decentralization.

While the process of establishing a new social contract is a profoundly Bolivian process, there is a role for the international community to play in supporting the process and its

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aftermath, so as to help Bolivians set the foundations for a dignified, just and productive Bolivia.

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1. INTRODUCTION

Bolivia has been undergoing a long and at times turbulent process of major social change since the 1952 Revolution. This resulted in the election of Bolivia’s first indigenous President in December 2005. On 6th August, 2006, a Constituent Assembly met in Sucre to develop a more inclusive and cohesive social contract that will be reflected in a new Constitution by August 2007. Previously excluded sections of the Bolivian population will have an opportunity for the first time to be associated with the preparation of a new Constitution. In this context, a referendum was held on July 2, 2006 in which four of the nine departments of the country voted in favor of autonomy. These two initiatives represent an important if risk-laden moment in the country’s effort to achieve lasting social change.

Bolivia’s geography and demography are important in explaining its economic development. The country has significant but unevenly distributed resources, especially mining and hydrocarbons, whose location has driven the location of centers of wealth and power throughout history. Bolivia’s terrain and land-locked position also result in large inequalities in access to transport that militate against rapid growth and equitable development and complicate national cohesion. Bolivia has a young and rapidly growing population that is urbanizing rapidly, and migrating to the lowlands in search of fertile lands and jobs, thereby changing the social and political landscape of the country. Moreover, while Bolivia has the highest proportion of indigenous to total population in the Americas, it faces a continuous process of racial mixing, at the same time that indigenous practices and perspectives are spreading within the country’s social institutions.4

Bolivia’s cultural history also helps to explain its current social exclusion.5 The Toledan “Two Republics” system, established at the beginning of the colonial era to create an efficient system for exploiting silver from the mines in Potosi, stratified society into a privileged, rent-seeking minority and a subjugated indigenous majority. The key institutions used to maintain this structure and impede virtually all social mobility included geographic segregation along ethnic lines, forced labor and indentured service systems such as the mita and the yanaconaje, limitation of citizenship to a privileged oligarchy of Spanish origin, restriction of education to the privileged few, heavy taxation of indigenous people, co-opting of indigenous caciques in the system, and military repression.

Independence brought turbulence but did not change the basic structure of society. The land grabs, repeated coups and frequent constitutional reforms (including the first one immediately after Bolívar left the country in 1826), form the historical backdrop to the relatively weak institutionality in modern-day Bolivia and to the less than fully rooted support for private property rights. A gradual transformation of society was brought on by the creation of a permanent working class in the tin mines, the increased national consciousness brought on by indigenous and non-indigenous Bolivians fighting alongside each other in the Chaco war (1932-35), the introduction of universal suffrage, agrarian reform and education reform following the

4 See: David Tuchschneider: Promoviendo la inclusión social de los pueblos indígenas, World Bank Policy Notes for Bolivia, March 2006.5 See Roberto Laserna et al.: Rentismo y conflicto social en Bolivia, Background Paper for the Bolivia CSA, September 2005. DfID support for this paper is gratefully acknowledged. Also see The Library of Congress, Federal Research Division: “Bolivia: A Country Study.” Library of Congress, 1989.

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1952 revolution, decentralization and popular participation in the 1990s following the return to democracy in the 1980s, and increasing empowerment of indigenous communities following a historic march to La Paz in 1990. Thus a historical perspective illustrates the scope of the country’s political evolution from “Two Republics” to a “multi-ethnic, pluricultural” democracy with the 1994 Constitution.

Bolivia’s socioeconomic challenges are enormous.6 At US$990/person, real GDP per person for average Bolivians today is the same as it was for their grandparents in the 1950s. Much of that income is in relatively few hands. And Bolivia, with some of the highest income inequality in the region (a Gini coefficient of 0.58), is also one of the countries with the lowest social mobility in the region—meaning that those born poor are very likely to remain poor.7 One in five Bolivians does not formally exist for the state—since they were never registered at birth. 8

A rural Bolivian who is indigenous has a 70 percent chance of living in extreme poverty (see Table 1.1). Only 2.5 percent of Bolivian land is cultivable, yet 10 percent of farming units control 90 percent of land. The 2001 census shows one in three rural households living in poor quality dwellings. Credit per capita is 50 times higher in Santa Cruz than in Potosí. Women are twice as likely to be illiterate as men. The average indigenous person earns 27 percent less than his or her non-indigenous counterpart with the same level of education. A baby born in Tarija is three times more likely to live to see its first birthday than a baby born in Oruro. Bolivia’s best hope to redress these imbalances (gas) is instead reinforcing them: hydrocarbon rents range from US$246 per person in Tarija and as much as $470 per person in Pando, but only amount to $16 per person in La Paz.

Table 1.1. Incidence of Poverty and Extreme Poverty by Income (Percent)

PopulationIncidence of Poverty (%) Incidence of Extreme Poverty (%)

Total Indigenous Non- Indigenous Total Indigenous Non-

IndigenousNacional 63,1 73,9 52,5 39,5 52,5 26,9Urbano 51,5 59,1 47,3 23,9 29,9 20,6Rural 82,8 86,3 73,6 66,2 71,6 52,1Department Capitals 48,6 56,8 44,0 22,2 28,6 18,7

Source: Hall y Patrinos (2006).

Bolivia’s historically determined structure of governance and power has perpetuated this inequality and exclusion.9 Elite capture of all three branches of a highly centralized state facilitated rent-seeking and preferential assignment of state resources. The state’s pervasive historic role meant that organized interaction with the state was essential, including among rival elites. This inevitably implied weak governance, i.e. weak accountability to the broad citizenry and weak reflection of its interests, as well as the inequitable application of formal rules. With the rise of union power through the growth of mining and of the state bureaucracy, new actors joined the political scene in the early 19th century with the same perspective that the state should provide for them. Indeed, a common view of the state in Bolivia even today is that of a father figure, and the great provider and guarantor of jobs and subsidies—public goods are associated

6 See The World Bank: Poverty Assessment, 2005, The World Bank: Public Expenditure Review, 2004, or The World Bank: Policy Notes for Bolivia, 2006.7 See Lykke Anderson: Low Social Mobility in Bolivia: Causes and Consequences for Development, Kiel Institute of World Economics, Working Paper No. 1064, May 2001. 8 See the Interamerican Development Bank 2006: Ocultos a plena vista: ciudadanos indocumentados en América Latina, IDEA series, January-April.9 See Roberto Laserna et al.: ibid.

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with free goods.10 Poor willingness to pay and high expectations of support suggest that paternalism and rent-seeking may be cultural legacies of Bolivia’s early history.11

The political structure of society has become significantly more complex over time.12

The decline of mining and its central workers’ union (COB) and the advent of democracy in the 1980s created the space for a plethora of alternative civil society organizations to emerge, including indigenous organizations, workers’ unions and guilds, trade associations, civic organizations, neighborhood organizations, and NGOs around gender and other issues. This plethora of corporate organizations making demands on the state represents a historic manifestation of citizen voice, however it has also complicated governability and charting a clear course for the nation, especially since many of the new social movements have less of a trajectory in negotiating, and since the formal structure of the state has not been well placed to aggregate demands into a consensus for social justice. In this environment, with countervailing demands for particular privileges (that often build on existing concessions that made the group powerful), it is very difficult to resolve questions of distributions peacefully unless there is a clear and widely recognized source of impartial moral leadership that can build a consensus around an equitable assignment of resources and responsibilities.

Conflict is inevitable in any society, and has turned violent in Bolivia in recent years, even though the country has considerable potential for dialogue. In socially cohesive countries, conflict is usually channeled through established political institutional channels (e.g. via the legislature or litigation in courts). In recent years in Bolivia, social conflict has translated into extreme political instability, with a sharp increase in strikes, blockades and massive mobilizations, and the forced resignation of two presidents from office.13 Notwithstanding the rise in conflict, there is scope for constructive dialogue in Bolivia, as has been demonstrated in popular participation at the local level, national dialogues, and the agreements reached in proceeding towards a Constituent Assembly. On the other hand, it is essential to sustain these efforts at dialogue within the context of the Constitutional Assembly in order to take advantage of the opportunities presented by this situation and minimize the risks associated with the changes taking place. The government’s vision for this process is “a political and social process launched to reconstruct the social contract in Bolivia and to create a new national vision that is inclusive and highly democratic, and that promotes a space for meeting and reconciliation among Bolivians.”14

In this context, the Bank and its donor partners15 have been invited to provide analytical support on some of the most difficult issues that the country is facing at this time : how should Bolivia ensure that the collective rights of its large indigenous population are appropriately reflected and respected in law and in practice? How should the country address 10 See the World Bank’s Institutional and Governance Review for Bolivia (2000) on patronage and the state.11 In its comments on the CSA, the Government has noted that low credibility of public institutions resulting from corrupt administration has also undermined willingness to pay taxes, and that there is a direct relationship between the tax culture, transparency and development. In the view of the Government, civil society’s rent-seeking culture was also spurred by a paternalist model supported by international donors in the absence of clear public policies at the time.12 See Carlos Toranzo and Jose Luis Exeni: Empoderamiento, participación e instituciones en Bolivia, Background Paper for the Bolivia CSA, September 2005, prepared with DfID support that is gratefully acknowledged.13 In its comments on the CSA, the Government expressed the view that social cohesion was undermined by the imposition of a free market economic model, supported by international donors, that could not respond to the needs and conditions of Bolivians and that deepened the economic divides in the country. Moreover, the Government noted the persistence of certain divisions and racism along the lines of the Toledan society even in the 21st century.14 This is the objective of the Presidential Representation to the Constituent Assembly and the Referendum on Autonomy. Also see Garcia Linera (2004).15 The CSA is jointly financed by the World Bank, the UK Department for International Development (DfID), the Japanese International Cooperation Agency (JICA), and the Swedish International Development Agency (SIDA).

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issues of access to land and territory in the most equitable and efficient manner? How should resources and responsibilities be assigned between national, sub-national and possibly also indigenous territorial authorities within a cohesive state structure? How should royalties from hydrocarbons be distributed? How should the country ensure access to justice for all of its citizens? The four main chapters of the CSA seek to address these questions.

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2. INDIGENOUS RIGHTS

INTRODUCTION

Almost ten percent of the population of Latin America is indigenous. According to Convention 169 of the International Labor Organization Concerning Indigenous and Tribal Peoples, an indigenous individual is someone who is acknowledged by his/her community and who considers him/herself as such (Article 1, 1989).16 Thus “Indigenous Peoples” is an approximate concept in international law, based on self-attribution and self-identification (see Annex 2.1. for definitions of “Indigenous Peoples”). According to this concept, there are an estimated 650 distinct indigenous peoples in the region, with a total population of 43 million. One out of every eight of them is Bolivian (see Figure 2.1, which shows the location of indigenous peoples in Bolivia).17

Figure 2.1 Location of Indigenous Peoples in Bolivia

Source: Ministry of Peasant Affairs, Indigenous and First Peoples, (MACPIO), 2002

Indigenous peoples are protected under a range of international agreements. These include the Universal Declaration (Art. 7 and 17, 1948), the International Convention on the Elimination of All Forms of Racial Discrimination (Art. 5, 1965), the International Covenant on Civil and Political Rights (Art. 27, 1966), the International Labor Organization Convention 169 (1989), the Convention on the Rights of the Child (1989), the Convention on Biological Diversity

16 Bolivia ratified the Convention via Law No. 1257 on July 11, 1991.17 Unlike elsewhere in LAC, Bolivia’s 5.1 million indigenous population, who are members of 36 distinct indigenous or original peoples, account for the majority of the population (62 percent based on self-identification, or 53 percent based on the language spoken- see Tuchschneider 2006). This note abstracts from the rich cultural differences among indigenous peoples to focus on their common challenges and rights.

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(1992) and the Indigenous Peoples Fund for the Development of the Native Peoples of Latin America and the Caribbean (1992).

The rights of indigenous peoples generally fall into three broad categories: culture, territory and autonomy. Cultural rights refer to the recognition of the multicultural character of a nation, its historic cultural diversity and differentiated identities, and rights to bilingual/intercultural education. Territorial rights are based on the recognition of the special relationship that indigenous peoples have with their habitats, and include rights to collective ownership of, and to the protection of, these habitats. Rights to self-determination recognize indigenous forms of government, and the right to establish their own special justice based on traditional practices, and to participate in decision-making regarding issues of relevance to them.

INDIGENOUS RIGHTS IN BOLIVIA

Indigenous peoples are mentioned in five articles of the 1994 Bolivian Constitution and in more than 100 Bolivian laws, supreme decrees and directives. Article 1 of the current Bolivian Constitution characterizes the country as “multi-ethnic and pluricultural, constituted as a unified republic.” This represents a major departure from the past, as indigenous peoples had only been mentioned once, in the 1938 Constitution. Indeed, the 1994 Constitution refers specifically to indigenous peoples in various articles (see Annex 2.2).18 Nonetheless the rights must be examined in the constitutional context, considering the internal hierarchy. For example, the state’s traditional control over the land and the subsoil (Art. 136) as well as the possibility of expropriation for public use (Art. 22) can contradict the protection of native community lands (Art. 171). The constitutional provisions are also complemented by more than 100 laws, supreme decrees and directives that specifically refer to indigenous issues and consolidate multi-cultural approaches, including for example the laws of Popular Participation (1994), Educational Reform (1994), Agrarian Reform (INRA, 1996), Municipalities (1999) and Civic Associations and Indigenous Peoples (2004). Annex 2.3 indicates the extent of the filtration of indigenous rights in Bolivia’s legislation.

The proclamation of cultural rights in the Bolivian Constitution breaks with the silence of the past, but must still be regarded as a transition to a more complete approach. The existence of indigenous peoples in Bolivia (also known in some cases as first or original peoples), had been almost totally concealed after the 1952 Revolution by the use of ambiguous concepts like “rural worker” or comunero (member of a commune).19 The 1994 Constitution guarantees the legal personality of indigenous peoples (Art. 171, II), which is fundamental for acting legally as a collective entity. On the other hand, basic concepts such as elements for a definition of indigenous peoples, cultural promotion (not just recognition and protection), official languages and intercultural bilingual education were relegated to secondary legislation. The recognition of the “social, economic and cultural rights of indigenous peoples” (Art. 171, I), which are individual rights established in the International Pact on Economic, Social and Cultural Rights (1966), is not formulated in terms of acknowledging differential aspects to those rights for indigenous peoples.20 In addition, the frequent use of the concept of “rural workers”, the

18 Articles 61, 222, 223 and 224 refer to the rights of indigenous peoples to present candidates for office, and Article 171 recognizes their social, economic and cultural rights.19 “The state attempted to construct a homogenous society in a society that was essentially heterogeneous. In the new constitutional text, the state acknowledges the social reality of Bolivia, which goes way back,” (Jost et al, 2003: 17).20 Valcarce (2004) states: “There is no sense in acknowledging the rights to social security, work, health, education, etc., without offering a special, distinctive connotation for the indigenous peoples. Keep in mind that these human rights have already been recognized for all Bolivians, both indigenous and non-indigenous.”

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establishment of an official religion (Art. 3) and a “national culture” (Art. 192), suggest that the constitutional tradition of nationalism still prevails, and the different cultures do not appear in the same conditions and are not equally valued. Nevertheless the 1994 reform has fulfilled a fundamental role in terms of the transition of a state that considered itself to be homogenous (structured only on social classes) to a state made up of different cultures and worldviews. 21 The constitutional challenge is now to move from multicultural recognition (multiculturalism) as the affirmation of a historic reality to a more harmonic and symmetrical relationship among cultures (interculturality).

Indigenous territorial rights are the basis for any multicultural recognition, since indigenous peoples have a special relationship with their environment and their survival as peoples often depends on this relationship.22 These issues are taken up more fully in the next Section on Land and Territory, however it is worth noting here that, while significant progress has been made in titling original community lands (Territorios Comunitarios de Origen—TCOs), the territorial rights of indigenous peoples are not very clear at the constitutional level, and their interpretation and application at lower-ranking legislative levels has at times been confusing. Strategic issues like the use of the soil and subsoil, participation in the exploitation of strategic resources, and the inalienable character of the TCOs were relegated to the INRA Law and others, while the linkages between TCOs and municipalities have not been adequately addressed in law. Moreover, there have been significant practical challenges in relation to the juxtaposition of protected areas or forests with indigenous settlements, illegal invasions of TCOs, the incompatibility of the TCO model with traditional land rights practices in the Altiplano, and the ineffectiveness of the National and Departmental Agrarian Commissions in resolving disputes.23

Indigenous people gained certain rights to self-determination as a result of the 1994 Constitution. The constitutional recognition of the legal personality of indigenous peoples provides the basis for certain rights to self-determination founded on three key points: popular participation, the administration of justice and participatory democracy. These rights should not be seen as extending to the level of formal autonomy (as for example in the case of municipal autonomy). Instead, they involve a limited and not always explicitly clarified faculty for governing through indigenous authorities and customs, including justice, and the possibility of collective representation in certain state proceedings. For example, the Popular Participation Law of 1994 provides for the creation of Basic Territorial Organizations (OTBs) among indigenous and rural communities, as well as Indigenous Municipal Districts within a given municipality, each of which is represented by an indigenous vice-mayor. In the area of traditional justice (see Box 2.1), constitutional primacy has been established in Bolivia even in the absence of specific

21 Significant practical advances have also been made in terms of cultural rights, including the recognition of Quechua and Aymara as official languages in 2000 (Decree No. 25.894), the revival of ethnic identities and the symbolic recovery of their value in terms of public opinion, the consolidation of indigenous organizations and their recognition as entities capable of negotiating with the state, the promotion of state policies that favor indigenous peoples via different departments and ministries, especially the Ministry of Rural, Agricultural and Environmental Development, and educational reforms that are promoting the recovery and study of indigenous languages and boosting the self-esteem of indigenous children. “In terms of bilingual education, we are on the cutting edge in Latin America. Now we must advance on intercultural development as a two-way street, an understanding between the dominant culture and indigenous cultures,” (interview with Marisol Quiroga, former Minister of Education from 2004-2005).22 Rodolfo Stavenhagen, United Nation rapporteur, states: “…the group formed by the land, the territory and the resources constitutes a question of essential human rights for the survival of indigenous peoples,” (Stavenhagen, 2002).23 “The rights of the TCOs in terms of exploiting the resources of the subsoil are minimal. The commercial use of renewable resources, be this traditional use or large-scale exploitation, are subject to the Forestry Law. The TCOs have not been given a clear legal status in the state’s governmental structure and thus they are not given the capability to pursue their own development policies,” (Hoekema and Assies, 1999: 427).

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legislation,24 and such coordinating legislation would be highly recommendable to integrate community justice into a broader justice framework involving ordinary justice. Moreover, the Constitutional Tribunal has ruled in favor of community justice on several occasions. Finally, the 1994 Constitution extended representation in all voting spheres (constitutional, national, uninominal district and municipal levels) beyond political parties to include civic groups and indigenous peoples, and acknowledges their “uses and customs as legitimate legal bases for the nomination of candidates” (Art. 1 and 26, Law on Civic and Indigenous Groups, 2004).

Box 2.1 Fundamental Caracteristics of Indigenous Justice

Indigenous justice has not yet been studied and ordered sufficiently, however certain basic principles can be identified that operate consistently albeit invisibly in any process of administration of indigenous justice (see Barié, 2005): 1. Integrality: when analyzing conflicts, not only are the facts of the case at hand reviewed, but also the background, family and personal antecedents. 2. Public and community considerations: the community plays an important role since conflictive matters are presented and discussed in a general meeting or assembly. The absolution and compensation process happens in front of everybody, which gives it more value and sustainability. 3. Harmony and equilibrium: reestablishing harmony, rather than meting punishment, is the ultimate goal of justice.4. Orality and speed: the process of administration of justice is generally oral and not written, even though when an agreement is reached there may be documentary evidence and a public ritual. The procedure is very fast when compared with any ordinary trial. 5. Reconciliation: communitary justice underscores the importance of reconciliation and the re-establishment of the relationship between the parties (if possible). 6. Restitution: the delinquent must pay restitution for the damage caused, for example by returning stolen cattle.7. Dynamism: The fact that indigenous law is not codified and has a strong oral tradition means that it is dynamic and adapts to all situations. There is no concept of “pending matters due to lack of legislation”.

INTERNATIONAL EXPERIENCE REGARDING INDIGENOUS RIGHTS

There has been growing international recognition of indigenous cultural and territorial rights across the region, offering a range of options for Bolivians to consider. One feature that is common across countries is that cultural rights are based on the recognition of the existence of multiple ethnic identities in a pluricultural nation (see Annex 2.4). This concept, which has a declarative purpose (occasionally combined with the recognition that indigenous peoples predate the formation of the state), yields other cultural rights, such as the promotion of indigenous peoples as a collectivity, official recognition of minority languages, and bilingual/intercultural education. For example, the Mexican Constitution affirms the “pluricultural composition of the nation” (Art. 2), whereas Venezuela’s Constitution seeks the “promotion and consolidation of their culture” (Art. 121), exemplifying the difference between a mere affirmation and more proactive action. Colombia, Ecuador, Nicaragua, Peru and Venezuela define the official languages in their Constitutions. Brazil offers a coherent example of treatment of bilingual education (Art. 210, 2), while Ecuador’s Constitution indicates that the state promotes “interculturality, which shall inspire its policies and integrate its institutions according

24 “The principles, guarantees and rights acknowledged by the Constitution cannot be altered by laws that regulate the exercise of these rights or which require previous directives to ensure their fulfillment,” (Art. 229).

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to the principles of equality among cultures,” (Art. 62). In the area of territories, Box 2.2. and Annex 2.5. summarize the international experience.

International experience reveals increasing attention to indigenous rights to self-determination at the constitutional level in the region. The term “autonomy” is used in the Constitutions of Nicaragua (Art. 175) and of Peru, which states: “Rural and native communities are autonomous in terms of their organizations, their community work and in the use and exploitation of their lands, as well as in economic and administrative terms, within the limits established by law” (Art. 89). Strong features of autonomy are also found in the Colombian Constitution, where indigenous territories are entities with functions and competencies that are identical to those of the other political-government units (Art. 329). In Ecuador, there are indigenous territorial districts (Art. 224), while the Constitution of Venezuela acknowledged indigenous towns (Art. 169). In Paraguay, indigenous peoples have the right “to freely apply their systems of political, social, economic, cultural and religious organization.” (Art. 63).25 Box 2.2. Constitutional Principles related to Indigenous Territory, based on International Experience

The most advanced Constitutions conceive of indigenous lands as territories or habitats. For example, in Venezuela, the state relates the habitat to the survival of indigenous peoples, recognizing original rights over lands they traditionally occupy and which are needed to develop and guarantee their way of life (Art. 119).26

The security of tenure and special protection of these possessions is reflected in their inalienable, imprescriptible and un-mortgageable nature: they cannot be sold, occupied illegally or embargoed by virtue of debts. Moreover the forced transfer or resettlement of indigenous peoples by virtue of expropriation is prohibited.

The spatial notion of indigenous lands is important, e.g. Brazil’s Constitution (Art. 231) provides a broad definition of indigenous lands, comprising lands that are occupied, used for activities and necessary for well-being and cultural survival. In other countries, the constitutional framework allows for the possibility of expanding the territorial area based on historical and not just present settlement.

A process for delimiting and physical demarcation is essential, together with registration in the cadastre, and regularization (clarification of rights to title), in order to guarantee effective protection.

Some Constitutions recognize the symbolic or religious value of the cultural patrimony of indigenous peoples, such as sacred places and temples.

Another important dimension is related to the use of both renewable and non-renewable resources . The usual legal formula maintains the rights of the state to that which is below the land surface, while recognizing consultation and participation mechanisms in extraction programs.

Protection of intellectual property rights over biodiversity and genetic resources is a new theme that appears in some cases, inspired primarily by the Biodiversity Convention (1992).

25 Barie (2003) refers to other important principles in certain countries, like the recognition of rights for indigenous peoples irrespective of where they reside, and modalities of representation of indigenous communities in national institutions.26 For example: “traditionally occupied lands” (Argentina, Art. 75, 17 and Brazil, Art. 231, 1); “original community lands” (Bolivia, Art. 171); “community lands of ethnic groups, indigenous territories, reserves” (Colombia, Arts. 63, 286 and 329); “community lands” (Ecuador, Art. 82, 2); “historical lands of indigenous communities” (Guatemala, Art. 67), property of the Amerindians (Guyana, Art. 142, 2i); “lands of indigenous groups” (México, Art. 27, VII); “lands of the communities of the Atlantic coast, communal lands” (Nicaragua, Art. 89); “collective property of indigenous communities” (Panama, Art. 123); “habitat and community property” (Paraguay, Arts. 63 and 64); “lands of native and peasant communities” (Peru, Art. 89); “habitat, lands that indigenous peoples and communities occupy ancestrally and traditionally” (Venezuela, Art. 119).

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Although it has significant symbolic value, constitutional recognition is only the first step towards a fuller exercise of indigenous rights. Indigenous movements frequently refer to the Constitutions as a basis for defending their rights and opening up the possibility of these rights being reproduced and extended through legislation. In practice, the transformation of constitutional ideals into secondary legislation has been slow and irregular in Latin America, as it is subject to political will, political pressures and country circumstances; indeed a common experience has been the delay of indigenous rights legislation in Congresses. From the abstract concept of the right to an identity to the realization of self-determined well-being of the peoples, there is a long path to tread that involves overcoming barriers such as awareness and mobilizing civil society, active participation in state reforms, making indigenous rights constitutional, and transforming the relevant legislation and the will of public officials, among others. These are steps that are generally built slowly—although Constituent Assemblies offer moments of unequalled opportunity to achieve important steps forward—and involve evaluation of indigenous versus state or non-indigenous rights, as well as balancing legitimate differing interests.27 In addition, they require the search for autonomy modalities that assure articulation rather than separation within the State.

CONSTITUTIONAL PRINCIPLES AND OPTIONS FOR THE CONSTITUENT ASSEMBLY

The search for a just equilibrium between several valid perspectives is one of the most important principles for the incorporation of indigenous rights in the Constitution. First and foremost, it should be understood that the Constitution is not a panacea and cannot drastically change reality, although it can provide general framework and a number of rules of the game that require further attention. The principles developed by the Bolivian Constituent Assembly could on the one hand help to recognize the country’s distinct reality where indigenous peoples are not national minorities but historical peoples that were systematically excluded, and on the other hand can take advantage of lessons from other countries that can help to identify options, deepen reflection, and enhance the final proposal. A third, very important principle to manage expectations is that the process should recognize that there are no absolute rights. Indigenous people’s rights are not absolute; rather, they are embedded in and limited by the general framework of the Constitution and by the rights of other groups or individuals. There will need to be a judicious balance between indigenous rights and broader human rights, as well as a profound reflection on the responsibilities that accompany those rights. A fourth, essential balance is between indigenous people’s rights as individuals and their collective rights. An approach focusing solely on rights of individual indigenous people may in practice have detrimental effects, while excessive collective rights may violate the rights of others, e.g. internal minorities or women. Finally, indigenous territorial self-government (autonomy) will need to be balanced against broader interests. Autonomy implies a legal and contractual relationship between indigenous peoples and the State, without allowing for absolute freedom and self-determination. Self-determination principles should also consider the presence of non-indigenous population, or of multiple indigenous identities, in multicultural areas.

27 One example of the trade-offs involved includes credit. Loans secured by mortgaged property are among the most secure private loans that can be made and therefore involve larger amounts and lower interest rates than e.g. unsecured loans. By preventing liens on indigenous lands, the law also removes this form of financing for indigenous communities, reducing access and increasing the cost of credit. In this context, a blend of modes of land tenancy or reliance on principles of micro-finance (including mutual guarantees and character-based lending) or on warehouse receipts financing offer alternatives that permit compromises between collective land tenure and access to finance.

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In terms of content, the Constituent Assembly might give consideration to emphasizing a core set of cultural, territorial and self-determination rights that will allow for the strengthening of interculturality. Among the most important cultural rights that warrant inclusion as constitutional principles are: the characterization of Bolivia as a state formed by different people and peoples; recognition and support for different languages, intercultural education and bilingual education.28 With regard to territorial rights, it would be helpful to give due consideration to the principle of indigenous lands as habitats or spaces for cultural continuity and to follow the most advanced examples in Latin American Constitutions and international legislation (collective titling of lands that are inalienable, imprescriptible and not subject to embargo; rights to timely, informed consultation; distinction between renewable and non-renewable resources with participation in gains from the extraction of the latter—see the Chapter on Decentralization on the distribution of hydrocarbons rents). As an original contribution drawn from Bolivian experience, the modern international law approach to territorial rights could be complemented by support for flexible and proven mechanisms of conflict resolution with non-indigenous stakeholders, and allow for various modalities of indigenous lands according to customs (e.g. communal, multi-ethnic, sustainable forests, individual holdings within indigenous districts, etc.). The key autonomy rights that warrant due consideration at the constitutional level are related to opportunities for representation and self-determination, and the incorporation of indigenous entities within the political-administrative organizational framework for the state. This includes recognition of traditional justice within a state framework of judicial pluralism that also comprises ordinary justice (see the Chapter on Access to Justice).

CONSIDERATIONS BEYOND THE CONSTITUENT ASSEMBLY

A new Constitution is likely to yield new state policies that will need to be reflected in secondary legislation beyond the Constituent Assembly. There is little comparative international analysis of the development of secondary legislation related to indigenous peoples. Generally the codification of indigenous rights has been driven primarily by specific social and political factors—for example, one-off responses to events or conflicts—rather than by strict adherence to classical doctrines on legal hierarchy.

The codification of indigenous rights should occur both in broader legislation that mainstreams indigenous rights as well as in legislation that is specific to indigenous peoples. Systematic and organic inclusion of indigenous rights in general legislation (such as education and forestry laws) is in most cases preferable to separate legislation, although the latter may also be required (and examples include Panama’s 2000 Law on indigenous intellectual property rights or Venezuela’s 2000 Law on demarcating and guaranteeing indigenous habitats).29 It would be helpful to coordinate the codification of legal reforms by related themes (for example processing laws on forestry, biodiversity, environment and natural resources as a group) to allow for systematic review of these areas. Framework legislation that coordinates and articulates laws has also been used in the region. Below the level of legislation, there may also be important decrees that affect indigenous rights (as in a 2002 Brazilian decree, regulating police and military activity in indigenous areas of Brazil).

28 Cultural recognition could take into account the fact that Bolivia has a small Afrobolivian population that is largely settled in the yungas of the La Paz Department. Regional Constitutions have explicitly recognized Afrodescendants on a par with indigenous peoples (e.g. in Venezuela, Colombia, Ecuador and Peru); this perspective could be considered in the new Bolivian Constitution.29 See the Chapter on Equitable Access to Justice for principles related to traditional indigenous justice.

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It is essential for indigenous peoples to strengthen their capacity to negotiate common interests with a national perspective and a focus and exchange on different visions of the state. There are various non-government organizations in Bolivia with capacity and expertise in negotiation skills and consensus building. Following the Constituent Assembly, it will be important for civil society organizations to actively accompany the process of converting the new Constitution into state policies. The media will need to play a critical role at this stage in promoting transparency and disclosure of information. Capacity building should also include key non-indigenous actors, e.g. members of the judicial sector who may be called upon to facilitate the transition to a pluralistic system of justice, which Latin American experience suggests may be strongly resisted.

A key principle beyond the Constituent Assembly is to maintain channels of dialogue without bureaucratizing conflict. This would require a public policy that ensures continuous spaces for consultation and participatory planning, instead of sending the most relevant ministry or agency to fix problems ex post. This could take on added importance at the departmental level if the decentralization process is strengthened in the new Constitution.

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3. LAND AND TERRITORY

INTRODUCTION

Even though Bolivia is a large country (almost three times the size of Germany), cultivable lands are limited and their distribution is highly unequal. Of a total of 109 million hectares, almost half is covered by forests, and one third is semi-desertic or arid. Only eight million hectares can be clasified as potentially productive for agriculture, out of which only about 2.5 million hectares have ever been used for cultivation. Almost 10 percent of the existing agricultural units (almost 60,000 units)30 control 90 percent of agricultural territory. The distribution also varies from the lowlands where medium and large farms are predominant, to highlands and valleys where small units are the norm. The majority of the families in the Altiplano are considered indigenous and live in comunities that have some type of indigenous territorial administration. At a national level, land claims have been made under the current legal framework for almost 21 million hectares, most of them forest areas.

Land rights and particularly indigenous land rights have long been a source of social tension in Bolivia. The same is true today, as the unequal distribution of land and capital in the fertile and expansive lowlands, segmented and exclusive land markets, the problematic management of forests and indigenous territories, and a scarcity of arable land and poor connections to market in the densely populated highlands, keep employment low in rural areas and perpetuate rural poverty. This continues to drives migration to urban areas, which also fail to provide quality employment, and fuels ecological deterioration and social conflict. Since Bolivia’s economy is highly land- and resource-based, concerted and sustained attention to land and land-based resources (i.e., soils, forests) is essential to turn these into means of reducing poverty in lieu of sources of conflict. To this end, the Government has pledged to undertake a new era of land reform and rural development, and in May 2006 it launched a program of five new sub-decrees focused on revitalizing the stagnant land redistribution process. In addition, the Congress approved a revision to the Agrarian Reform Law (Law No. 1715, known as the INRA Law) in November 2006, with the goal of promoting a more productive and equitable use of lands that are unproductive or were appropriated illegally.

LAND

The land policy framework of 1996-2006 aimed appropriately to make land tenure more equitable, secure and sustainable. Unfortunately the implementation of the INRA Law No. 1715 (1996) has been inconsistent and often ineffective, falling short of expectations particularly in identifying public lands and reverting underutilized lands to the State for distribution, and in improving equity in land distribution. Inadequate land taxation policies and administration are dampening incentives to improve land utilization and open up land markets. Indigenous land titling has advanced, but the process has been characterized by conflict and many claims have not been addressed. A system of protected areas and forest management is operating, but some of the protected areas are being logged illegally and are subject to clearing for cattle

30 It is believed that there are about 550.000 peasant familias and 50.000 agricultural commercial operations in the country. Around 450.000 peasant families work the lands in the Altiplano and almost 100.000 in the lowlands.

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ranching, soybean cultivation and small farmer agriculture. Better tools and more effective institutional arrangements are necessary to achieve the goals of the INRA Law. Instead of the legalistic and process-driven approach of the past, which has not proven sufficient or effective, policy and institutions could more optimally be driven by specific objectives, and institutions held accountable for their achievements, instead of simply reporting their actions.

Bolivia faces five central land policy challenges for poverty-reducing growth, social stability and environmental sustainability.31 These challenges are: a) Completing land regularization and restoring confidence in land institutions; b) Regularizing indigenous land; c) Resolving demands for land distribution through mechanisms that are driven by objective, not by process, and that draw on multiple instruments to achieve the objectives; d) Maintaining the integrity of Protected Areas and Forest Reserves, and e) Improving land taxation.

The first challenge is to complete land regularization and restore confidence in land institutions. Land regularization (saneamiento) is the main focus of the existing land policy, based on the INRA Law. Since 1996, the tenure situation has been clarified on 15 million hectares, and work is continuing on a further 30 million hectares, out of a total of 107 million hectares of land requiring regularization in Bolivia (see Table 3.1). In spite of these accomplishments, many challenges remain and the land institutions (particularly INRA and the Agrarian Tribunals) have suffered an erosion of public confidence. Increased participation by communities in the process (which is often contracted out) would help in making the saneamiento (or land regularization) process more transparent and accepted.

Table 3.1. The Status of the Process of Land Regularization

(December 31, 2005)Status of Regularization Area (hectares) Percentage

Titled 9,255,285 9 TCOs 5,700,000 5Land to be Titled 10,469,111 10In Process 29,983,107 28Land to be Regularized 57,044,220 53Total 106,751,723 100

Source: Sist - INRA

The land regularization process also needs to look very carefully at the social and economic function of non-regularized properties in the country and of properties that are in-holdings within claims for indigenous community lands—Tierras Comunitarias de Origin (TCOs)—with the purpose of clarifying which areas can be subject to reversion to the State and which were acquired legitimately and are in compliance with the “economic and social function” required by the law (Arts. 7 and 169 of the Constitution).32 This concept is key in establishing legitimate property rights in Bolivia and probably will become increasingly important in the future. On the other hand, this revision has in the past been subject to acts of corruption and abuses by state actors. The key issue to ensure the feasiblity of this process is to clarify the definition of the “economic and social function,” for example based on clear benchmarks, and assure that the process to establish these functions is more transparent, independently verifiable, open to all stakeholders, and less subject to manipulation for political or arbitrary reasons. If the

31 See Malcolm Childress: La política de tierras de Bolivia. World Bank Policy Notes for Bolivia, March 2006.32 It should be noted that during the colonial period, the encomenderos bought large quantities of land and limited the production of food in these lands with the rent-seeking purpose of increasing the price of the food sold in the silver mines.

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objectivity, social inclusion and legal integrity of the regularization process is not strengthened, there is a risk that these measures could unleash an uncontrolled process of land invasions and renewed land conflict in the eastern lowlands which could be detrimental to all social groups involved. Handling this process with vision and respect for the rule of law is an immediate challenge for the government. These are not constitutional issues; rather, they can be addressed via amendments to the current Law 1715 and its implementing regulations. Government appears to have taken important first steps in this direction with the issuance of five Supreme Decrees in May 2006 that are designed to speed-up land regularization and close loopholes, and the Congress recently approved reforms to the INRA Law, notwithstanding stiff opposition from larger landowners.

A second pillar of pro-poor land policy for Bolivia is the recognition of indigenous land claims. Indigenous land recognition needs to meet the social demands of the indigenous population and create secure tenure on the enormous areas subject to ancestral claims. Since the promulgation of Law 1715, 440 TCOs (Tierras Comunitarias de Origen) have been created with an area of 5.2 million hectares.33 While successful in creating a large number of legally protected indigenous lands, the process up to date has also been characterized by many conflicts and confusions. These involve the claims of third parties, forest concessions,34 and properties in areas claimed by indigenous people—particularly in the lowlands—as well as disputes over the extent of claims in the lowlands and the highlands, tensions between individualized holdings and collective titles granted to TCOs, bureaucratic slowness in processing claims, and insufficient community involvement in the process. A key problem is that the TCO is a form of private land title which is being used by indigenous communities as an instrument for territorial administrative control for lack of good alternatives. With the objective of advancing in a socially acceptable manner, it is essential to recognize the role of community decisions in the determination of the property regime that should be applied in indigenous communities. In addressing potential legal or constitutional changes it may become preferable to seek to expand the scope of indigenous units of territorial administration in such a way as to permit a wider range of land tenure designations within indigenous territories (such as individual family use rights and common use rights).35

The third key pillar, land redistribution, has largely failed. While land administration is steadily improving, its impact on growth and poverty reduction is still minimal because of the highly unequal land tenure structure, exclusionary land markets, ineffective property taxation and a lack of access to input and output markets which disadvantage smallholders from expanding their land area through rental or purchase. Although the Agrarian Reform (1953) broke up traditional haciendas in the highlands and valleys, a new version of the large landholding system arose in the eastern lowlands (Santa Cruz, Beni, Pando) during the 1960s-1990s, as successive governments made grants of lands estimated at close to 30 million hectares to political supporters. These large land grants provided the land base for industrial crops and livestock ventures, but provoked increasing popular outrage that peaked in 1993-1994, forcing governments to change their approach, which led to promulgation of the INRA Law.36 Bolivia thus faces major inter-33 An additional 124 TCO requests on 16.1 million hectares are in process and a further 50 new requests have been made on an additional 4.5 million hectares in highland areas.34 In its comments on the CSA, the Government indicated that forest concessions were granted based on political considerations, resulting in conflicts with protected areas, TCOs and indigenous peoples.35 The Constituent Assembly may thus find it necessary to clarify whether all indigenous lands must be titled as TCO (as the first clause of Art. 171 indicates) or whether community decisions can be used to determine the property regime in the indigenous community (as the final clause of the Article 171 seems to indicate).36 In its comments on the CSA, the Government has underscored that this process was vitiated by political favoritism, especially during 1970-82, resulting in “historic damage…to the State” and that a profound agrarian reform is essential to improve access to land and create opportunities to “live well”. While the INRA law was important, it was

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regional differences between the Altiplano and the lowlands, as well as intra-regional inequity in and distribution.37

Box 3.1. Alternative Land Access Methods

Equity-sharing Models are being used in Southern Africa. Landowners faced with expropriation and the former workers on their estates form joint-stock companies with common ownership. These schemes prevent the technology and market-linkages from being lost during land reform.

Contract farming, such as the experience with snow peas and broccoli in highland Guatemala, provides farmers with small plots of land the technological package and a guaranteed price for producing a specific product under contract. Contract farming works well for crops with high labor inputs, which help to bring landless agricultural laborers into the production process.

Land sharing/negotiation is a technique used primarily in Asian cities such as Jakarta and Dhaka to accommodate settlers on tax delinquent or underutilized parcels by negotiating with landholders in exchange for resolving tax liens or granting planning permissions. This technique is proven in peri-urban areas and could be adapted to rural situations such as lowland Bolivia.

Confronting large landholders with legislation and the potential for expropriation creates incentives to subvert, avoid and challenge the law. A more pragmatic vision of land redistribution might rely on a diversified set of instruments and focus on the objectives of actually getting good agricultural land under the control of the most productive of the landless (see Box 3.1.). This approach would take a much more inclusive view of rural development that also embraces employment-creation and non-farm activities as solutions to the problem of landlessness. In this pragmatic vision, a wide variety of mechanisms including public reversion, land purchase and leasing programs, improved markets, social pacts, contract farming, and equity-sharing enterprises could be marshalled to address the problem. A less recommendable method of redistributing land would be to hand out public lands under forest cover in order to promote agricultural production, since these lands are important for water management and carbon sequestration, and are generally characterized by low agricultural productivity once they are cleared, and therefore do not help the beneficiaries to escape poverty.

The fourth key area is maintaining the integrity of protected areas and forest reserves. Bolivia ranks sixth in the world in the size of its tropical forest endowment, with almost half of the country (some 53 million hectares) still covered with natural forests. It is the world leader in voluntary forest certification, with 2.2 million hectares of forest certified as sustainably managed forests, and forest products accounted for 11 percent of legal Bolivian exports (US$117 million dollars) in 2003.38 Bolivia also has an extensive protected areas system, comprising 22 million hectares (more than 20 percent of Bolivian land area) that includes a wide variety of forests,

insufficient to fulfill its basic objective of ensuring such access. Moreover, it was not accompanied by resources and policies to promote rural development. Thus the expansion of the agricultural frontier resulted in depredated lands and impoverished peoples for lack of economic development support to accompany the process.37 The western valleys are home to 60 percent of the landholders in the country but amount to only 10 percent of the agricultural land (1.1 million hectares). In contrast, the eastern lowlands contain only 18 percent of landholders but account for 75 percent of the land used for production (8.5 million hectares). Within the eastern lowlands, there are impoverished rural populations of recent migrants in northern Santa Cruz or enclave Guarani and Chiquitano groups that do not have access to large underused amounts of land, e.g. 108,000 hectares lie fallow as banks have foreclosed on them but not yet sold them.38 The country’s wood reserves amount to 317 million cubic meters, and sustainable timber production potential exceeds 20 million cubic meters yearly. Its forestry sector comprises nearly 1,000 registered businesses, generates 50,000 direct jobs and contributes more than US$5 million per year in tax revenues to the government.

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wetlands, and other natural ecosystems, with many endemic animal and plant species. The protected areas can generate significant tourism revenues, and are still an underutilized but potentially significant source of local development.39 If well managed, Bolivia’s protected areas and forest reserves have a major potential to contribute to the Millennium Development Goals of environmental sustainability and poverty eradication. On the other hand, if they are neglected or opened up to inappropriate land uses, their contribution to Bolivia’s sustainable development could be irreversibly lost. The sustainable management of these natural resources requires a strong compromise at the state level and larger communitary participation (See Box 3.2).

Box 3.2. Conflict and Forestry Management since the 1996 Forestry Law

Bolivia’s Forestry Law No. 1700 of 1996 led to significant changes in the country’s regulations on forest management and harvesting, including requiring management plans for any timber harvesting and the banning of chainsaws in the production of saw timber. In practice, these proved to be critical barriers to community forestry on TCOs, which quickly fell under pressure to sign exclusive contracts with companies in order to meet the technical requirements for commercially harvesting timber. Many of these agreements were unfavourable to the indigenous communities, giving them little say in how the forests were managed. By 1999, Bolivia’s Superintendent of Forests had reviewed 90 third-party forest management plans for TCOs and annulled all of them.

The New Forestry Law also led to conflicts between indigenous land and forest concessions. By 1997, Bolivia had leased 5. 8 million hectares of forest to 85 companies under the new law. Of this area, 700,000 hectares contained lands to which indigenous peoples had existing title claims. In 1999, indigenous organizations in Bolivia brought land conflicts caused by the Forestry Law to the International Labour Organization and in 2000, Bolivia’s Supreme Court ordered that concessions within indigenous land claims be first subject to the titling process. Nonetheless, Administrative Resolution No. 098 was issued by the Authorities, limiting the land rights claims process to 30 days. Three months after passing the Resolution, 3.8 million hectares of previously contested forest land had been designated harvestable, including 800,000 hectares of the Chiquintano Dry Forest. AR No. 098 became one of the impetuses of the Third Indigenous and Campesino March in 2000, which forced its repeal.

Bolivia is the country with the most forestland certified under the Forest Stewardship Council (FSC) program. However, certification has not reached indigenous peoples and their forests to the extent that might be expected, as nearly all of the certified forests in Bolivia are managed by private industry. Only one indigenous territory in Bolivia, the TCO Yuqui-CIRI, is currently certified—their 51,390 hectares of forest represents less than 3 percent of the country’s 1.9 million hectares of certified forests. Meanwhile, in 1999, FSC certified a 100,000 hectare concession managed by La Chonta Logging Company of which 90 percent overlaps the Guarayo indigenous territory.

A final pillar of a pro-poor land policy in Bolivia is land taxation, which is where the promise of fiscal decentralization and pro-poor land policy meet. Improving property taxation, particularly in rural municipalities, could simultaneously improve local government revenues and create a better incentive environment for land owners and speculators to use their land to its maximum productivity or release it onto the market. At present, land taxes account for 51 percent of total municipal tax revenue, but 90 percent of this revenue is collected in only ten municipalities. The logistical problem of inadequate physical and legal information on the properties and virtually nonexistent property valuation capacity for tax purposes can be overcome

39 For example, the number of visitors to the Reserva Nacional Eduardo Avaroa, the country’s most visited, rose from 13,000 (in 1999) to 43,000 (in 2003) and continues to grow. This tourism generated over $160,000 annually in entry fees, along with a much greater overall economic impact. The challenge is to manage this economic activity sustainably and to ensure more widespread and equitable participation in its benefits. Land clearing pressures on certain forested areas can also be alleviated by broadening access for local people to their benefits (e.g. harvesting of Brazil nuts).

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by municipalities creating their own simple cadasters for tax purposes, utilizing the self-declaration of value by owners in the first instance, which can later be upgraded when municipios gain access to the real-estate information system of the legal cadastre maintained by INRA and the Property Registry.40 To this end, municipal cadastral information systems need to be interconnected with the legal cadastre to obtain access to up-to-date physical and legal data, and supplemented with economic valuation of the properties. The political problem of a highly visible tax can be addressed first by making benefits highly visible, especially through visible public works in the municipality. Moreover, the political reluctance to alienate large landowners by enforcing the tax provisions—since land taxes are highly progressive—can be addressed by linking federal transfers to the tax effort by municipalities so as to make the rural land taxation scheme more effective, and by opening the tax records to greater public scrutiny.

TERRITORY

Looking beyond land issues, a key area for policymakers is indigenous territory. The 1996 INRA Law classifies different land tenure regimes and defines the procedures for legal recognition of indigenous land. It also incorporates constitutional guarantees to indigenous peoples to their communal lands of origin, under article 171 of Bolivia’s Constitution.41 The original thrust of the indigenous land rights legislation focused on the eastern lowlands where the concept of large collectively owned-managed extensions of land was generally compatible with indigenous societies’ land use patterns.42 In the highlands the issues are quite different and the legal paradigm of indigenous community land as a property right is inappropriate for the complex territorial relationships of the highland communities and the varied systems of traditional property rights valid within them. In essence, TCOs are a modality for land tenure. But this modality is in many cases incompatible with other modalities in use in the highlands, including individual tenure and mixed systems of collective and individual tenure. The imposition or use of the TCO as the only land tenure modality available to indigenous communities, a modality which is legally unrelated to territorial administration, in fact complicates both land tenure traditions as well as territorial administration in the highlands.

The implementation of the legal framework for indigenous land and territory in the eastern lowlands has been plagued by bureaucratic challenges and third party claims. Much of the problem in lowland areas stems from the complexity and insufficient transparency of the

40 In its comments on the CSA, the Government has noted that the National Agrarian Reform Institute has not transferred cadastral information on regularized lands to municipalities and indigenous districts to enable them to upgrade their tax base. It also underscored the importance of the principle of equitable land taxes, i.e. higher taxes on those who own more land.41 Several other environmental laws in Bolivia relate to indigenous land tenure: The Forestry Law (No. 1700) of 1996, the Environment Law (No. 1333), adopted in 1992, the International Labor Convention (ILO) No. 169. Law 1257, passed in 1991, incorporates the Convention into Bolivian law. Further initiatives to increase participation include the creation of a legal service for assisting indigenous peoples in the implementation of their rights to land and natural resources (Decree No. 26151).42 Claims to indigenous land en the Amazon region have made by representatives of groups such as the Chácobo, Pacahuara, Ese Ejja, Caineño, Araona, Yaminahua, Machinery and Tacana, mostly through the Central Indígena de la Región Amazónica de Bolivia (CIRABO). In Beni, the 14 TCO claims include groups from the Mojeños, Yuracaré and Chimán that have run into problems with overlapping forest concessions and large cattle farms represented by the FEGABENI (Beni Cattle Farming Federation). In Santa Cruz, Guaraní, Ayoreo and Chiquitano groups have filed 21 land claims, with the Asociation of Guaraní Peoples (APG) playing a key advocacy role on their behalf. These groups have encountered problems of third party parcels en the areas claimed as well as special problems of captive communities—Guaraní communities employed in their totality as workers in large farms, often with little remuneration and few economic alternatives.

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bureaucratic procedures required for land recognition,43 and the problem of third party claims by settlers who have legal title to land included in an indigenous land claim, as well as by others who have no title or certified use rights. The unsatisfactory resolution of third-party claims and compensations is one of the main sources of conflict around indigenous land in the eastern part of the country. This could be addressed using various alternative solutions, based for example on experiences in Peru and the United States. One option is to pay the third parties for their improvements, while requiring that they remove themselves from the TCO land claim area. Another is to create joint ventures between the third parties and the indigenous groups, so that the land is used for the benefit of the indigenous community regardless of the formal ownership. A third option is for the indigenous community to purchase land from the third parties in strategic areas to consolidate their claims, as was done by the Navajo Nation and the Red Lake Band of Ojibwe in the US. Proposals for national or international land funds for this purpose have also been made. Each one of these options may have relevance in different areas of eastern and Amazonian Bolivia.

In the highland areas the challenge is that the TCO framework is often incompatible with established land practices and with local territorial-administrative structures. The attempt to apply the model of indigenous property rights (TCO) has led to a lack of recognition of existing individual and communal property rights within communities and spurred conflict between communities, resulting paradoxically in a diminished ability of indigenous communities to define their own administrative and management models for their lands in some cases and preventing legal and social recognition of existing land rights in others. The key is the principle of determination of property reigime based on decisions taken by the communities. The pre-colonial and colonial history of western and highland Bolivia has created a diverse set of traditional Quechua and Aymara territorial-administrative divisions (ayllus and markas), which function together with and as part of national political-administrative units. Bolivia’s Law on Popular Participation, which provides for the modality of the Indigenous Municipal District, is currently the most appropriate starting point for establishing territorial recognition. The TCO modality together with the other forms of property available in Bolivian law, are more appropriate as subsidiary determinants of property rights within indigenous territorial jurisdictions.

International experience offers valuable lessons for consideration. For example, Brazil has one of most advanced legal frameworks for indigenous land tenure in Latin America. Article 231 of the Brazilian Constitution guarantees permanent possession and exclusive use of their traditional lands for indigenous peoples, including soils and waters, although not full ownership. It also prohibits the removal of indigenous peoples from their lands and outside exploitation of their territories. The demarcation and recognition of indigenous lands has been significant.44 At the same time, the civil administrative grievance procedure introduced under Decree 1775 of 1995 has undermined some of the constitutional and legal protections, and lands are subject to illegal invasions, especially by gold and diamond miners, while indigenous people suffer violent intimidation by powerful landed interests, with insufficient government action to stop these invasions and end the violence. In Colombia, the 1991 Constitution recognizes customary legal systems and traditional authorities as legitimate public entities for autonomous land administration, thereby recognizing the indigenous territorial model of land tenure, which

43 Much of the work is concentrated in the hands of INRA land technicians and lawyers with insufficiently participatory processes and a lack of transparency in the fieldwork, recognition of third-party rights and drafting of administrative resolutions.44 Around 104 million hectares, or more than 12 percent of the national territory of Brazil, mostly in the Amazon region, have been recognized as indigenous lands for indigenous groups representing only two percent of Brazil’s population. On the other hand the process of recognizing indigenous lands has slowed considerably in recent years.

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involves communal property ownership as well as jurisdiction over the management of natural resources. Indigenous authorities in the resguardos are legally responsible for land-use and social programs in these indigenous territories, and they receive state funds for their own health, education and social programs (see Griffiths 2002 and Roldán 2004). Additional experiences can be found in Annex 3.1.

CONSTITUTIONAL PRINCIPLES AND OPTIONS FOR THE CONSTITUTIONAL ASSEMBLY

Although the constitutional basis for recognition of indigenous lands in Bolivia is fairly strong, some adjustments could be considered. The most important principles which can be discerned from the above analysis are the following (also see the international experiences gathered in Annex 3.2):

The most advanced constitutions conceive of indigenous lands as territories or habitats. If a state regards itself as multi-ethnic or multi-cultural, then it would make logical sense to recognize different forms of land-holding, especially since land is fundamental to indigenous peoples as established in ILO Convention 169.45 For example, in Venezuela, the state relates the habitat to the survival of indigenous peoples by recognizing original rights over lands they traditionally occupy and which are needed to develop and guarantee their way of life (Art. 119).46 Thus the traditional concept of ‘land,’ which only implies commercial property—usually held individually—and the use of renewable resources is transformed in these new Constitutions into new and different legal concepts that, for example, also recognize collective holdings.

The spatial notion of indigenous lands is important, e.g. Brazil’s constitution (Art. 231) provides a broad definition of indigenous lands, comprising lands that are occupied, used for activities and necessary for well-being and cultural survival.47 In other cases, the framework allows for the possibility of expanding the territorial area on the basis of their historical and not just present settlement.48

The security of tenure and special protection of these possessions is reflected in their inalienable, imprescriptible and un-mortgageable nature they cannot be sold, occupied illegally or embargoed by virtue of debts. Moreover the forced transfer or resettlement of indigenous peoples by virtue of expropriation is prohibited.

45 “(…) In applying the provisions of this Part of the Convention governments shall respect the special importance for the cultures and spiritual values of the peoples concerned of their relationship with the lands or territories, or both as applicable, which they occupy or otherwise use, and in particular the collective aspects of this relationship” (Art. 13, 1).46 For example: “traditionally occupied lands” (Argentina, Art. 75, 17 and Brazil, Art. 231, 1); “original community lands” (Bolivia, Art. 171); “community lands of ethnic groups, indigenous territories, reserves” (Colombia, Arts. 63, 286 and 329); “community lands” (Ecuador, Art. 82, 2); “historical lands of indigenous communities” (Guatemala, Art. 67), property of the Amerindians (Guyana, Art. 142, 2i); “lands of indigenous groups” (México, Art. 27, VII); “lands of the communities of the Atlantic coast, communal lands” (Nicaragua, Art. 89); “collective property of indigenous communities” (Panama, Art. 123); “habitat and community property” (Paraguay, Arts. 63 and 64); “lands of native and peasant communities” (Perú, Art. 89); “habitat, lands that indigenous peoples and communities occupy ancestrally and traditionally” (Venezuela, Art. 119).47 This expansion of the concept of land takes into account environmental studies and the understanding of the habitat as a space for physical, social and cultural reproduction: “The use of the term lands […] shall include the concept of territories, which covers the total environment of the areas which the peoples concerned occupy or otherwise use” (ILO Convention 169, Art. 13.2).48 Moreover, specific rights may be warranted for indigenous peoples that live in border areas or are settled between two States, so as to ensure that their territorial integrity, their rights and protections, and their mobility within their territory are not compromised by national borders.

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A process for delimiting and physical demarcation is essential, together with registration in the cadastre, and regularization (clarification of rights to title), in order to guarantee effective protection.

Some Constitutions recognize the symbolic or religious value of the cultural patrimony of indigenous peoples, such as sacred places and temples. Another important dimension is related to the use of both renewable and non-renewable resources. The usual legal formula maintains the rights of the state to that which is below the land surface, while recognizing consultation and participation mechanisms in extraction programs.

Protection of intellectual property rights over biodiversity and genetic resources is a new theme that appears in some cases, inspired primarily by the Biodiversity Convention (1992).49

CONSIDERATIONS BEYOND THE CONSTITUENT ASSEMBLY

The fundamental areas that should be strengthened are generally beyond the Constitution. The key issue at stake is the question of the level of autonomy over natural resources, particularly mineral and forest resources (see the Chapter on Indigenous Rights), as well as the implementation of institutional and legal reforms so as to fulfil the vision that is established in the Constitution. In particular, dealing in practice with third parties is fraught with difficulties but new approaches, including those outlined above, can be introduced to complement what has been a largely ineffectual search for alternative public lands for distribution. In the case of overlapping forestry concessions and indigenous land areas, co-management of the resource and a sharing of the returns to the exploitation offer an important potential solution, while superior rights and a predominant role for the indigenous communities in sustainable forestry management in their areas could be assured in the future. Beyond existing concessions, the potential for community-managed forest enterprises by indigenous communities themselves is huge and under-exploited. Another consideration would be to prioritize territorial administration through the Popular Participation Law above the titling of indigenous communities using the modality of the TCO. It would also be important to reconsider the indigenous lands articles of the INRA law to allow duly formed territorial administrations to determine the nature of the specific land rights granted in their territory—communal, private or otherwise.

49 The Convention establishes, for example, that every member State shall: “Subject to its national legislation, respect, preserve and maintain knowledge, innovations and practices of indigenous and local communities embodying traditional lifestyles relevant for the conservation and sustainable use of biological diversity and promote their wider application with the approval and involvement of the holders of such knowledge, innovations and practices and encourage the equitable sharing of the benefits arising from the utilization of such knowledge, innovations and practices” (art. 8, j).

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4. DECENTRALIZATION WITH INCLUSION

INTRODUCTION

A Constitution deals with the allocation of power in a country; therefore, the Bolivian Constitution must deal with the issue of decentralization in Bolivia. Decentralization is a shift of power from the central government to sub-national governments. Four main types of “powers” are involved, namely the power to spend, to tax, to borrow, and to regulate (e.g. urban transport). Sub-national governments. A sub-national “government” is an entity usually consisting of a council and of an executive (called mayor or prefect, etc.), that has authority over a given jurisdiction within the national territory. In Bolivia there are municipal and departmental governments.

DECENTRALIZATION IN BOLIVIA

Bolivia was a highly centralized nation until 1994. The first phase of decentralization in Bolivia started in 1994 when municipalities became full-fledged local governments, with elected authorities, local taxes, central government transfers, and expenditure responsibilities.50 Before that, the municipalities had very limited power with jurisdiction only in urban areas.51 At the same time, the Law of Popular Participation also recognized territorial organizations in civil society. Departments were mostly administrative sub-divisions of the national government, until locally elected councils (indirect suffrage) were introduced in 1995, and with appointed, not elected, executive bodies (prefectos).52 This first phase of decentralization offers a number of relevant lessons for the second phase in which the country finds itself at this time (see Box 4.1).

Bolivia is embarking on the second phase of its long path towards decentralization, in which the use of the ambiguous term “autonomy” is prominent. This new phase is focused mainly at the departmental level. It differs from the first phase due to the impulse generated by interdepartmental differences related to the control and distribution of revenues from natural resources, especially hydrocarbons and land. The differences are particularly strong in the departments with greater natural resources, that hope to control decisions over these resources to the extent possible via the decentralization of responsibilities. On the other hand, the more poorly endowed departments hope for the centralization of decision-making in order to secure a more equitable distribution of revenue. Consequently, the driving forces behind decentralization are not related to improving public services, reducing interdepartmental inequalities, or greater fiscal responsibility, in spite of their importance. Thus the debate over the distribution of natural resources is the key element behind the demands for greater departmental autonomy, although it is unclear what such autonomy means in practice (see Box 4.2). To some extent, the confusion generated by the issue of autonomy has resulted in diverging positions regarding departmental

50 Regulated through the Law of Popular Participation, 1994. Municipalities were later regulated by Law 2028 (1999).51 There were 24 municipalities with only urban jurisdictions. The municipalities were regulated under the Municipal Law of 1985.52 Regulated through the Deconcentration Law (Ley de Descentralización Administrativa), 1995. Also see Prud’homme, Rémy, Herve Huntzinger and Sonia Guelton (2001): Descentralización en Bolivia. Interamerican Development Bank, August 2001, Washington, DC.

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autonomy. While there is widespread public support for the direct election of prefectos in all departments, the people are divided over demands for departmental autonomy which, in the opinion of many Bolivians, could threaten national unity.53

Box 4.1. Lessons Learned from the First Phase of Decentralization (1994-2004)

Municipal decentralization and popular participation have provided a “voice” to the citizenry and have facilitated social inclusion. The number of indigenous mayors and locally elected representatives has gradually increased. Indigenous and peasant communities are participating more in the decision-making process related to public investment. Social control through Comités de Vigilancia and other means have served to strengthen the capacity of local communities to direct resources to their priority needs. However, it is also true that social control has focused more on inputs and processes than on results, and that attention to investment has frequently diverted attention away from the provision of services. A new challenge has now emerged for governability at the national level: in the absence of institutionalized mechanisms for conflict resolution—between levels of government and between different social groups—diverging interests are being reflected in the political agenda in a non-mediated fashion. The lesson learned is that if decentralization only promotes inclusion and fails to create mechanisms for conflict resolution, there could be a persistent challenge of governability.

The distribution of resources at the municipal level is equitable, but the distribution of resources through sectoral Ministries continue to present a challenge. Decentralization at the municipal level has changed both the distribution and the focus of national investment, with a new focus on poverty and priority for social programs. This has also implied greater distribution from the municipal capitals to the rural communities. However, the distribution of resources by the Ministries of health and education, among others, has not yet resolved the problems at hand. The distribution of teachers, for example, is inefficient and unequal: throughout the country, almost 9,000 teachers are not required where they are currently working but are needed in other locations. The resources should be better distributed both across and within departments. The lesson is that departmental decentralization needs to pay more attention to the distribution of resources both between and within departments, but with a focus on improving the provision of services.

The lack of transparency and the absence of escalating sanctions have weaked fiscal responsibility. The rules for administering departmental and municipal debt are burdensome and there are insufficient data on municipal debt. Current monitoring and vertical administrative controls have been insufficient to achieve greater transparency. The status of departamental debt remains ambiguous. On the other hand, the transfer of investment spending to municipalities allowed for “rapid gains” in achieving fiscal neutrality, but this was achieved at the cost of fragmenting decisions on resource allocations. The lesson is that departmental decentralization should create a commitment to fiscal responsibility and better debt administration, buttressed by credible and effective escalating sanctions.

The uncoordinated transfer of spending responsibilities has been driven above all by political pressures. Political pressure to advance in the decentralization process has resulted in an uncoordinated transfer of spending responsibilities between departmental and municipal levels. The decisions on current and investment spending, as well as the provision of services, were not adopted jointly and at different levels of government. This has led to an ambiguous allocation of responsibilities and to inefficiency. Thus it has been extremely difficult to achieve improvements in sectoral services (health, education, roads), at every level of government throughout the country. Meanwhile, initial experiences in the creation of municipal government asociations (mancomunidades) to achieve economies of scale have not been sustainable. The lessons learned are on the one hand that departmental decentralization should be designed so that decisions on current and investment expenditures are made at the same level of government, and that coordinated, sectoral approaches are required for decentralization to lead to improved service provision.

Source: World Bank 2006: Institutional and Governance Review: Bolivia – Towards an Inclusive Decentralization.

53 It is worth noting that various indigenous peoples have expressed their own demands for “autonomy.”

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Bolivia has begun a second phase of the process of political decentralization that is focused at the departmental level and characterized by decentralization of resources but not of taxation. Bolivia is by now a fairly decentralized country in terms of expenditures. With the approval of the Hydrocarbons Law (HCL) in May 2005, the share of total public expenditures made by departmental and municipal governments rose from 27 percent (which was already significant by international standards) to 35 percent.54 In terms of investment, departmental and municipal governments now already execute around 60 percent of total public investment. On the other hand, service delivery has not improved significantly with decentralization.55 The quality of services is also uneven across departments, and there are significant disparities between urban and rural areas. This is important as inadequate and unequal service delivery, particularly in the case of education and health, is at the heart of social disparities in Bolivia. On the fiscal side, departmental governments are not entitled to collect taxes, and while municipalities have taxing powers—they administer the automobile tax and the property tax—they raise only 6 percent of total taxes and royalties, which is equivalent to the proportion of taxes raised by municipalities in most other countries in Latin America (see Table 4.1. for regional comparisons). Therefore there is an unusually high vertical gap (between revenues and expenditures) for departmental and municipal governments in Bolivia, which in turn results in central government transfers representing about 75 percent of the resources of municipalities and nearly all prefecture resources.

Box 4.2 What are Autonomies?

The word autonomy does not have a well defined meaning. In all countries, it suggests sub-national governments with a high degree of decision-making authority. All sub-national governments, in all countries, have some degree of autonomy in different dimensions: electoral regulations for executive and legislative powers, the tax bases assigned to sub-national governments, the possibility to determine tax rates, the types and amounts of transfers received, spending responsibilities, borrowing rights, etc. Sub-national governments never have zero autonomy nor 100 per cent autonomy, therefore the choice is never one between having or not having autonomy. Rather, it is about choosing between various degrees and above all between various forms of autonomy, that is, between the options presented below in this chapter.

Table 4.1. Sub-national Taxes as a Share of Total Taxes in Selected Countries in LAC (percent)

Regions/States Municipalities TotalBolivia (2005) -- (*) 6.0 6.0Brazil (Paraná) 2001 34.1 6.3 40.4Argentina (2002) 22.7 5.3 28.0Chile (2002) -- 8.2 8.2Paraguay (2004) -- 7.9 7.9Uruguay (1999) 13.2 -- 13.2

Source: Prud’homme (2004), World Bank calculations. Note (*): Departmental governments in Bolivia do not administer taxes.

54 These figures compare with Argentina’s provinces, which execute 45 percent of total public spending, and Brazil’s states and municipalities, which execute 40 percent. By contrast, subnational expenditures are five percent of the total in most Central American countries. The share of municipalities (18 percent before the HCL; and 22 percent after the HCL) is greater than that of prefectures (nine percent before the HCL; 13 percent after the HCL), and the former have greater a degree of control over expenditures, as earmarking means Prefectures can freely allocate only eight percent of their resources. The most important transfers for municipalities are the 20 percent co-participation in national revenues (under the 1994 law) and the resources provided under the Law on Dialogue (of 2001).55 Barrios Suvelza, Franz Xavier (Coord.) (2002): Estudio de Evaluación de Capacidades Institucionales y de Gestión Prefectural- Ministerio de la Presidencia/Embajada de los Países Bajos, La Paz, Bolivia.

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Two key initiatives, the approval of the Hydrocarbons Law and direct election of prefects, shape—and constrain—the future path of decentralization. The election of prefectos for the first time in December 2005 has given them a mandate from the people instead of from the head of state, leading to de facto autonomy of prefectures in terms of political decentralization.56

Moreover, roughly two-thirds of the additional tax resources to be collected from the HCL, (estimated to total US$240 million in 2006)57 have been allocated to the departments and municipalities without them assuming new responsibilities.58 For prefectures, this represents on average an increase of more than 50 percent in the level of transfers. These decisions limit the country’s options to the extent that resources that might otherwise have been used to create incentives for institutional strengthening or better service delivery have already been assigned to departmental governments, and indeed in a highly inequitable way. They provide US$16 per capita to La Paz (which has one of the highest incidences of poverty) while Pando (among the least poor) receives US$407 (see Table 4.2). Consequently, the transfer system will aggravate rather than alleviate the already large interdepartmental disparities.59

Table 4.2. Increase in Disparities in Interdepartmental Transfers Produced by the Hydrocarbons Law of 2005 (USD/ per capita

DepartmentBefore HL

(2005)After HL (2006,

projected) Department Before HL (2005)After HL (2006,

projected)Chuquisaca 20.7 48.5 Tarija 199.2 246.0La Paz 9.5 15.8 Santa Cruz 18.4 25.7Cochabamba 20.1 30.3 Beni 31.0 71.8Oruro 22.2 60.0 Pando 125.5 407.2Potosí 15.0 35.8      Note: Values for 2005 are based on the annual budget. Values for 2006 are estimated. Source: World Bank (2006b).

Hydrocarbons revenues play a critical role in Bolivia’s decentralization process.60 Oil and gas rents are potentially very large but they are also highly volatile, and there are sound reasons to believe that a large share of the rents (around 90 percent based on international experience) should “belong” to the central government rather than departmental governments. The first reason is equity. Oil and gas resources are typically concentrated in given areas of a country’s territory without any relation to population and levels of development. Bolivia is no exception in this regard. Allocating the hydrocarbon rent to the “producing” departments will therefore result in potentially enormous differences between departments in terms of resources per capita. The second reason is volatility. Since hydrocarbon rents are very unstable over time, recipient departmental and municipal governments would have very unstable or volatile resources (see the data on volatility of hydrocarbons revenues in several countries throughout the world in Annex 4.1). Such volatility is also a problem for the central government, but is much more manageable because the central government has other, more stable, sources of revenues. In this context, even earmarking oil rents for departmental and municipal governments is inadvisable,

56 De iure, the prefectures are still de-concentrated extensions of the central administration.57 These values were calculated prior to the adoption of Decree No. 28701 in May, 2006, which nationalized hydrocarbons revenues in Bolivia.58 While Decree No. 28421 of October 2005 earmarks the resources for certain sectors and provides for the transfer of additional responsibilities to municipalities and prefectures in the areas of rural development, employment creation, and public health, it is not yet clear whether the central government will stop providing such services, and/or in which jurisdictions such activities were carried out in practice. These two factors largely determine whether or not the measures foreseen in Decree No. 28421 contribute, at least at the margin, to fiscal neutrality.59 See Catena, Marcelo; Navajas, Fernando 2006: Oil & Debt Windfalls and the Fiscal Dynamics in the Highlands: Bolivia in the roller-coaster, FIEL, IDB.60 See The World Bank: Manejo Fiscal de la Renta Petrolera: Situación Actual y Opciones de Política. World Bank Policy Note for Bolivia, January 2006. Also see Ahmad and Mottu (2002) on the volatility of oil revenues.

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since it is the most volatile source of government revenue. Municipalities and departments would be much better served by resource flows that are more stable, so that receiving a fixed share of total revenue including hydrocarbons revenues (perhaps with small additional compensations from hydrocarbons rents for producing departments) would be more advisable than receiving a large share of a highly volatile revenue source. A national fund for hydrocarbon rent stabilization—well managed and accompanied by fiscal responsibility rules—could reduce government income volatility even more. However this more prudent path has not been considered to date in Bolivia.61

The current phase of decentralization faces three serious challenges that will make improvements harder to attain. First, as noted, starting decentralization with the political election of departmental authorities and the transfer of new resources without any responsibilities will make it extremely difficult to ensure an efficient use of Bolivia’s limited public resources. Second, responsibilities among government levels are still disjointed and fragmented. Third, the intergovernmental fiscal framework does not distribute resources equitably or encourage proper fiscal responsibility among departmental and municipal governments. These entities’ debt is managed with little transparency and oversight, and there are no rules or enforcement mechanisms in place to encourage responsible management of finances.62

INTERNATIONAL EXPERIENCE AND DECISIONS ON DECENTRALIZATION

Decentralization implies decisions and choices in at least five areas: governance rules, expenditures assignments, taxation, transfers, and borrowing.

Governance rules – Considering decentralization and autonomy, a first set of decisions relates to the structure and type of authority at local levels. For example, in many Latin American countries, elected councils decide the salaries of mayors and councilmen. While this is done on the basis of respectable principles, in practice it can lead to excesses that undermine the credibility of decentralized governments. The central government could introduce norms governing such salaries. These norms could be (as is the case in France for instance) a function of the size of the decentralized government.

Expenditure assignments – Certain services should clearly be allocated to the central government (defense, foreign affairs, justice, research) or to municipal governments (street cleaning, street lighting, sewerage). But for many other services, options are open. This is in particular the case for education, health, transportation, and welfare. A clear division of labor between the three levels of government is desirable, but it will never be—and should not be— absolute.

Taxation – Decisions about the allocation of responsibilities cannot be separated from decisions about the allocation of taxes and about a transfer system. It is very important that municipalities and departments be responsible for taxes. This means they must have access to tax

61 See World Bank 2006b: “Revisión Institucional y Gobernabilidad: Bolivia—Hacia una Descentralización Inclusiva” for an analysis of the positions and policies of several actors involved in the subject. 62 The government intervened in insolvent municipalities in 2000 and established the Financial Rebalancing Program (PRF) which was a fund that was partially capitalized by co-participation transfers. This measure marked the first time since the launching of decentralization that the Central Government established a more prudent framework for municipal finances. Nonetheless, debt reduction based on PRF goals has not continued in all municipalities.

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bases, and decide the tax rates (by a vote in the council).63 It is the right to increase or decrease the tax rate that defines the ownership of a tax, and that promotes accountability to citizens.

Transfers – One reason for existence of transfers from central government to municipalities and departments is that it is impossible to decentralize as many taxes as would be required to finance desirable decentralized expenditure. Another reason is to correct for differences between municipalities and between departments. All transfers correct the vertical gap between revenues and expenditures, but only well-designed transfers can partly correct the horizontal gaps between richer and poorer areas. A first basic distinction is between (i) specific transfers for a particular purpose or project, and (ii) general transfers (called block grants) that come without strings attached and can be used by sub-national governments as they see fit (see Box 4.3 on the Latin American experience).

Borrowing – Sub-national governments are generally eager to borrow, however the amount that can be borrowed is limited by the future flow of taxes and transfers. Constraints should be placed on municipal and departmental borrowing and can take various forms, such as: a maximum debt to own resources ratio, a maximum debt service to own resource ratio, or prior central government authorization for additional borrowing, together or in combination with other fiscal responsibility rules.

Box 4.3. Intergovernmental Transfers: The Latin American Experience

With few exceptions, most countries in Latin America nowadays apply rule-based transfers that relate transfers to current revenues, which has enhanced the predictability of the funding for sub-national governments. Formulae that grant an increasing share of revenue to sub-national governments have proven problematic: Colombia, for instance, increased transfers from 22 percent of current revenue in 1993 to more than 40 percent in less than decade. Similar approaches were followed by Venezuela (1988), Ecuador (1997), and, more recently, Nicaragua (2003), which has led to fiscal problems when the transfers have not been linked to transfers of responsibilities or reductions in national government expenditures for these services. Peru has been the exception, where since 2002 there has been a strict application of the principle of “fiscal neutrality” in its decentralization processes, i.e. responsibilities are decentralized simultaneously with the corresponding resources. Most countries today apply complex transfer formulae which dilute transparency. However throughout Latin America there is a trend towards reducing transfers of untied resources and increasing transfers conditioned on results obtained by sub-national governments. Nevertheless, the main challenge to date in the region has been the granting of political autonomy to sub-national governments without previously establishing a proper framework of fiscal rules.

The choices in these five areas have consequences in at least four domains, namely political participation, interdepartmental equity, public services efficiency and equity, and macro-economic management.

Political participation – Municipal and departmental politicians constitute a pool from which national politicians might emerge, and one can argue that the larger this pool is, the better it is for a democratic nation. Because sub-national elections are usually more open than national elections, it is easier for members of minorities and for women to access politics at this level than at the national level. For example, in most countries the share of women is higher in municipal and departmental councils than in national assemblies.

63 See Giugale and Webb (2000).

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Interdepartmental equity – Decentralization is often seen as a way of reducing disparities automatically between municipalities or between departments. Unfortunately, in practice decentralization often contributes to increased rather than reduced disparities. Reducing disparities can only be achieved if a transfer system is designed to assign more resources consistently (on a per capita basis) to the poorer municipalities and departments.

Public services efficiency and equity – Decentralization should contribute to improve the efficiency of public service delivery. Because decisions are taken closer to users and beneficiaries, it is expected that the decisionmakers will be more accountable to their electors. Decentralization by itself however, does not guarantee public service equity, due to two factors: (i) in terms of interdepartmental equity, richer departments might benefit more from tax decentralization or from a poorly designed transfer system that distributes resources inequitably, and (ii) intra-departmental differences might not decrease due to elite capture of local governments, lack of transparency, or inadequate investment decisions.

Macroeconomic management – Decentralization often results in higher expenditures, as the cases of Colombia, Ecuador, Argentina and Brazil have demonstrated. This is due to transfers to subnational governments and the granting of new revenue bases for subnational taxation without dismantling central institutions at the same time, and reassigning expenditure responsibilities to the subnational levels.

Decentralization cannot be seen as a substitute for an explicit inclusion policy. Nonetheless, the increase in political participation made possible by decentralization will benefit members of target groups and influence their decisions. Similarly, a more efficient and above all a more egalitarian supply of public services will benefit poorer groups (who happen to be particularly concentrated in some departments or municipalities).

CONSTITUTIONAL PRINCIPLES AND OPTIONS FOR THE CONSTITUENT ASSEMBLY

The Constituent Assembly offers an important opportunity to lay the foundations on which decentralization policies will be developed and implemented in future. The main difficulty is that a Constitution is fixed and written for the very long term, whereas decentralization arrangements need to adjust over time. Thus a well-written Constitution usefully justifies, suggests and facilitates good policies, but does not prescribe them in detail. It is suggested that certain basic and general principles be included that are related to processes, rather than specific policies which could be addressed in secondary legislation. Table 4.3 provides some examples of options with regard to decentralization principles based on international experience that could be considered in crafting a new Constitution for Bolivia.

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Table 4.3. Constitutional Principles and Options for ConsiderationArea GOVERNANCE RULES

SovereigntyThe Constitution might state that both levels of governments are sovereign in matters of their competence. The list of their responsibilities is better left to secondary legislation, as it will change over time.

Elections

Rules determining the election of municipal councils, departmental councils, mayors and prefectos, should be laid down in broad terms, with a view to avoiding or minimizing conflicts and generating sufficient stability. The length of terms might be specified broadly: “from 3 to 6 years”, to be decided by specific subsequent laws.

Creation, suppression, separation or

mergers of subnational governments

Rules relative to the creation, suppression, separation or mergers of municipalities should usefully be laid down in broad terms. In many cases, cooperation may be an alternative to mergers, and the Constitution could make explicit reference to the possibility of creating mancomunidades or other groupings of municipalities.

National common rules in

accounting, reporting,

monitoring, compensation

The existence of strong and independent sub-national governments is not inconsistent with the imposition of national common rules in accounting, reporting, monitoring, and compensation policies. This should be stated explicitly in the Constitution, even though these rules would ideally be left to subsequent laws. Specific institutions, such as Courts of Accounts could also be referred to in the Constitution.

EXPENDITURE ASSIGNMENT

Defining responsibilities

The Constitution might usefully state that the three levels of government contribute to the provision of public services, and/or that municipalities are mostly responsible for services of local interest, departments for services of departmental interest and central government for services of national interest.64

Principle of Subsidiarity

The Constitution could make reference to the principle of subsidiarity, according to which services are provided at the lowest possible level, except when there are good reasons to provide them at a higher level.

Horizontal and Vertical

Cooperation

The Constitution should probably allow for horizontal and vertical cooperation in services provision, where ‘horizontal’ refers to cooperation between municipalities or departments and ‘vertical’ refers to cooperation between different levels of governments.TAXATION

Tax basesInasmuch as possible, departments and municipalities should have access to important tax bases. The tax bases allocated to departments and municipalities should be as immobile and as equitably distributed as possible.

Tax sharing The Constitution should probably not rule out the sharing of tax bases.

Tax rates The departments and municipalities should be free to decide the rate of their taxes (within national ranges).

Tax administration

Sub-national governments should be free to delegate tax base assessment or tax collection to other bodies

Coordination The Constitution could establish a coordination committee on tax issues with representatives from the 3 governmental levels.TRANSFERS

Entitlements A basic principle is that departments and municipalities are entitled to substantial and predictable transfers.

Types of transfers

A second principle might be that the system shall consist of both conditioned and unconditional transfers.

The distributing pool

A third principle to consider is that the total amount of transfers, in particular unconditional transfers, to be allocated is determined as a percentage of all national taxes and resources, although it is highly advisable to let that percentage be specified in secondary legislation.

64 In its comments on the CSA, the Government has indicated that it believes that, contrary to the option suggested above, the Constitution should establish a relatively detailed list of competencies for each level of government.

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Allocation Formula

A fourth principle relates to allocation formula. This can be different for departments and for municipalities.

Note: The Constitution should probably not include mathematical formulae, but it should indicate the objectives and possibly the criteria of such formulae. It should in particular explicitly say that formulae must be equalizing, that is that poorer entities should, all other things equal, receive more on a per capita basis than richer ones. It should probably be explicitly stated that these important criteria also apply to transfers based on hydrocarbon proceeds. These fundamental criteria to promote interdepartmental equity in Bolivia need not be the only ones stated in the Constitution.

Coordination The Constitution could create a Committee entrusted to examine the status of transfers regularly, to undertake analysis and to make recommendations. BORROWING

Right to borrowThe key principle is that subnational governments would have the right to borrow, but that central government would have the right to control subnational government borrowing.

Fiscal responsibility Subnational governments should be entitled to borrow only as much as they can repay.

ASYMMETRY

Differential Treatment

The Constitution should probably not enter into the detail of what differential treatment should consist of, but could include an article enunciating the legitimacy of differential treatment of departments and municipalities.65

Many of the decisions that Congress and the Executive will have to make each year related to the assignment of transfers, responsibilities and taxes are highly political and at the same time technical. Given their political content, it is important that the key principles be established in the Constitution. Similarly, in light of the technical content, it might be useful for decision-makers to count on the monitoring, analysis and advice of a Technical Advisory Committee on Decentralization—created constitutionally—possibly with sub-committees for specific topics such as departmental and municipal taxes, transfers, or sub-national borrowing, in order to follow up on these topics and evaluate or make proposals.

CONSIDERATIONS BEYOND THE CONSTITUENT ASSEMBLY

The ratification of a new Constitution will imply the need for follow-up actions in the short, medium and long term. These actions could begin by ensuring adequate implementation capacity and consensus building mechanisms to facilitate political dialogue and preempt potential conflicts (see the short, medium and long-term options outlined in Annex 4.2). Additional elements might usefully include a transparent financial management system that provides access to budget information to authorities at different levels of government as well as to citizens; human resource management tools to make the public wage bill transparent and to make staff recruitment and hiring transparent and competitive; transparent mechanisms for public procurement; and mechanisms to monitor and evaluate the quality of public services. The other priority would be to improve resource distribution through a restructuring of the transfer system. It is essential that hydrocarbons-based transfers be allocated to department and municipalities in a fair and redistributive fashion, integrating the majority of said funds in a transfer based on the central government’s total income in order to assure greater equity and less volatility in the amounts assigned to departmental and municipal governments. In addition some basic fiscal

65 In its comments on the CSA, the Government has indicated that asymmetric treatment provided for by the Constitution should ideally be related to the structure (i.e. degree of autonomy) and scope of competencies of both levels (prefectures and municipalities).

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responsibility rules, notably establishing limits on new departmental debt, would need to be put in place.

In the medium term, policies might focus on separating responsibilities among the national, departmental, and municipal levels to promote more accountability in each of the sectors. In addition the policies could focus on revising the funding formula for current services to provide incentives for improving quality and reducing inequalities, rewarding better management with greater transfers. In the longer term, additional responsibilities and resources might be transferred to departmental and municipal levels, including expanded tax-raising authority, and stronger inter-governmental coordination might be promoted.

A carefully designed decentralization policy can contribute to increased social inclusion. An ideal outcome of implementing policy options such as those identified above would be basic equity (or progressiveness) in resource distribution, and increased social accountability at the level of departmental governments to their citizens. To achieve these goals requires a clear strategy of sequenced measures that do not place the country’s finances at risk or impede the capacity of different levels of government to deliver public services. These could usefully begin with a Constitution that sets a clear and simple framework designed to facilitate orderly decentralization, and be followed by secondary, specific legislation that take into consideration the progress made, the changing aspirations of the citizenry, and previously unforeseen opportunities to achieve decentralization with inclusion.

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5. EQUITABLE ACCESS TO JUSTICE

INTRODUCTION

In a democratic system, the enforceability of rights and freedoms requires not only a legal and institutional order that ensures the prevalence of the “Rule of Law”, but the capacity to implement it as well. This requires a country’s norms and rules to be public, known and enforceable through competent, independent and transparent government bodies which guarantee and promote civil and political rights and allow free and equal participation of all citizens. The concept of Rule of Law is based on three fundamental principles: (1) the limitation of power, effected via the constitutional distribution of powers; (2) the principle of legality, by which government bodies are subject to the law, and (3) the declaration of fundamental rights. The ultimate foundation of constitutional rights is the possibility to turn to the judicial bodies in order for these bodies to ensure that such rights will be fulfilled.

The Constitution provides the basis of the Rule of Law. The fundamental organization of the state as well as its institutional and legal structure, are expressed in the Fundamental Law of the State or Constitution. Modern-day constitutions share some common political-philosophical principles which have inspired their contents, such as the sovereignty of the people, the separation of state powers or the ‘Rule of Law’,66 the preeminence of human rights, and democratic participation in public affairs so as to guaranteeing the enforceability of human rights and the rule of law.67 In order to protect human rights, the State must provide the appropriate mechanisms and resources for everyone to have access to justice so as to request legal remedies in case of disputes. The rule of law therefore necessarily places a major responsibility on the judicial system to reach all of the population and to offer an accessible, agile and impartial service.

ACCESS TO JUSTICE IN BOLIVIA

Bolivia has had nineteen Constitutions, although many of them were only amendments to previous texts. The constitutional evolution is the result of the adjustment to historical and political circumstances characterized by a succession of military coups affecting democratic institutions.68 Over time, there has been a progressive inclusion of socioeconomic issues and

66 Jacques Rousseau introduces the principle of the sovereignty of the people (cf. Rousseau: “The Social Contract,” Editorial Proyectos Anfora. SL Spain). Hobbes: It is the social pact which organizes society (cf. Hobbes’ “Leviathan,” published in 1651). Kelsen: The territorial space validates the state’s legal order (Kelsen’s “General Political Theory,” Editora Nacional. México.1975). Montesquieu: The formation of the State through three powers: Legislative, executive and judicial (cf. Enrique Sánchez Bringas. Derecho Constitucional, Editorial Porrúa. México DF. 1999, fourth edition).67 H. Mansilla: Para entender la Constitución Política del Estado. National Electoral Court, Republic of Bolivia. First Edition, March, 2005. 68 The Bolivian constitutional evolution began with the Republic’s General Constituent Congress of 1825-26, which was a founding entity and was shaped by three main influences: the United States Constitution of 1787, which contributed with a central conception of a presidential (as opposed to parliamentary) system and division of powers; the 1812 Spanish Magna Carta, known as the Cadiz Constitution, which laid out the general structure of the text its terminology, style, and it acknowledgement of Catholicism as the official faith of the country; and the French juridical doctrine that helped to introduce the concepts of human rights and citizenship, the unitary composition of the state (including the prefectual-departmental regime), and the ideas that inspire civil rights and the penal code (later known as

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human rights in the Constitutions. During the first Bolivian constitutional and political stage, the 1880 Constitution stands out for its clarity and structure, and its persistence in time. The 1938 Constitution referred to social rights for the first time, acknowledging and protecting labor and related benefits as full rights which cannot be waived by workers and employees. The present Constitution has added the recognition of indigenous rights within a multi-ethnic, pluricultural state and has acknowledged indigenous common law not only as a source of law but as an inherent right of the state, and has thereby also admitted for the first time the existence of organs with rule-of-law powers other than the three traditional branches (legislative, executive and judicial).

The structure of the Judicial Branch and its organization were also strengthened after 1994, in an effort to make judicial services more efficient and independent. The changes included the creation of the Constitutional Tribunal to resolve proceedings on constitutional rights and guarantees,69 the Ombudsman to receive and follow up on citizens’ complaints, the Judiciary Council (Consejo de la Judicatura) to separate administrative from judicial functions and to heighten disciplinary controls, and the redistribution of land-related administrative and judicial functions to national and subnational Agrarian Tribunals. In addition, the principle of judicial independence was expressly stated in the Constitution, the sector was granted economic and administrative autonomy and security of tenure for magistrates and judges, as well as modified procedures for appointing Supreme Court justices. Finally, a revised Criminal Procedural Code was implemented, which included a change in the model inherited from spain—in which the judges investigated the cases based above all on written evidence—to the accusatory model that is defined by oral trials and by the presence of judges who serve as independent arbiters between the prosecuting and defence functions. These reforms attempted to implement constitutional guarantees and international conventions with the goal of reducing the violation of due process. The new system represent an improvement in terms of transparency and access to justice as it opened the procedures of the court to the public and reducecd the costs and case times. On the other hand, the system still faces major challenges related to the institutional changes needed to consolidate the transition from the old inquisitional system to the new accusatory model.70

In spite of the reforms and modifications implemented, and some successes, Bolivians continue to face obstacles in securing accessible, agile and impartial justice.71 The Constitutional Tribunal has been praised for its defense of constitutional rights and the Ombudsman has gained important credibility, especially as a neutral mediator, in its first few years, whereas the Judicial Council has not gained public confidence due to bureaucracy and lack of transparency, and there has been at least initial resistance in the judicial branch to switching to the new penal procedures. The challenges are reflected in inadequate services, insufficient economic resources, delays in judicial proceedings, and a perceived lack of independence and transparency of the justice sector:

the Napoleonic Code). All the institutions since 1825 have had a marked presidentialist, centralist, and unitarian, system derived from the French constitutionalist tradition. 69 For example, in 2004 the Tribunal supported the jurisdiction of a civil court over a case that involved alleged armed forces killings, and established that the alleged perpetrators of human rights violations cannot be tried by military tribunals, according to the Bolivian Constitution and the jurisprudence of international courts.70 Ministry of Sustainable Development. Proyecto de Reforma Institucional: Justicia Para Todos La Paz, Bolivia. January 2004. 71 In its comments on the CSA, the Government has expressed the view that the CSA’s epistemological framework does not question the colonial nature of the justice system, focusing essentially on institutional features of judicial reform. The Government indicates that the approach taken in the CSA simply reforms, instead of transforming via a consideration of the role of a plural, multinational justice system in a social, communitary state. Thus the Government indicates that its objective in the area of justice goes further than the present analysis, namely to de-colonialize justice.

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The average number of inhabitants per court in Bolivia is 12,405, which implies one of the lowest levels of coverage in the region.72

The share of municipalities without courts ranges from 27 percent in the department of Tarija to 68 percent in La Paz and 80 percent in Pando.

Processes are cumbersome: Bolivia still has the highest number of process steps (47) and days of delay (591) in enforcing a loan in the Andean region.

Both the justice system and the police have inadequate financing. The regional distribution of police forces fails to take into account the crime index. For

example, the department of Santa Cruz has the highest crime index but the lowest number of police officers per inhabitant.

Delays in justice mean that Bolivia’s prisons are overcrowded.73 A large proportion of the prisoners in Bolivia are detained without sentence under

“preventive imprisonment” which undermines the principles of habeas corpus and the presumption of innocence. This practice disproportionately affects the less privileged and in some countries has been subject to political manipulation. It is alleged that as much as three-quarters of the prison population in Bolivia may be detained without due sentencing.74

The judicial branch is the weakest of the three main state powers, and is regarded as unable to resist pressure from the executive and legislative branches, and unable to condemn members of the political and economic elite for corruption;75 indeed, political party interests have often delayed the appointment of justices.

Over 4,500 charges were pressed against judges and administrative staff during 1998-2001, of which only three percent resulted in any penalties.

Vulnerability of the judicial sector to politcal pressures affects the public perception of the impartiality of the justice system. The judicial sector is considered to be closely linked with the elites. The bias of image and legal incompliance is asociated to the strong perceptions of corruption and the lack of adequate trasparency. Surverys reveal that Bolivia is among the countries of the region with the lowest perception of court impartiality and transparency, and with a low index of perception of compliance with the Law (see Figures 5.1 and 5.2). Moreover, the limited number of people tried for acts of corruption (see the numbers presented for 1998-2001) generates an image of impunity and lack of control of corruption. Lastly, the inadequate training of judicial system employees influences the public perception of the judicial branch, while in some cases the inadequate salaries can influence the vulnerability to corruption. The Bolivian State has ratified the Inter-American Convention against Corruption, and has formulated draft legislation in relation to conflicts of interest and the inclusion of new crimes in the Penal Code related to the corruption of public officials. It is important to build on these initiatives to strengthen state institutions.

72 Ibid.73 The Center for Justice Studies of the Americas, CEJA, reports that as of 2003, the penitentiary system had a capacity of 2,895 places but that the detainee population was 6,547. 74 See the coverage of this issue in Los Tiempos, January 4 of 2005.75 As indicated in Transparency International’s Global Report on Corruption (see www.transparency.org).

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Figure 5.1. Perception of Legal Compliance (2005) Figure 5.2. Survey Question: Do Courts act transparently and impartially?

Figure 5.1. Perception of Legal Figure 5.2. Survey Question:Compliance (2005) Do Courts act Transparently and Impartially?

Source: Latinobarometro (2005) Source: Justicia Viva (2001)

The inadequate justice and security services provided by the state have led to many instances of Bolivians taking justice into their own hands. Taking justice into their own hands highlights the high potential for conflict that arises in the absence of adequate investment in ensuring swift and equitable justice. In this regard, it is worth emphasizing that the lynchings do not reflect community justice, but rather, quite the contrary, they reflect an absence of justice in general.

The broader access challenges are aggravated by discrimination. Social exclusion can arise due to discrimination on the basis of gender, ethnicity, race, geographic origin, disability, age, religion, sexual preferences, among other factors. For example, in the case of indigenous people, access to justice is complicated at an individual level by remoteness from municipal courts, with time and transport costs also representing a proportionally greater part of their income. Moreover, higher illiteracy rates and less proficiency in Spanish create barriers to access for those whose first language is a native language. These challenges drive home the importance of consolidating common law justice within the rule of law. The difficulties at the individual level are compounded by inadequate support for the legal rights of native peoples at the collective level, for example in relation to consultations on exploitation of natural resources in their lands, or legal protection against invasions of their lands by loggers. Consequently, the lack of access to justice triggers a series of social conflicts.

Women in Bolivia suffer significant discrimination. For example, women represent 50.2 percent of the Bolivian population, but their presence in decision-making realms remains extremely low, even though an affirmative action Law on Quotas has contributed to increases in political representation since the early 1990s. Bolivian Law 1674 (1995) against family or domestic violence, has been virtually useless: since its approval, only five attackers have been put in jail, in spite of statistics showing that as many as seven out of ten women in the country are beaten or sexually abused.76 One example of highly gender-insensitive legislation that can be cited is the regulation of sexual violence in Bolivia’s Penal Code. Article 317 establishes that the attacker will not be penalized if he decides to marry the victim. The idea underlying the norm is

76 See the data at http://www.cladem.org. Bolivia’s National Statistics Institute (Instituto Nacional de Estadística) indicates that 53 percent of women surveyed for the National Demographic and Health Survey of 2003 reported suffering physical or sexual violence at the hands of their partner. The ratio rises to 64 percent when emotional violence is included.

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Perception of Legal Compliance (2005)

5.1

6.3

6.1

5.9

5.8

4.5

4.4

4.4

4.1

3.9

0 2 4 6 8 10

America Latina

Uruguay

Colombia

Chile

Venezuela

Bolivia

Brazil

Peru

Paraguay

Ecuador

Perception SurveyDo Courts act transparently and impartially?

1.8 26 7.1

11.4 13.2 13.320.9

30

39.6 42.8

0

10

20

30

40

50

evident, in that sexual rape is considered an offence to the victim’s “honor” but not to her integrity, as stipulated by international standards regarding this issue.

INTERNATIONAL EXPERIENCE IN RELATON TO ACCESS TO JUSTICE

International experience offers a series of lessons in legal and judicial reforms to strengthen access to judicial services. Above all, the preservation of the Rule of Law mantains a close relationship with the control of constitutionality developed by the Judicial Power, which should have the power to invalidate the acts of the other powers of the state if these are unconstitutional. Moreover, the Judicial Power must administer justice in an agile and efficient manner. A notable example of reforms to administrative justice is Singapore (1988-1993), which reduced the number of cases in process in the Supreme Court by more than 90 percent in less than two years. Similarly, the waiting time as well as the admission of cases by judges was reduced from five years to four months. Singapore reformed its judicial system progressively, starting with administrative functions and then moving to case management and appeals, training of judges and tribunals personnel, modifying the internal structure of courts of justice by creating panels of two judges to hear appeals, introducing night courts and restructuring the administration of tribunals.77 In Germany, the “Stuttgart Model” introduced a simplified civil process, whose main objective was to reduce the number and duration of the several audiences and steps involved in the procedure to simply two stages: instruction and resolution. The result was an 80 percent reduction in the share of share of cases lasting over one year (from 33 percent to 7 percent). Ecuador’s reform of the process for expediting justice resulted in the separation of judicial activities from merely administrative ones. This separation, together with computerization and reconstruction of the courts to insulate judges, allowed judges to concentrate their time on judging, which sharply reduced the backlog of cases.

International experiences related to justice and social inclusion also offer valuable lessons for consideration. The constitutional acknowledgement of community justice provides a basis for indigenous common law justice mechanisms that help to overcome geographical barriers, imply low economic costs and use the locally predominant language.78 Most Andean constitutional language is similar in this area, although where Colombia, Peru and Ecuador refer to “authorities,” the Bolivian and Venezuela Constitutions refer to “natural authorities” and “legitimate authorities,” respectively, thereby guaranteeing more explicitly that such authorities are appointed with community support (see Annex 5.1). Another important issue is related to the legal boundaries of the traditional justice applied by the community. Thus, while the Peruvian Constitution establishes the fundamental rights of a person as the limit, other Andean countries regulate this issue more restrictively—Venezuela even establishes “public order” as the limit. In this regard, ensuring coordination between the special jurisdiction and the ordinary system of justice is important, although this follow-up legislation is rare. For example, in Venezuela an Organic Law of Indigenous Peoples and Communities, expected to regulate the constitutional norms in this matter, has not yet been approved, while similar efforts were vetoed or found unconstitutional in Ecuador.79 77 Malik, Waleed 2003: Development Economics on Judicial Reform: International Experiences and Ideas for Latin America. Mexican Journal of Justice. Available at: http://info.juridicas.unam.mex 78 In its comments on the CSA, the Government has indicated that it views community justice not only as a means of promoting access to justice but more importantly as a process of free determination by indigenous peoples and a means of de-colonizing juridical knowledge and jurisdictional practices. 79 In the Ecuadorian case, two widely revised laws (Law of Indigenous Peoples Collective Rights Enforcement, 1998, and the Law of Compatibility and Competences Distribution in Justice Administration 1999), were vetoed or declared unconstitutional because of their erroneous interpretation of the equality principle among people, leaving the country without any legal regulation of the constitutional norms on communitarian justice.

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The Colombian case is interesting, since the jurisprudence of the Colombian Constitutional Court has recognized but set limits on traditional justice, thereby serving in practice as a substitute for this coordination law. The Court has signaled that “the nucleus of inalable rights will include only the right to life, the prohibition of slavery, and the prohibition against torture.” Sanchez Botero (2005) highlights that the minimum judicial norms established by the Constitutional Court are considered obligatory for all Colombians, including indigenous authorities that proposed certain changes in their customs in this regard. 80 In any case, a coordinating law should not be understood as regulating traditional justice, nor should the validity of constitutionally recognized traditional justice depend on the issuance of such a law.

In the case of gender, the Vienna Declaration corresponding to the 1993 Second Conference of Human Rights provides an important benchmark for women’s rights. The Declaration affirms that: “human rights of women and girls are an inalienable, integral and indivisible part of the universal human rights. Full participation of women, in equal conditions, in politics, civil, economic, social and cultural aspects at national, regional and international levels and the eradication of all forms of discrimination based on sex are priority objectives of the international community”81 A review of constitutional texts for countries in Latin America suggests that all include the principle of non-discrimination and equality under the law for all their citizens (see Annex 5.2). Some constitutions include an effective recognition of a gender perspective, for example Ecuador’s Constitution (of 1998, Art. 67) requires the state to “promote gender equality” in education, while the Costa Rican Constitution (of 1949, Art. 95) prohibits gender discrimination in the nomination of candidates for political office. While the Bolivian Constitution also recognizes the importance of affirmative action in relation to public participation, it would be convenient to reinforce this general disposition through more specific measures.

In terms of the use of language, most Constitutions in the region use neutral language (e.g. “all”, “nobody”), which reinforces the invisibility of differences between men and women. It must be noted the 1999 Constitution of Venezuela is a good example of inclusion as it specifically refers to Venezuelans and to public office holders, including the President, in the masculine and feminine tense.82 Finally, in terms of economic, social and cultural rights, the Colombian Constitution provides an interesting example since it recognizes equality among women and men in relation to rights and opportunities in the family environment, and establishes that the state will especially support woman head of household.

CONSTITUTIONAL PRINCIPLES AND OPTIONS FOR THE CONSTITUENT ASSEMBLY

A range of constitutional principles emerge from Bolivian and international experience for consideration in the Constituent Assembly. These principles can be divided into four key areas: strengthening of the judicial system and the rule of law so as to ensure improved access to

80 See Sánchez Botero, Esther 2005: Reflexiones en torno de la jurisdicción especial indígena en Colombia . Revista IIDH, Vol. 41, p. 228-229 and Assies, Willem 2003: “Territorialidad, indignidad y desarrollo: las cuentas pendientes”, Paper prepared for the Third Week of International Cooperation and Solidarity: Latin America, Toulouse, France, November 18-22.81 Vienna Declaration an Action Program, Human Rights Conference from June 14-25, 1993, paragraph 18. The adoption of the term ‘human rights’ replaced the term ‘rights of man’ used during the 1940s.82 Hayes, María Yamile, Political Constitutions and Gender. Comparative Analysis in Latin America, Seminar within the Project “Democratic Governability and Gender Equality” framework, CEPAL, Santa Cruz de la Sierra, February 21-23, 2005, following website visited on May 23, 2006, p. 3-4: http://www.cne.org.bo/proces_electoral/constituyente2006/eventos/genero_reforma.pdf

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ordinary justice for all citizens; recognition of traditional community justice in the Constitution; strengthening of gender equity; and consolidation of human rights via principles of equality and non-discrimination. The key principles are summarized in Table 5.1.83

Table 5.1. Constitutional Principles Related To Access to Justice, for Consideration by the Constituent Assembly

A. Principles for the strengthening of the judicial system and Rule of Law

Establishment of selection, appointment, and promotion processes for judges and magistrates conducted through public, transparent processes, via a merit-based system.

Availability of control mechanisms and systems for judges and magistrates, as well as for administrative staff, so as to reduce perceptions of corruption in the judiciary among Bolivian society.

Simplification of judicial mechanisms and processes in order to accelerate cases and the consolidation of an effective and fast system of executing sentences.

B. Principles for access to justice and social inclusion through traditional community justice

Inclusion of the commitments ratified in ILO Convention 169 in relation to traditional justice at the constitutional level

Recognition of special justice at the constitutional level, with revocation only by another constitutional norm and not by secondary or tertiary legislation or other disposition of a lower legal hierarchy84

Reference to the limitations in the applicability of special justice in the Constitution and establishment of the need to issue a subsequent coordination law – in accordance with the ILO 169 Agreement.

Acknowledgement of the flexibility of indigenous justice in the norms governing indigenous law at the constitutional level.

C. Principles for the inclusion of gender issues in the Constitution

Enhanced recognition of gender equality at the constitutional level.

The use of equal language.

Prohibition of domestic violence: an important principle for consideration by the Assembly is that every woman has a right to a life free of violence, and that there is a need for the state to take the necessary measures to prevent, eliminate and penalize gender violence.85

Broadening of spaces for gender equality, from the exercise of political, social, economic and cultural rights to include sexual and reproductive rights as fundamental rights.86

D. Principles of equality and of non-discrimination

As broad a constitutional protection against discrimination as possible, by considering each human being as an equal and broadening the protections established particularly in Article 6, including for such reasons as sexual orientation, ethnic origin, disability, gender, age, religion, creed, among others.

Inclusion of a definition of discrimination based on international treaties in the matter ratified by the State.

83 In its comments on the CSA, the Government has indicated that it considers additional elements to be fundamental, including among others the popular election of national and regional judges, auditing of processes, temporary and permanent suspensions, protection of social, collective and (indigenous) peoples’ rights via the Constitutional Tribunal.84 Ruiz Molleda, Juan Carlos 2006: “El acceso a la justicia como Política Pública: ¿Dónde está la novedad?” In: Jurídica. Legal Analysis Supplement of the official newspaper El Peruano. Year 2. No. 91. p. 8.85 Montaño, Julieta. “Gender and Constitutional Reform”, Seminar under the project for “Democratic Governability and Gender Equality,” CEPAL, Santa Cruz de la Sierra, February 21-23, 2005, see http://www.cne.org.bo/proces_electoral/constituyente2006/eventos/genero_reforma.pdf p. 6. 86 Montaño, Julieta: Ibid.

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CONSIDERATIONS BEYOND THE CONSTITUTIONAL ASSEMBLY

Beyond the Constituent Assembly, enhancing the reliability and efficiency of the ordinary justice system is a clear priority in order to improve social inclusion via better access to justice. This includes reviewing the allocation of economic and logistic resources among justice sector operators on the basis of results-driven objectives (for example, reassigning administrative staff to the areas with the greatest back-log based on monitorable indicators, or police on the basis of the prevalence of crime), and strengthening alternative conciliatory mechanisms within ordinary justice such as arbitration. In addition, the new Penal Procedure Code and the introduction of the accusatory system also warrant full integration into the Penal Code by modifying the latter.87 The role for civil society oversight and for linkages between the justice system and the Integral Citizen Security National Plan can also be expanded.88

In order to ensure the integration of ancestral justice within the framework of the Rule of Law, a favored option would be a coordination law on this matter. A law on traditional community justice must be oriented towards the resolution of possible conflicts arising between special justice and ordinary justice, and be broadly consulted with indigenous communities. A consequence of the passage of such legislation would be an immediate need for training of operators in charge of delivering community justice, and judges, magistrates and members of the legal profession on the application of special justice.

In relation to gender perspectives, the key challenge is not so much the approval of new legislation as the enforcement of existing legislation. It is important that the State be committed to the enforcement of the existent legal framework, even more than the creation of new regulations. Another area of work is related to training of justice sector operators as well as members of the police force, both on laws and regulations and on gender analysis and the eradication of prejudice and stereotypes which hamper the effectiveness of the legislation. A further important component of a longer term program is adequate monitoring of state institutions that deal on a daily basis with cases of violence against women, including for such purposes, police offices, juries and prosecutors offices, inter alia. In the same vein, capacity building is required among persons who administer special justice in indigenous communities to raise awareness of gender rights, possibly in collaboration with indigenous and farmer women’s organizations. Attention to gender equity and non-discrimination should, finally, be applied transversally in economic, political, social and other spheres, and particularly to ensure equal opportunities for indigenous and peasant women, who are among the most vulnerable women in the population.

87 The reform of the penal process justice in Chile offers some interesting lessons. The regional administration of the country served as a territorial base for the gradual implementation after 2001, starting from the interior of the country towards the capital. The most important changes that resulted from the reform include the following: the jurisdictional work of judges was emphasized and judges were relieved of their administrative tasks; the process of selection, nomination, control and removal of judges was modified; the methods for building capacity among judges was modified; a new organizational structure and a new system of case assignment were established; the disciplinary regime was changed; and the judicial budget was slowly increased. The acknowledgement of the importance of the Justice System for the quality of the country’s development and in the functioning of the economy and the markets has been a fundamental factor in the progress and success of the Chilean judicial reform.88 The principles of capacity building and strengthening of the efficiency and transparency also extend to other actors of the Justice Sector, such as the National Police. For example, the National Police force can be supported through a system of monitoring and tracking of indicators at the national level, subject to public scrutiny, in order to determine the assignment of its limited resources. The knowledge acquired from the international experience on police reform, including the well known cases of reform such as the New York Police Department in the 1990s and similar experiences in Colombia, might be useful for the development of a Bolivian process for police reforms.

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6. CLOSING CONSIDERATIONS

This Country Social Analysis has attempted to provide an understanding of selected key challenges facing Bolivia, looking to their roots in the history and institutional structure of the country to derive a series of findings for consideration. The CSA began with a quick review of the lay of the land, the structure and location of its population, and some of the defining moments and trends in Bolivia’s history that shaped the country, and that are at the roots of the present challenges that Bolivia faces. The CSA found enormous social diversity in terms of access to assets—whether physical, financial, or social—and access to opportunities, especially human capital development. This diversity manifests itself across class, ethnic, gender, regional (western/eastern) and geographic (rural/urban) divides. The CSA briefly outlined some of the structures of governance and power that explain the persistence of extreme inequality over time, and the consequent conflict and lack of social cohesion, and highlighted the possibility for dialogue and to work towards refounding the republic on the basis of a new social contract via a Constituent Assembly.

Thereafter the CSA turned to the four main themes of the analysis, which are likely to arise in the deliberations of the Constituent Assembly, namely: indigenous rights; land and territory; decentralization, including the assignment of hydrocarbons royalties; and access to justice. At the core of these issues are basic citizenship rights and human rights, access to key assets, the distribution of the nation’s wealth, and the structure of the state. For each of the four key themes, the CSA offered a diagnosis of the Bolivian context and examples of relevant international experience, with a view to distilling some key principles that might be considered by the Constituent Assembly, as well as options for a sustainable program to strengthen social inclusion and cohesion in these areas beyond the Constituent Assembly. The Country Social Analysis leads to a range of important findings and concluding considerations:

The social exclusion and absence of social cohesion observed in present-day Bolivia have their roots in Bolivia’s colonial history, and while the country’s institutional transformation has been substantial over time, it is still incomplete. Bolivia has made significant progress over time in increasing equality of opportunity in the political transition from the colonial “Two Republics” system to the “multi-ethnic, pluricultural” republic described in the 1994 Constitution. Many of the shocks to the exclusionary system established during the colonial era—closed as it was—came not from inside but from outside factors. These shocks to the system (via, for example, changing trade patterns, wars, and global ideas and ideologies), whittled away institutions that had long promoted social exclusion, with a more defined break taking place in the 1952 revolution. Nonetheless, the transformation is incomplete, and the consequences of those exclusionary institutions are still highly visible today.

The socioeconomic data presented in this CSA and in countless other studies of Bolivia document highly unequal outcomes that derive from highly unequal opportunities, in terms of access to assets (including via public services) and to human capital development. Many of Bolivia’s poorest were not registered at birth and do not have the basic identity documents to participate as full citizens in society. Education quality and quantity are unevenly distributed, so that the system produces plentiful unskilled labor and limited skilled labor. Returns to education

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are even lower for indigenous people than for others with the same level of education. 89 In addition, the combination of unequal land assignments to elites in the eastern lowlands in recent decades and the unequal assignment of hydrocarbons rents at the departmental level create the risk of replicating the historically inegalitarian national structures at the sub-national level, and of deepening inter-regional and intra-departmental inequities.90 The combination of inequality with lack of social mobility means, for example, that if you are an indigenous person born in rural areas of Bolivia, you have a 70 percent chance of living in extreme poverty and you have very little chance of escaping that poverty, and nor do your children.

The colonial era also gave rise to cultural perspectives in relation to the state that are still prevalent today and that complicate social inclusion and cohesion. Throughout Bolivia’s history, a consistent thread has been the notion that the state is the great provider, whether it is subsidies for business elites or jobs for the poor. The historical rent-seeking by Bolivian mining and landowner elites set an example that has been widely—although not universally—followed to this day in the country’s business community and social movements.91 Indeed, the state’s key historic role in distributing rents paternalistically, and at times venally, (first from silver, later from tin, now from oil and gas), has meant that interaction with the state is critical, not just as individual citizens but as corporate groups (e.g. civic committees, trade associations, workers’ unions or peasant organisations), in order to capture rents and defend interests against other groups. Political interaction with the state structure is often seen as at least as important as competitiveness in the marketplace to achieve economic gains. This sets the stage for pervasive social conflicts (e.g. over access to assets like land and hydrocarbons rents) unless delicate, temporary equilibria can be achieved through “pactos” or agreements. Clearly, democratic institutions have been put in place in a context in which the foundations of civic education, informed votes based on issues rather than personalities, and recognition of citizen responsibilities (e.g. tax-paying) in addition to citizen rights, are not deeply rooted. There is in fact a heritage of claims being made against the state through uprisings in the face of repression, and through claims for particular interests (rent-seeking) rather than actions designed to promote the general good—and in this context, justice and the guarantee of basic rights are not equally available to all. These legacies make it that much harder to achieve social inclusion and cohesion.

The challenge is to forge a truly democratic state characterized by good governance that promotes more equal opportunities and therefore greater social mobility for its people. Pressures for change and social mobility have not come without social conflict, yet such change is essential to ensure the welfare of all Bolivians. The current generation of Bolivians is earning the same real income per person as their grandparents did in the 1950s. Progress in reducing

89 More details can be found in Hall and Patrinos (2006).90 The country’s topography and distribution of natural resources could reinforce inter-regional inequality. The most fertile lands are in the humid valleys and in parts of the eastern lowlands, as are the country’s natural reserves of oil and gas. The Altiplano is increasingly characterized by soil exhaustion, while silver and tin mining have declined in importance. Thus a large share of the poorest population is physically located far away from the greatest economic opportunities, and the state, which has historically not been effective in redirecting the nation’s wealth towards the poor, is in a weak position to do so at this time. People from the highlands are therefore migrating east, changing the social and political demographics of the lowlands. This has the potential for economic growth and generation of opportunities if this is managed well through coordinated national and subnational policies, but it also has a potential for conflict and urban poverty if the new arrivals do not find sufficient land or jobs.91 Qualitatively, there is a distinction to be made between those in the social movements who want to be the new elites in the system versus those who want to achieve a more democratic and just system and who are perhaps the true change agents that warrant support. International NGOs have been roundly questioned for supporting profoundly undemocratic social organizations simply because their members are poor.

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inequality can accelerate growth that would benefit rich and poor alike.92 The challenge is to develop state institutions that promote equality of opportunity and greater social mobility through improved education, access to technology and services, and strengthened social accountability mechanisms that ensure the rule of law. Civic oversight and transparency could be enhanced by strengthening the channels and processes established at the municipal level and extending them up to the departmental and national levels, so as to ensure that public sector incentive mechanisms are improved and that public authorities ensure due process. Assurance of the rule of law and predictability of institutions are essential to reduce risk and encourage greater investment and growth. Failure to achieve such growth would entail significant risks for the stability and security of the country, not least because Bolivia’s population pyramid is such that in the next decade its largest generation of youth will be entering secondary education or the labour force, and if neither opportunity is available to them, the country could create a large at-risk youth population that would be fertile ground for increased crime and violence.

The bold initiative of a Constituent Assembly together with the results of the referendum on autonomy, when set against Bolivia’s historical backdrop of conflict and social exclusion, represents an important if risk-laden moment in the country’s effort to achieve lasting social change. The objective that is being set for the Constituent Assembly in the public eye is to re-found the nation to promote social justice. This could mean addressing the need to set aside the idea of particular privileges for particular groups, which has long characterised political interaction in Bolivian society. The constituent process, with its unrivalled opportunity to promote social development in terms of increased social inclusion, cohesion and accountability, runs a number of risks that could undermine this effort. The first is the potential for deadlock over the above issue of acquired privileges. A second risk is a break in the dialogue if stakeholders adopt intransigent positions regarding policy differences and if they hope to impose points of view without achieving consensual solutions. In addition there is the possibility of potential frustration driven by unrealistically high expectations that are not met, or public concerns about private deals in the constituent process undermining the opportunity. Any of these risks can lead to failures in the process or to a de-legitimated Constitution that has little probability of enduring over time. Clearly significant information sharing, continuous dialogue and full transparency in the process will be essential for success.93 Finally, the risks extend not only to the constituent process during the coming year but also to the later transition to a new constitutional framework after the Assembly’s work is complete—the Venezuelan experience in 1999 is illustrative in this regard.94

The work of the Constituent Assembly could usefully maintain as a guiding principle the promotion of increasing equality of opportunity and the rule of law, even—and indeed especially—in areas in which consensus may be difficult to achieve. This would best be served by building consensus to the extent possible around core principles that might be expressed clearly and simply in the new Constitution, drawing on both Bolivian values and international

92 More details can be found in the LAC Flagship Report on Poverty Reduction and Growth – Virtuous and Vicious Circles, Washington DC, 2006.93 For example, the 1991 Colombian Constituent Assembly offers a number of interesting lessons, starting by the fact that the Assembly opened with a round of initial presentations by each delegate in order to value each opinion and to establish a basic social capital for dialogue. The experience demonstrate also that ideologically opposed groups such as the political right and former guerrilla fighters could find common ground and even forge alliances over specific issues (such as opening political opportunities beyond established parties). Broad information and coverage and the importance of making concessions in certain areas to achieve goals in other areas were clearly further key elements.94 As soon as the Venezuelan Constitution had been ratified by referendum, the Constituent Assembly approved a Transition Regime for Public Power to the new state structures established in the Constitution, but in doing so the Assembly ascribed undue powers to itself in terms of scope and duration, and endorsed changes in the membership of key judicial and other positions via procedures that contrasted with the provisions of the newly approved Constitution.

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experience. There are considerable economic opportunities for the entire country if it is successful, and important risks if an environment conducive to growth cannot be achieved. This Country Social Analysis has offered some examples of options and principles in some key areas that aim to promote social inclusion and cohesion. For example, in the case of decentralization, core principles could be set out with regard to governance rules, expenditure assignments, taxation and transfers, and sub-national borrowing, whereas in the case of indigenous rights, a core set of cultural, territorial and self-determination rights might warrant consideration. In all cases, further elaboration of details would be warranted in secondary legislation together with institutional adjustments to implement the principles agreed under the new Constitution.

While the process of establishing a new social contract is a profoundly Bolivian process, there is a role for the international community to play in supporting the process and its aftermath. This role could involve providing substantive and detailed, relevant information to the authorities and to the general public in the run-up to the Constituent Assembly and during the constituent process; assisting the authorities and Assembly members upon request with analysis of proposals in terms of technical factors such as coverage and costs, as well as benchmarking information. The main objective of this report is to provide an information base and technical support for consideration at this historic time regarding the four key themes that were discussed. Upon the approval of a new Constitution, there would be the need for significant legislative and institutional reforms whose implementation may require technical and financial assistance. Moreover, continuing support is warranted for programs in Bolivia that promote social inclusion and equality of opportunities, e.g. in areas such as human development, rural infrastructure, broader access to finance and technology, technically sound principles for decentralization that promote equitable and efficient use of public resources, access to justice, and strengthening of indigenous rights and development opportunities that respect cultural identity. Finally, support in the area of governance and social accountability so as to strengthen transparency and the rule of law, would help to set the foundations for a dignified, just and productive Bolivia.

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ANNEX 1.1 - SOCIOECONOMIC INEQUALITIES IN BOLIVIA

The present analysis provides a synthesis of an in-depth socioeconomic analysis, based on the following sources of primary information. The various sources of primary information include the National Institute of Statistics (INE), the Economic and Social Policy Analysis Unit (UDAPE), the National Institute of Agrarian Reform (INRA), the Vice-Ministry of Public Investment and External Financing (VIPFE), and the Ministries of Health and Sports (MSD), and Education (ME) among other public sector institutions.

A database was constructed by issue, with a departmental and municipal focus, depending on the subject matter. Tables, graphs, and maps were prepared, showing the different variables and indicators selected in the previous point. The criteria for selecting variables included the analysis of a simple correlation among several variables and the relevance of others to show the situation of rural/urban inequality, poor and non poor populations, indigenous and nonindigenous populations, and regions between the Western (Occidente) and Eastern (Oriente) parts of the country. Information contained in the National Population and Housing Census (2001 Census), “Poverty and Inequality in Bolivian Municipalities (UDAPE, INE 2006), “Human Development Index in Bolivian Municipalities” (UDAPE, INE 2004), and information provided by various public institutions were used to prepare the population and physical maps. The third part, Social Diversity in Results and Opportunities, is based on the 2001 Census.

The poverty indicator corresponds to the Incidence of Poverty under the High Poverty Line classification in the 2006 Income Line (Consumption) estimated by INE and UDAPE in the document, “Poverty and Inequality in Bolivian Municipalities (UDAPE, INE 2006).95 The concept of indigenous self-identification is drawn from 2001 Census data that establish the percentage of the population age 15 or older who identify themselves with any Indigenous or Original People (IOP).96 The classification by geographic zones of municipalities considers the following zones: Altiplano (La Paz, Oruro, Potosí), Valleys (Cochabamba, Chuquisaca, Tarija), and Lowlands (Santa Cruz, Beni, and Pando). The regional classification considers the Western region to be composed of the departments de La Paz, Oruro, Potosí, Cochabamba, and Chuquisaca; the departments of Santa Cruz, Beni, and Pando constitute Bolivia’s Eastern region; and the department of Tarija was not classified in any the above regions due to its unique characteristics. Information at municipal level encompasses 313 municipalities, since complete information is not available for a number of recently created municipalities and others presented gaps in certain variables.

The descriptive analysis of maps and tables considers the following classification (Table A1.1) of municipalities, based on the combination of variables of poverty and self-identification as indigenous or first peoples. In particular, all municipalities are classified into four categories based on their poverty rates and indigenous presence, ranging from Category A which refers to those with the highest rates of poverty and the highest rates of self-identification as indigenous, to Category D which refers to the least poor municipalities and a lower indigenous presence.95 For purposes of simplicity, this indicator was utilized to determine the number of poor people existing at a determined time, instead of the gap or severity of poverty that other concepts describe. Likewise, for purposes of this document poverty indicators such as line of low poverty or line of extreme poverty were not considered. The Unmet Basic Needs (UBN) indicator was not considered because it is associated more with a structural poverty indicator.96 Indicator recommended by the Latin American Meeting of Statistical Institutions held in October 2002.

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Table A1.1 Categories of Municipalities According to Poverty and Indigenous Self-identification

Category of Municipalities Variables percent Number

AIncidence of poverty 75% or more

177Indigenous self-identification 75% or more

BIncidence of poverty 75% or more

64Indigenous self-identification 0 to 100%

CIncidence of poverty 50% to 75%

68Indigenous self-identification 0 to 100%

DIncidence of poverty 25% to 50%

4Indigenous self-identification 0 to 75%Total 313

Source: Calculations made by the World Bank, based on information of the 2001 Census

The maps in Figures A1.1 to A1.4 offer information concerning the topography and road and rail interconectivity, illiteracy, infant mortality and access to to electricity, always in relation with the incidence of poverty and indigenous self-identification according to the four municipal categories. Tables A1.2 to A1.4 also present information on access rates to services (electricity, secondary education, number of light posts, or health centers per 10,000 inhabitants) for each municipality. Once more, municipalities are classified in the four categories described in Table A1.1, in order to portray visible correlations between poverty, indigenous presence, geographical location, and access to services. The following summary, based on a wider socioeconomic analysis (utilizing oficial data of previously mentioned sources that for matters of space have not been entirely included in this report), hightlights some important results:

The country’s Eastern departments have an average per capita product level (income) that is 1.2 times higher that that earned in the Western departments. Likewise, the average income of a resident of Tarija is three times higher than that of the average citizen in Potosí.

The richest urban quintile of the population earns on average 12 times more than the poorest urban quintile, and 26 times more than the poorest rural quintile. In the other hand, inequality within municipalities are stronger in poorer municipalities that in wealthier ones (poorer municipalities are concentrated in the Altiplano).

Bolivian men earn between 20 percent and 80 percent more than women in the same quintile and geographic area.

83 percent of the municipalities that belong to Category A (highly poor and indigenous) have rate of access to potable water of less than 25 percent, 95 percent of municipalities have sanitation access rates lower than 25 percent, while 59 percent of these municipalities have a rate of access to electricity under 25 percent.

Although Bolivia’s average illiteracy rate is less than 25 percent, 13 of its 14 municipalities of Chuquisaca have illiteracy rates of over 50 percent due to the low number of schools for each 10,000 inhabitants in the valleys. Concerning the health of the population, infant mortality rates are found in the West of the country (Potosi, Oruro, and Chuquisaca), although rural areas of Santa Cruz also lack health access.

Access to financial services is higher in the central region (La Paz, Cochapamba, Santa Cruz) than in other areas of the countries. The relation of credits grants by the financial system compared with deposits is particularly low in the departments of Oruro and Potosi,

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and extremely high (greater than 100 percent) in Santa Cruz, which attracts a flow of national resources for its investment opportunities.

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Figure A1.1 Figure A1.2

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Figure A1.3 Figure A1.4

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Incidence of Poverty/ Self-Identification TOTAL

Water Supply -25 25-50 50-75 75+ Total -25 25-50 50-75 75+ Total -25 25-50 50-75 75+ Total -25 25-50 50-75 75+ Total 313Chuquisaca 3 5 5 13 1 7 6 0 14 0 0 0 1 1 0 0 0 0 0 28La Paz 14 24 22 3 63 0 1 0 1 2 0 1 6 3 10 0 0 0 0 0 75Cochabamba 0 17 12 3 32 0 0 1 0 1 0 0 4 6 10 1 0 0 0 1 44Oruro 12 14 3 1 30 0 0 0 1 1 0 1 1 1 3 0 0 0 0 0 34Potosí 2 15 8 6 31 0 0 1 0 1 0 0 3 2 5 0 0 0 0 0 37Tarija 0 0 0 0 0 6 0 0 0 6 5 0 0 0 5 0 0 0 0 0 11Santa Cruz de la Sierra 2 4 1 0 7 2 10 17 3 32 0 1 2 7 10 1 0 0 0 1 50Trinidad 0 1 0 0 1 3 1 2 0 6 8 2 2 0 12 0 0 0 0 0 19Pando 0 0 0 0 0 1 0 0 0 1 10 1 0 1 12 1 1 0 0 2 15TOTAL 33 80 51 13 177 13 19 27 5 64 23 6 18 21 68 3 1 0 0 4 313

Incidence of Poverty/ Self-Identification TOTALProvision of Electricity -25 25-50 50-75 75+ Total -25 25-50 50-75 75+ Total -25 25-50 50-75 75+ Total -25 25-50 50-75 75+ Total 313

Chuquisaca 10 2 1 0 13 11 3 0 0 14 0 0 0 1 1 0 0 0 0 0 28La Paz 39 19 4 1 63 1 1 0 0 2 2 2 5 1 10 0 0 0 0 0 75Cochabamba 14 8 8 2 32 1 0 0 0 1 0 0 0 10 10 0 0 0 1 1 44Oruro 16 10 4 0 30 0 0 1 0 1 0 0 2 1 3 0 0 0 0 0 34Potosí 23 6 1 1 31 1 0 0 0 1 0 0 3 2 5 0 0 0 0 0 37Tarija 0 0 0 0 0 2 3 1 0 6 0 1 1 3 5 0 0 0 0 0 11Santa Cruz de la Sierra 3 4 0 0 7 7 18 7 0 32 1 1 3 5 10 0 0 0 1 1 50Trinidad 0 1 0 0 1 0 4 2 0 6 5 4 2 1 12 0 0 0 0 0 19Pando 0 0 0 0 0 1 0 0 0 1 9 2 1 0 12 1 1 0 0 2 15TOTAL 105 50 18 4 177 24 29 11 0 64 17 10 17 24 68 1 1 0 2 4 313

Incidence of Poverty/ Self-Identification TOTALSanitation Services -25 25-50 50-75 75+ Total -25 25-50 50-75 75+ Total -25 25-50 50-75 75+ Total -25 25-50 50-75 75+ Total 313

Chuquisaca 13 0 0 0 13 11 3 0 0 14 0 0 1 0 1 0 0 0 0 0 28La Paz 62 1 0 0 63 2 0 0 0 2 8 1 0 1 10 0 0 0 0 0 75Cochabamba 32 0 0 0 32 1 0 0 0 1 4 4 2 0 10 0 0 1 0 1 44Oruro 30 0 0 0 30 1 0 0 0 1 2 0 1 0 3 0 0 0 0 0 34Potosí 30 1 0 0 31 1 0 0 0 1 2 2 1 0 5 0 0 0 0 0 37Tarija 0 0 0 0 0 6 0 0 0 6 5 0 0 0 5 0 0 0 0 0 11Santa Cruz de la Sierra 7 0 0 0 7 31 1 0 0 32 3 6 1 0 10 0 0 1 0 1 50Trinidad 1 0 0 0 1 5 1 0 0 6 10 2 0 0 12 0 0 0 0 0 19

Pando 0 0 0 0 0 1 0 0 0 1 11 1 0 0 12 2 0 0 0 2 15TOTAL 175 2 0 0 177 59 5 0 0 64 45 16 6 1 68 2 0 2 0 4 313

WATER SUPPLY

0.5 a 0.75+/0-100 0.25 a 0.50/0 a 740.75+/0-1000.75+/75+

0.75+/75+ 0.75+/0-100 0.5 a 0.75+/0-100 0.25 a 0.50/0 a 74

Table A1. 2

SANITATION SERVICES

0.75+/75+ 0.75+/0-100 0.5 a 0.75+/0-100 0.25 a 0.50/0 a 74

PROVISION OF ELECTRICITY

52

Incidence of Poverty/ Self-Identification TOTAL

Secondary Education -25 25-50 50-75 75+ Total -25 25-50 50-75 75+ Total -25 25-50 50-75 75+ Total -25 25-50 50-75 75+ Total 313Chuquisaca 12 1 0 0 13 11 3 0 0 14 0 1 0 0 1 0 0 0 0 0 28La Paz 17 34 12 0 63 0 2 0 0 2 0 10 0 0 10 0 0 0 0 0 75Cochabamba 21 9 2 0 32 0 1 0 0 1 2 6 2 0 10 0 0 1 0 1 44Oruro 8 14 8 0 30 0 0 0 1 1 1 1 1 0 3 0 0 0 0 0 34Potosí 16 11 4 0 31 0 1 0 0 1 0 2 3 0 5 0 0 0 0 0 37Tarija 0 0 0 0 0 5 1 0 0 6 1 4 0 0 5 0 0 0 0 0 11Santa Cruz de la Sierra 2 4 1 0 7 7 25 0 0 32 0 7 3 0 10 0 0 1 0 1 50Trinidad 0 1 0 0 1 0 6 0 0 6 1 10 1 0 12 0 0 0 0 0 19Pando 0 0 0 0 0 1 0 0 0 1 2 9 1 0 12 1 1 0 0 2 15TOTAL 76 74 27 0 177 24 39 0 1 64 7 50 11 0 68 1 1 2 0 4 313

Incidence of Poverty/ Self-Identification TOTAL

Iliteracy Rate -25 25-50 50-75 75+ Total -25 25-50 50-75 75+ Total -25 25-50 50-75 75+ Total -25 25-50 50-75 75+ Total 313Chuquisaca 0 0 0 13 13 0 1 6 7 14 0 1 0 0 1 0 0 0 0 0 28La Paz 2 31 20 10 63 0 2 0 0 2 2 8 0 0 10 0 0 0 0 0 75Cochabamba 0 4 14 14 32 0 0 1 0 1 3 6 1 0 10 1 0 0 0 1 44Oruro 10 16 4 0 30 0 1 0 0 1 1 2 0 0 3 0 0 0 0 0 34Potosí 2 8 5 16 31 1 0 0 0 1 0 5 0 0 5 0 0 0 0 0 37Tarija 0 0 0 0 0 0 1 2 3 6 2 2 1 0 5 0 0 0 0 0 11Santa Cruz de la Sierra 2 5 0 0 7 4 26 2 0 32 7 3 0 0 10 1 0 0 0 1 50Trinidad 0 1 0 0 1 4 2 0 0 6 7 5 0 0 12 0 0 0 0 0 19Pando 0 0 0 0 0 0 0 1 0 1 2 8 2 0 12 0 1 1 0 2 15TOTAL 16 65 43 53 177 9 33 12 10 64 24 40 4 0 68 2 1 1 0 4 313

Incidence of Poverty/ Self-Identification TOTALAverage Years of Study -5 (5-8) (8+) Total -5 (5-8) (8+) Total -5 (5-8) (8+) Total -5 (5-8) (8+) Total 313

Chuquisaca 13 0 0 0 13 13 1 0 0 14 0 0 1 0 1 0 0 0 0 0 28La Paz 38 25 0 0 63 0 2 0 0 2 0 9 1 0 10 0 0 0 0 0 75Cochabamba 27 5 0 0 32 0 0 1 0 1 0 7 3 0 10 0 0 1 0 1 44Oruro 6 22 2 0 30 0 1 0 0 1 0 2 1 0 3 0 0 0 0 0 34Potosí 24 6 1 0 31 0 1 0 0 1 0 4 1 0 5 0 0 0 0 0 37Tarija 0 0 0 0 0 5 1 0 0 6 1 3 1 0 5 0 0 0 0 0 11Santa Cruz de la Sierra 0 7 0 0 7 7 25 0 0 32 0 7 3 0 10 0 0 0 1 1 50Trinidad 0 1 0 0 1 0 6 0 0 6 1 10 1 0 12 0 0 0 0 0 19Pando 0 0 0 0 0 1 0 0 0 1 2 9 1 0 12 0 1 1 0 2 15TOTAL 108 66 3 0 177 26 37 1 0 64 4 51 13 0 68 0 1 2 1 4 313

NET COVERAGE OF SECONDARY EDUCATION

0.75+/75+ 0.75+/0-100 0.5 a 0.75+/0-100 0.25 a 0.50/0 a 74

ILLITERACY RATE

0.75+/75+ 0.75+/0-100 0.5 a 0.75+/0-100 0.25 a 0.50/0 a 74

AVERAGE YEARS OF STUDY

0.75+/75+ 0.75+/0-100 0.5 a 0.75+/0-100 0.25 a 0.50/0 a 74

Table A1.3

53

Incidence of Poverty/ Self-Identification TOTAL

Rate of Completion for Primary Education -25 25-50 50-75 75+ Total -25 25-50 50-75 75+ Total -25 25-50 50-75 75+ Total -25 25-50 50-75 75+ Total 313

Chuquisaca 3 9 1 0 13 3 9 2 0 14 0 0 1 0 1 0 0 0 0 0 28La Paz 2 16 27 18 63 2 0 0 0 2 0 0 9 1 10 0 0 0 0 0 75Cochabamba 9 11 8 4 32 0 0 0 1 1 0 3 5 2 10 0 0 0 1 1 44Oruro 2 6 10 12 30 0 0 0 1 1 1 0 0 2 3 0 0 0 0 0 34Potosí 8 9 8 6 31 0 0 1 0 1 0 0 0 5 5 0 0 0 0 0 37Tarija 0 0 0 0 0 1 5 0 0 6 0 1 4 0 5 0 0 0 0 0 11Santa Cruz de la Sierra 0 1 4 2 7 0 5 21 6 32 1 0 5 4 10 0 0 1 0 1 50Trinidad 0 0 1 0 1 0 1 4 1 6 2 1 6 3 12 0 0 0 0 0 19Pando 0 0 0 0 0 1 0 0 0 1 5 1 3 3 12 1 0 0 1 2 15

TOTAL 24 52 59 42 177 7 20 28 9 64 9 6 33 20 68 1 0 1 2 4 313

Incidence of Poverty/ Self-Identification TOTALEducational Units -25 25-50 50-75 75+ Total -25 25-50 50-75 75+ Total -25 25-50 50-75 75+ Total -25 25-50 50-75 75+ Total 313

Chuquisaca 3 10 0 0 13 1 13 0 0 14 1 0 0 0 1 0 0 0 0 0 28La Paz 6 46 10 1 63 0 2 0 0 2 2 8 0 0 10 0 0 0 0 0 75Cochabamba 11 15 5 1 32 0 1 0 0 1 10 0 0 0 10 1 0 0 0 1 44Oruro 11 16 3 0 30 1 0 0 0 1 2 1 0 0 3 0 0 0 0 0 34Potosí 3 19 7 2 31 0 1 0 0 1 2 3 0 0 5 0 0 0 0 0 37Tarija 0 0 0 0 0 0 5 1 0 6 4 1 0 0 5 0 0 0 0 0 11Santa Cruz de la Sierra 3 4 0 0 7 15 13 2 2 32 9 0 1 0 10 1 0 0 0 1 50Trinidad 0 1 0 0 1 3 3 0 0 6 6 4 1 1 12 0 0 0 0 0 19Pando 0 0 0 0 0 0 1 0 0 1 2 3 2 5 12 0 0 1 1 2 15

TOTAL 37 111 25 4 177 20 39 3 2 64 38 20 4 6 68 2 0 1 1 4 313

Incidence of Poverty/ Self-Identification TOTALInfant Mortality -25 25-50 50-75 75+ Total -25 25-50 50-75 75+ Total -25 25-50 50-75 75+ Total -25 25-50 50-75 75+ Total 313

Chuquisaca 0 0 2 11 13 0 2 9 3 14 0 0 1 0 1 0 0 0 0 0 28La Paz 1 1 37 24 63 0 0 2 0 2 0 0 8 2 10 0 0 0 0 0 75Cochabamba 0 0 8 24 32 0 0 1 0 1 0 1 9 0 10 0 0 1 0 1 44Oruro 0 0 4 26 30 0 0 0 1 1 0 0 1 2 3 0 0 0 0 0 34Potosí 0 0 1 30 31 0 0 0 1 1 0 0 1 4 5 0 0 0 0 0 37Tarija 0 0 0 0 0 0 0 5 1 6 0 1 4 0 5 0 0 0 0 0 11Santa Cruz de la Sierra 0 2 4 1 7 0 6 20 6 32 0 6 4 0 10 0 0 1 0 1 50Trinidad 0 0 1 0 1 0 1 5 0 6 0 2 9 1 12 0 0 0 0 0 19

Pando 0 0 0 0 0 0 0 1 0 1 0 0 5 7 12 0 0 2 0 2 15

TOTAL 1 3 57 116 177 0 9 43 12 64 0 10 42 16 68 0 0 4 0 4 313

Incidence of Poverty/ Self-Identification TOTAL

Health Posts and centers -5 (5-10) (10-20) (20-42) Total -5 (5-10) (10-20) (20-42) Total -5 (5-10) (10-20) (20-42) Total -5 (5-10) (10-20) (20-42) Total 313Chuquisaca 4 7 2 0 13 2 7 5 0 14 1 0 0 0 1 0 0 0 0 0 28La Paz 41 21 0 1 63 0 1 1 0 2 6 3 1 0 10 1 0 0 0 1 76Cochabamba 18 9 5 0 32 0 1 0 0 1 10 0 0 0 10 0 0 0 0 0 43Oruro 7 11 9 3 30 1 0 0 0 1 2 1 0 0 3 0 0 0 0 0 34Potosí 7 15 6 3 31 0 0 1 0 1 1 3 1 0 5 0 0 0 0 0 37Tarija 0 0 0 0 0 1 3 2 0 6 3 2 0 0 5 0 0 0 0 0 11Santa Cruz de la Sierra 4 2 1 0 7 24 6 2 0 32 9 1 0 0 10 1 0 0 0 1 50Trinidad 0 1 0 0 1 5 1 0 0 6 6 3 3 0 12 0 0 0 0 0 19Pando 0 0 0 0 0 0 1 0 0 1 1 3 7 1 12 0 1 1 0 2 15

TOTAL 81 66 23 7 177 33 20 11 0 64 39 16 12 1 68 2 1 1 0 4 313

NUMBER OF HEALTH POSTS AND CENTERS

0.75+/75+ 0.75+/0-100 0.5 a 0.75+/0-100 0.25 a 0.50/0 a 74

INFANT MORTALITY RATE

0.75+/75+ 0.75+/0-100 0.5 a 0.75+/0-100 0.25 a 0.50/0 a 74

NUMBER OF EDUCATIONAL UNITS PER 100,000 HABITANTS

0.75+/75+ 0.75+/0-100 0.5 a 0.75+/0-100 0.25 a 0.50/0 a 74

RATE OF COMPLETION FOR PRIMARY EDUACTION

0.75+/75+ 0.75+/0-100 0.5 a 0.75+/0-100 0.25 a 0.50/0 a 74

Table A1.4

ANNEX 2.1 – FOUR DEFINITIONS OF INDIGENOUS PEOPLES

1. José Martínez Cobo (1981), in a Study on the Issue of Discrimination against Indigenous Peoples

Indigenous communities, peoples and indigenous nations are those who, having a historical continuity with societies prior to the invasion and precolonial societies that developed in their territories, consider themselves different from other sectors of societies now prevailing in those territories or parts thereof. They currently comprise non-dominant sectors of the society and are determined to preserve, develop and transmit to future generations their ancestral territories and ethnic identity as a foundation for their continued existence as a people, according to their own cultural patterns, social institutions and legal systems.

Quoted at the UN Permanent Forum on Indigenous Issues, http://www.un.org/spanish/indigenas/2003/

2. The Indigenous and Tribal Peoples Convention (Convention 169 of 1989)

PART I. GENERAL POLICY

Article 1

1. This Convention applies to:

(a) Tribal peoples in independent countries whose social, cultural and economic conditions distinguish them from other sections of the national community, and whose status is regulated wholly or partially by their own customs or traditions or by special laws or regulations;

(b) Peoples in independent countries who are regarded as indigenous on account of their descent from the populations which inhabited the country, or a geographical region to which the country belongs, at the time of conquest or colonization or the establishment of present State boundaries and who, irrespective of their legal status, retain some or all of their own social, economic, cultural and political institutions.

2. Self-identification as indigenous or tribal shall be regarded as a fundamental criterion for determining the groups to which the provisions of this Convention apply.

3. The use of the term "peoples" in this Convention shall not be construed as having any implications as regards the rights which may attach to the term under international law.

International Labour Organization: http://www.ilo.org/ilolex/cgi-lex/convds.pl?C169

54

3.Regulation of Baseline Or Community Territorial Organizations (Bolivia)

Indigenous People. It is the human community descending from populations that settled prior to the time of conquest or colonization and that are comprised within the present State boundaries. They have a history, organization, language or dialect and other cultural characteristics their members identify with, acknowledging themselves as pertaining to the same social and cultural unit, they retain a territorial bond in terms of managing their habitat and their social, economic, political and cultural institutions. Within the framework of the previous definition, Baseline Territorial Organizations with an Indigenous component comprise the following communities: Tentas, Capitanías [Captainships], Cabildos Indígenas del Oriente [Eastern Indigenous Town Councils], Ayllus.

Supreme Decree 23.858, 1994 www.minedu.goV.bo/pre/ley/DS23858.pdf

4. World Bank, Operational Policy 4.10 on Indigenous Peoples

3. Identification. Because of the varied and changing contexts in which Indigenous Peoples live and because there is no universally accepted definition of “Indigenous Peoples,” this policy does not define the term. Indigenous Peoples may be referred to in different countries by such terms as “indigenous ethnic minorities,” “aboriginals,” “hill tribes,” “minority nationalities,” “scheduled tribes,” or “tribal groups.” 4. For purposes of this policy, the term “Indigenous Peoples” is used in a generic sense to refer to a distinct, vulnerable, social and cultural group having the following characteristics in varying degrees:(a) self-identification as members of a distinct indigenous cultural group and recognition of this identity by others; (b) collective attachment to geographically distinct habitats or ancestral territories in the project area and to the natural resources in these habitats and territories; (c) customary cultural, economic, social, or political institutions that are separate from those of the dominant society and culture; and (d) an indigenous language, often different from the official language of the country or region.

(May, 2005, supersedes Operational Directive 4.20 on Indigenous Peoples) www.worldbank.org

55

ANNEX 2.2 – RELEVANT ARTICLES OF THE PRESENT CONSTITUTION ON THE INDIGENOUS PEOPLES ISSUE

Political Constitution of the State of Bolivia of 1967

Promulgated on February 2, 1967, several times reformed, recently through Act 1585, published on August 12, 1994, Act 1615 of February 6, 1995 and Act 2650 of April 13, 2004.

Subject Constitutional Text

1. Type of Government: Representative and Participatory Republic. Acknowledgement of Multiple Cultures

PRELIMINARY TITLEGENERAL PROVISIONS

Article 1I. Bolivia, free, independent, sovereign, multiethnic and multicultural, established as a Unitary Republic, adopts the representative and participatory democracy as form of government, founded in union and solidarity with all Bolivians.

 2. Official Religion: Catholicism.

Other Cults are AcknowledgedArticle 3

The State acknowledges and upholds the Roman Catholic Apostolic religion. It guarantees the public exercise of all other cults. Relations with the Catholic Church shall be governed by covenants and agreements between the Bolivian State and the Holy See.

3. Forms of Debate Article 4

I. The people debate and govern through their representatives and through the Constituent Assembly, the Citizen Legislative Initiative and the Referendum, established by this Constitution and regulated by Law.

II. Any armed forces or meeting of people who claim sovereignty of the people shall commit the crime of sedition.

4. Slavery and Personal Work are Banned

PART ITHE PERSON AS A MEMBER OF THE STATE

TITLE ONEA PERSON´S BASIC RIGHTS AND DUTIES

Article 5No form of slavery is acknowledged and no one shall be forced to provide personal work without their full consent and fair compensation. Personal services shall only be enforceable when the law so provides.

5. Rights, Liberties and Article 6

56

Subject Constitutional Text

Guarantees. I. Every human being has personality and legal capacity, according to law. Every human being enjoys rights, liberties and guarantees acknowledged by the present Constitution, regardless of race, gender, language, religion, political or other opinion, origin and economic, social or any other condition.

II. A person’s dignity and liberty are inviolable. Respecting and protecting them is the State’s primal duty.

6. Basic Rights: To formulate Petitions and Private Property Guarantee

Article 7All persons have the following basic rights, according to the laws that regulate them:

h) To formulate petitions, both individually and collectively;i) To private property, both individually and collectively, provided it fulfills a social function;

7. Private Property and Expropriation for Public Use

PART ITHE PERSON AS A MEMBER OF THE STATE

TITLE IIA PERSON´S GUARANTEES

Article 22I. Private property is guaranteed provided that use thereof is not detrimental to the public interest.

II. Expropriation shall take place for public use or where property does not fulfill a social function, qualified as such according to law, and following fair payment of damages.

8. Deputies must be Submitted as Candidates by a Political Party or Citizen Associations and/or Indigenous Peoples

PART IITHE BOLIVIAN STATE

TITLE ONELEGISLATIVE BRANCH

CHAPTER IICHAMBER OF DEPUTIES [Lower House]

Article 61Requirements for being a Deputy:

1. To be Bolivian by birth and having fulfilled military duties, in the case of males.2. To be age twenty-five at the time of the

appointment.3. To be registered in the Voting Registry.4. To be submitted as candidate by a political party,

citizen associations and/or indigenous peoples as established by the present Constitution and the law.

5. Not having been sentenced to bodily punishment, with the exception of rehabilitation granted by the Senate, nor have enforceable charges or writ of guilt, nor be comprised in the exclusion and incompatibility cases as established by law.

57

Subject Constitutional Text

9. Exercise Maximum Authority of the National Agrarian Reform Service

PART IITHE BOLIVIAN STATE

TITLE IIEXECUTIVE BRANCH

CHAPTER IPresident of the Republic

Article 96The President of the Republic shall have the following

powers: …24th. To exercise the maximum authority of the National Agrarian Reform Service. To grant enforceable titles pursuant to land redistribution, in accordance with the provisions of the Agricultural Reform Act and those for colonization.

10. Free Legal Defense and Translation in Legal Proceedings for the Indigent

TÍTLE IIITHE JUDICIARY

CHAPTER IGeneral Provisions

Article 116 Being free of charge, public, speedy and upright are essential conditions for the administration of justice. The Judiciary is responsible for providing free legal defense to the indigent, as well as a translator when their mother tongue is not Spanish.

 Judgments, writs and resolutions shall be delivered in public hearings, and shall have causes of action and be substantiated by Law.

11. Public Defender   TÍTLE V COMMUNITY DEFENSE

CHAPTER IIPublic Defender

Article 127I. The Public Defender safeguards the effectiveness of people’s rights and guarantees in relation to national, municipal and departmental administration activity. 

II. The Public Defender does not receive instructions from public powers. The Legislative budget sets aside monies for the proper operation of this institution.

12. The Soil, Subsoil and Natural Resources Belong Originally to the State.

PART IIISPECIAL SCHEMES

TÍTLE IECONOMIC AND FINANCIAL PLAN

CHAPTER IINational Property

Article 136I. In addition to the property granted by Law, the State is the original owner of the soil, subsoil and all natural wealth; lake, river and medicinal waters, as well as all elements and physical forces capable of being harnessed.

II. The Law shall establish conditions for such ownership, in

58

Subject Constitutional Text

addition to assignment and allocation to individuals.

Subject Constitutional Text

13. National Heritage Article 137The assets of the Nation’s heritage are deemed public property which is inviolable. Every inhabitant of the national territory has the duty to respect and protect such public property.

14. The State has Original Ownership on the Land, and is Responsible for its Distribution, Reclustering and Redistribution.

TÍTLE IIIAGRARIAN AND PEASANT REGIME

Article 165The Nation is the original owner of the land and the State is responsible for the distribution, reclustering and redistribution of agricultural property, in accordance with the rural socioeconomic and development needs.

15. Right to Confer Land to Peasants (Notion that Includes Indigenous People)

Article 166Labor is the basic source for purchasing and keeping agricultural property, and the law sets forth the rights of farmers to land grants.

16. Community Property Guaranteed

Article 167The State shall not acknowledge large privately owned rural estates. It guarantees the existence of community, cooperative and private property. The law shall determine its formal aspects and regulate all changes.

17. Promotion of Peasant Community Development

Article 168The State shall plan and promote the economic and social development of peasant communities and agricultural credit unions.

18. Features of the Agricultural Plot and Small Property. Socioeconomic Function is a Prerequisite.

Article 169The agricultural plot and small property are declared indivisible; they make up the minimum and vital property and fall into the family asset category, unattachable according to law. Mid-sized property and farming companies acknowledged by law enjoy State protection, provided they fulfill an economic and social role, in accordance with development plans.

19. Operation of Renewable Natural Resources Program

Article 170The State shall regulate the operation of the renewable natural resources program, precautioning on its preservation and increase.

20. Guarantee, Respect and Protection of Indigenous Peoples´ Rights, Acknowledgement of Legal Personality, and Delegation of Administrative and Jurisdictional Functions.

Article 171I. Social, economic and cultural rights of indigenous

peoples living in the national territory are acknowledged, respected and protected within the legal framework, especially those rights relating to their original community lands, ensuring the use and sustainable exploitation of natural resources, in addition to identity, values, languages, customs and institutions.

II. The State acknowledges the legal personality of indigenous and farming communities, and that of

59

Subject Constitutional Text

farming associations and trade unions.III. Natural authorities of indigenous and farming

communities may exercise administrative powers and proprietary rule enforcement such as alternative dispute resolution, in accordance with customs and procedures, provided they are not contrary to the present Constitution and legislation. The Law shall harmonize these functions with the powers of State Authorities.

21. Colonization Plans Article 172The State shall promote colonization plans to achieve a

rational demographic distribution and better operate land and the country’s natural resources, giving priority to border areas.

22. Promotion of Peasant Production

Article 173The State is responsible for granting promotion credits to

peasnts to increase agricultural production. Such granting shall be regulated by Law.

23. Farmer Literacy and Access to Culture at Large.

Article 174

The State is responsible for the surveillance and promotion of literacy and farmer education in the basic, technical and professional cycles, in conformity with rural development plans and programs and encouraging access to culture in all its expressions.

24. Protection of Cultural Treasure TITLE IV- CULTURAL SCHEMEArticle 191

I. Monuments and archeological objects are State-owned property. The colonial, archeological, historic and documentary artistic wealth, as well as that of the religious culture, are the Nation’s cultural treasure, are under State protection and cannot be exported.

II. The State shall organize a Registry of the artistic, historical and documentary wealth, shall provide custody and shall see to its preservation.

III. The State shall protect buildings and objects declared of historic or artistic value.

25. Protection of Art and Popular Industries

Article 192All expressions of art and popular industries are factors of

the national culture and enjoy the State’s special protection, geared to preserve authenticity and

increasing production and dissemination.26. Municipality Autonomy TITLE VI

CHAPTER VGENERAL INSPECTORATE

MUNICIPAL PROGRAM Article 200

I. Governance and municipality management are in

60

Subject Constitutional Text

the hands of Independent Municipal Governments of equal hierarchy. In the districts there shall be municipal agents under the supervision and control of the Municipal Government of its jurisdiction.

II. Municipal autonomy comprises rulemaking, executive, administrative and technical authority within its jurisdiction and territorial competence.

27. Indigenous Associations and Peoples (by Reform of April 13, 2004, Act 2650)

TÍTLE IXVOTING REGIME

CHAPTER IIPOLITICAL PARTIES

Article 222Popular representation is exercised through political

parties, citizen associations and indigenous peoples, in conformity with the Present Constitution and according to law.

Article 223I. Political parties, citizen associations and

indigenous peoples who converge to create popular will, are legal entities of the Public Law.

II. Their program, organization and operation shall be democratic and adjust to the principles, rights and guarantees acknowledged in the present Constitution.

III. Their capacity as a legal entity shall be registered and be known before the National Voting Court.

IV. They shall be publicly accountable for financial resources disbursed by the State and shall be subject to fiscal control.

Article 224Political parties, and/or citizen associations and/or

indigenous peoples, may directly submit candidates for President, Vice President, Senators and Deputies, Constituents, Councilors, Mayors and Municipal Agents, under equal conditions before the Law, fulfilling the requirements established therein.

28. Constitutional Supremacy PART IVCONSTITUTIONAL SUPREMACY AND REFORM

TITLE ICONSTITUTIONAL SUPREMACY

Article 229All principles, rights and guarantees acknowledged by this

Constitution shall not be changed by laws that regulate their exercise; neither do they need prior regulation for compliance.

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ANNEX 2.3 – INCORPORATION OF INDIGENOUS RIGHTS IN BOLIVIAN LEGISLATION

Political Constitution of the State (1994, arts. 1; 5; 6; 116; 165-176) Ratified International Conventions: Convention 169, ILO (1991), American Convention on Human

Rights (1993), Convention on the Fund for the Development of the Indigenous Peoples of Latin America and the Caribbean (1993), Inter-American Convention on the Prevention, Punishment and Eradication of Violence Against Women (1994), Convention on Biological Diversity (1994), International Convention on the Elimination of All Forms of Racial Discrimination (1999), Andean Community Commission: Common Regime on Industrial Property (2000).

1992: Environmental Law 1994: Popular participation Law, Regulatory Decree of Baseline Territorial Organizations (1994) and

the Complementary Regulation of Popular Participation and Administrative Decentralization Laws (1996)

1994: Education Reform Law 1995: Law against Domestic or Family Violence 1996: Hydrocarbons Law 1996: National Agrarian Reform Service Law, its regulation (2000) and modifications thereto (2000

and 2006); 1996: Agrarian Court Law 1996: Forestry Law and its regulation (1996) 1997: Mining Code 1997: Public Defender Law 1997: Protected Areas Regulation 1997: Common Regime on Access to Genetic Resources Regulation 1998: General Public Works & Transport Concessions Law, and Organic Regulation 1998: Regulation of the Regime on Access to Genetic Resources 1999: Criminal Code and Code of Criminal Procedure Law 1999: Boy, Girl and Adolescent Code 1999: Municipalities Law 1999: Political Parties Law 1999: Drinking Water and Sewage Service Law (Modifying Law of 2000) 2000: Presidential Order on the Establishment of the Ministry of Farming Affairs, Indigenous and

Aboriginal Peoples and Decree on its functions 2000 Law on the Promotion of Tourism in Bolivia 2000: Supreme Decree on Official Languages 2000: Law on Coming of Age and Capacity to Act 2000: Modifying Law of the Drinking Water and Sewage Service Law 2000 Political Administrative Units Law 2001: Electoral Code 2000: Supreme Decree on the Establishment of an Inter.-Institutional Commission for the Laimes and

Qaqachacas region 2001: Dialogue Law 2002: Mother and Child Universal Insurance Law  2004: Citizens’ Associations and Indigenous Peoples Law 2005: Hydrocarbons Law 2006: Special Law to Convene the Constitutional Assembly

ANNEX 2.4 – THE SPREAD OF MULTICULTURALISM IN LATIN AMERICA SINCE 1986…

62

Date of Promulgation of the Constitution

Country/recognition

1986(reformed in 1993)

Guatemala acknowledges the ”right to cultural identity of persons and communities” (art. 58), protects ”ethnic groups” (art. 66) and their ”lands and agricultural credit unions” (art. 67). Section III ”Indigenous Communities” (Title II, Chapter II) contains 5 articles specific to this topic (arts. 66-70).

1987(reformed in 1995)

Nicaragua officially assumes its “multiethnic nature” (art. 8) and recognizes the right of the Atlantic Coast Communities to ”preserve and develop their identity and culture” (art. 89). Nicaragua also acknowledges ”the communal forms of land ownership” and the ”use and enjoyment of waters and forests” (art. 89). Chapter IV Rights of the Atlantic Coast Communities (Title IV) includes 3 articles (arts. 89-91).

1988 Brazil accepts and protects the different expressions “of popular, indigenous and Afro-Brazilian cultures” (art. 215, 1st.). Chapter VIII Of the Indians (Title VIII) –consisting of two extended articles - acknowledges the Indians’ “social organization, habits, languages and original rights over the lands they traditionally live on” (art. 231).

1991(reformed in 2001)

Colombia “acknowledges and protects the Nation’s ethnic and cultural diversity” (art. 7), the ”sheltered lands” “resguardos” in Spanish) are declared ”inalienable” (art. 63), indigenous authorities are empowered to exercise ”jurisdictional functions” (art. 246) and ”indigenous territorial entities” (art. 286) are established.

1992(reformed later)

Mexico declares its “multicultural composition originally based on its indigenous peoples” (art. 4), acknowledges the indigenous population groups’ “legal personality” and ”protects the integrity of the indigenous groups’ lands” (art. 27, VII). In a subsequent 2001 reform, Mexico expanded the rules in favor of Indigenous Peoples (art. 2).

1992 Paraguay defines itself as a “pluricultural and bilingual country” (art. 140), guarantees the ”rights of indigenous peoples to develop their ethnic identity” (art. 64) and declares communal property ”not subject to mortgage and non-transferable” (art. 64). Chapter V Of Indigenous Peoples (Title II, Part I) includes 5 articles.

1993 Peru “acknowledges and protects the nation’s ethnic and cultural plurality” (art. 2, 19th, Title III, Chapter II). In the Chapter on Agricultural and Farming and Native Communities’ Regime (arts. 88-89) the State guarantees their inalienable (albeit non-assignable) ownership right and acknowledges their legal personality. The indigenous authorities are also empowered to exercise jurisdictional functions (art. 149).

1995 (reformed) Bolivia declares itself ”multiethnic and pluricultural” (art. 1), acknowledges the rights of Indigenous Peoples with respect to their “community lands of origin”,

their legal personality, and the application of standards (art. 171).

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Date of Promulgation of the Constitution

Country/recognition

1994 Argentina delegates on the Congress to acknowledge several rights: the ethnic and cultural pre-existence of the Argentine Indigenous Peoples, respect for their identity, bilingual and intercultural education, legal personality and communal possession and ownership of the lands they traditionally live on (Paragraph 17 of Article 75).

1996/1998 Ecuador in 1996 proclaims to be ”A sovereign, independent, democratic, unitary, decentralized, pluricultural and multiethnic State” (art. 1). Two years later Ecuador repeats in a new Constitution the nation’s “pluricultural and multiethnic” nature (art. 1) and develops numerous articles with multiple references, contained especially in Section I Of Indigenous and Afro-Ecuadorian Peoples (Title 3, Chapter 5): to maintain the identity, preserve property as inalienable, take part in the use and management of renewable natural resources (art. 84). It also establishes indigenous districts (art. 224) and empowers indigenous authorities to exercise justice-related functions (art. 191).

1999 Venezuela is refounded as a ”multiethnic and pluricultural” Republic (Preamble). Chapter VIII Of Indigenous Peoples Rights (Title III) includes 8 articles and a broad variety of rights: recognition of social organization, the land indigenous peoples ancestrally held is inalienable, demarcation, promotion of economic practices, intellectual property, participation in the National Assembly (arts. 119-126). Furthermore, the application of justice is included (art. 260).

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ANNEX 2.5 – ASPECTS OF THE TERRITORIAL RIGHTS OF INDIGENOUS PEOPLES

1. Economic, Territorial and Environmental Rights Legally established collective ownership Compatibility of indigenous lands and national parks Restrictions to protect collective indigenous property Penalties for unauthorized intrusion by third parties Right to not being relocated Perfection of title/expansion: legislation with clearly established responsibility Gratuitous endowment of land Demarcation program Land registration

2. Natural Resources Preferential rights to natural resources exploitation in indigenous territories Ownership of natural resources Royalties/profits rights Exclusive right of hunting/fishing within their territories Profits from underground resources

3. Economic Rights Transfer from the government to indigenous territories/authorities Protection of the traditional economy Collective ownership as basis for credit Access to special programs Access to foreign resources Promotion of indigenous enterprises Protection of the cultural integrity Mandatory “cultural impact” study

4. Biodiversity,Genetic Resources Special protection of natural resources in indigenous territories Special patent rights Indigenous knowledge part of biodiversity

Source: IADB, 2004 (www.iadb.org)

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ANNEX 3.1 – INTERNATIONAL EXPERIENCES IN RELATION TO INDIGENOUS TERRITORIES

PERU

Peru was able to adapt the “peasant community” approach to lowland areas through participatory mapping and titling. In Peru the law of Native Communities (D.L. 22.175) gives indigenous communities in the Amazon lowlands the right to have their territories demarcated and titled. Although the legislation has been changed over the years, it essentially maintains the modalities which were created for the agrarian reform in Peru in the 1960s and 70s, attempting to apply the concept of Andean peasant communities in the Amazon lowlands. Although the peasant community concept not ideally suited for the indigenous social and productive systems of the Amazon, it has been adapted in ways which have generated a good deal of success and satisfaction.

One of the first and most successful of such initiatives has occurred in the Ucayali region of central Peruvian Amazon. The local indigenous organization elaborated a land titling program with internatioanl support from Denmark (DANIDA) to finance and carry out the physical demarcation and mapping of the community territories, working with mixed technical teams from the Ministry and the indigenous organization. The Peruvian legislation does not recognize indigenous group territories as such but only community lands, so each community in the total territory had to be demarcated and titled. Eventually the accumulation of adjacent communites demarcating their land was built up in such a manner that larger territories were de facto formed, constituted by hundreds of adjacent community titles in larger contiguous blocks. Each community holds their title and has the exclusive right to self-governances and indigenous privileges, maintaining local control within their territory. In the Ucayali more than 21 million ha. were demarcated and titled from 1990-1998 covering almost 200 native communities. (Garcia, Hvalkof and Gray, 1998)

VENEZUELA

Venezuela adopted its current Constitution in 1999, and it gives full recognition to indigenous rights. In 2002, the country also ratified ILO 169. Before this time, the state had recognized indigenous lands under the usual procedures for titling lands to campesinos. These lands were given in collective form, but since no legal recognition of indigenous groups existed, they were given to groups of particular individuals by name. In the absence of legislation providing for their management, these lands came under the Civil Code, and this imposed serious limitations on their use by indigenous groups.

The new Venezuelan Constitution, like the Ecuadorian Constitution, describes indigenous rights in the future tense, leading to the conclusion by some that these rights must be embodied in specific laws by the national legislature before taking effect, and to date this has not happened. The Law for Demarcation and Guarantee of Habitat and Lands for Indigenous Peoples, passed in 2001, did not do so, although it did define some concepts and new strategies of the state on indigenous issues. Currently, the National Assembly has before it a new draft law, called the Law of Indigenous Peoples, which would define not only the procedures for recognizing indigenous lands, but also indigenous autonomy, the authority of indigenous representatives and their relationship to the state, as well as providing the administrative model for the legally recognized indigenous territories. Despite strong opposition from vested interests,

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the new Venezuelan constitution also guarantees some degree of local autonomy and local governance of indigenous “habitats”. Venezuela is also especially notable because its new demarcation law also recognizes indigenous self-demarcation as a valid part of the land regularization and titling process ( Roldan 2004; Sendas, 2001; Colchester, Silva and Tomedes, 2004: pp. 36 - 37).

NICARAGUA

Nicaragua legally recognizes the rights of indigenous peoples to land and resources in the constitution and in the federal laws of the country, an establishes local territorial autonomy for indigenous groups. Nicaragua, is one of the few countries in Latin America that has not ratified ILO Convention No. 169. In 1987, the country adopted a new constitution and an Autonomy Law (Law No. 28), both of which were major steps in the formal recognition of indigenous land rights on the Atlantic Coast. Chapter 6 of the constitution stipulates the rights of the Atlantic Coast communities. In particular, articles 5, 89, and 180 affirm the rights of the peoples to maintain their communal forms of land ownership, guarantee the enjoyment of their natural resources, and provide for the free election of their authorities and representatives. An Autonomy Law provides for local territorial autonomy for indigenous groups. Nicaragua’s Autonomy Law establishes Regional Autonomous Councils as the local authorities in charge of the development of the Coastal regions and the administration of their natural resources. The law also requires the government to consult indigenous peoples regarding the exploitation of their resources. Indigenous lands are defined as inalienable, nontransferable, un-mortgageable and imprescriptible. However, the guarantees provided for in the Autonomy Law as well as the constitution have not been effectively implemented.

The Awas-Tingi Case offers an insight into the problem of effectively ensuring rights to indigenous territory. Since 1987, Nicaragua has recognized only a small fraction of the indigenous peoples’ traditional lands. Recognition has often been carried out under the agrarian laws with little consideration of customary norms. In addition, the government has frequently made decisions without adequate community consultation. In the political arena, power struggles between opposing parties, as well as battles between coastal groups and the national government have made implementation of the Autonomy Law very difficult. This failure to implement formal legal protections is exemplified by the case of the Mayagna (Sumo) Awas Tingni community. On August 31, 2001, the community of Awas Tingni won a landmark legal case before the Inter-America Court of Human Rights, establishing that the indigenous community had customary land rights on the basis of historical occupation and that Nicaragua had violated the community’s rights to property, judicial protection, and due process of law by granting a logging concession on those lands without the consent of the community. Furthermore, Nicaragua had not provided a legal framework for official delimitation, demarcation, and titling of indigenous land in accordance with customary law. This was the first time that an international judicial body had affirmed the rights of indigenous peoples to their lands by virtue of traditional use.

In response to this decision, the Nicaraguan Congress passed a land demarcation law (Law No. 445) in January 2003 that defines the procedures for recognizing indigenous lands and provides a model for management of their territories. However, the law has only led to the demarcation of a very small percentage of the lands claimed by indigenous groups. For instance, the Awas Tingni community was offered a very small piece of land instead of the documented territory. The lack of compliance of the new land demarcation law has been blamed on a lack of political will on the part of the Nicaraguan government.

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AUSTRALIA

Australian governments have used at least five main legal tools or pathways to address issues arising from Aboriginal land demands and recognition of their land rights. Legislation in all these categories has led to 117m ha. or about 15 percent of Australia being recognized as Aboriginal land.

(1) Land Acquisition Legislation (e.g. the Aboriginal Land Fund Commission established in 1975, the Regional Land Fund administered by ATSIC since 1989 and the Indigenous Land Corporation established in 1995) has been an administrative attempt to resolve problems arising from dispossession by acquiring land on behalf of Aboriginal groups.

(2) Land Rights Legislation has recognized ownership of existing claims. For example, the Commonwealth's Aboriginal Land Rights Act (Northern Territory) 1976 provided for an adjudicated claims mechanism and gave Aboriginal land owners a veto over new mining proposals, except in the national interest. The South Australian Government passed legislation in 1981 which recognized the Pitjantjatjara and Maralinga peoples' inalienable freehold title to their lands, entitled them to arbitration in disputes over mining and provided for the payment to Aboriginal people of royalty equivalents for mining on Aboriginal land. The New South Wales Aboriginal Land Rights Act 1983 provided for the ownership of reserve lands to be transferred to Aboriginal people and for the equivalent of 7.5 per cent of all land taxes to be paid to a Land Council account, from which a system of councils and an investment program is funded. In Queensland reserve land was transferred to indigenous ownership in 1984.

(3) Aboriginal Heritage Legislation helps protect culturally significant land from unwanted development and has been used to delay certain developments in South Australia.

(4) Native Title Legislation followed the High Court's 1992 Mabo decision. The Native Title Act 1993 set up a nation-wide system for the adjudication of native title claims and provides for a right to negotiate over future acts on land where native title has been claimed or found to exist.

(5) Joint management legislation attempts to reconcile nature conservation with Aboriginal community development and land ownership. The Deed of Grant to Uluru National Park, for example in 1986 made under the Commonwealth's Aboriginal Land Rights Act (Northern Territory) 1976 set the example for other joint management agreements.

CANADA

The settlement of large scale treaty claims has provided the legal basis for indigenous land rights. Like in New Zealand, the Royal Proclamation of 1763 and the many treaties which it subsequently underpinned have provided the basis for modern recognition of indigenous land and resource rights. There have been a range of treaties and since the 1970s a specific claims process has assisted treaty groups which seek fulfillment of treaty obligations. There is also a comprehensive claims system for claims in parts of the country where native title has not previously been dealt with by treaty or other means.

In many areas of Canda, however treaties were never signed with indigenous groups. In these cases new, large-scale agreements have been reached. This has been the case with the Cree and Inuit in Northern Quebec in 1974 (0.14m ha), the Inuit of the Western Arctic in 1984 (9.1m ha), the Tungavik Federation of the Eastern Arctic in 1991 (35m ha - finalized as the

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Nunavut Agreement in 1993) and the Yukon First Nations in 1993. The Cree and Inuit were found to have hunting and fishing rights to 15.5m ha as part of the James Bay Agreement. Indigenous people have an interest in 62.5m ha, including 2.7m ha of reserves. This represents 6.3 per cent of Canada's land area. Indigenous people control access to minerals in most of this area and receive royalties or compensation for mining. A series of joint-ventures with forest enterprises presents a successful model of linking commercial development with indigenous land management practice. Although contested in some cases, private rights which have been granted in fee simple within these areas to third parties are generally upheld.

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ANNEX 3.2 – DIMENSIONS OF TERRITORIAL RIGHTS IN LATIN AMERICA

Recognition Example1. Special relationship of

Indigenous Peoples to landThe State shall acknowledge the existence of the indigenous peoples and communities with their social, political and economic organization, their cultures, uses and practices, languages and religions, as well as their habitat and originary rights on the lands that they have traditionally occupied, which are necessary to develop and preserve their way of life. .Venezuela (art. 119)

2. Collective possession Indigenous Peoples are entitled to the collective possession of sufficient extensions of land apt for the preservation and development of their traditional way of life (…).Paraguay (art. 64)

3. Special protection and prohibition of relocation

Public goods, natural parks, community land occupied by ethnic groups, community land at large, the archeological heritage of the nation and such other goods as provided by law, are inalienable, non-lapsable and unattachable. Colombia (art. 63)

The relocation of indigenous peoples is expressly prohibited, unless it is done “ad referendum” of the National Congress in the event of catastrophe or epidemics, in which case immediate return once the hazard has ceased must be guaranteed. Brazil (art. 231, 5)

4. Different territorial notions Lands traditionally occupied by indigenous populations are the lands occupied by them on a permanent basis and used for farming, the land that is necessary for the preservation of the natural resources necessary for their welfare and for their physical and cultural reproduction according to their habits and traditions. Brazil (art. 231, 1)

5. Expansion of the territorial area

The Congress shall:(…)acknowledge the legal status of the communities and the community possession and ownership of the lands traditionally occupied by them and shall regulate the availability of other portions of land that shall be sufficient and apt for human development; (…) Argentina (Art. 75, 17)

6. Process of demarcation, setting boundaries,

registration and perfection of title

The Executive Power:

(…)

With the participation of the indigenous peoples shall demarcate and guarantee the right to community ownership of the land, (…)

Demarcation of the indigenous habitats referred to in Article 119 of this Constitution shall be concluded within the term of two years as from the date of effectiveness of this Constitution.

Venezuela (arts. 119 and provisional regulations)

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Recognition Example7. Cultural heritage The State shall acknowledge and guarantee to the Indigenous

Peoples, in conformity with this Constitution and the effective legislation and in a framework of respect for the public order and the human rights, the following community rights: (…)To preserve, develop and manage their cultural and historical heritage. Ecuador (art. 84, 10)

8. Renewable and non-renewable natural resources

The use of natural resources located in indigenous habitats shall be without infringing the cultural, social and economic integrity of such resources and is subject to prior information and consultation with the respective indigenous communities. The benefits of such use by indigenous peoples shall be ruled by the Constitution and by the effective legislation.Venezuela (art. 120)

The State shall acknowledge and guarantee to the indigenous peoples, in conformity with this Constitution and with the effective law, in a framework of respect for the public order and for the human rights, the following collective rights: (…)To be consulted on the prospecting and exploitation plans involving non renewable resources located within their lands that might have an environmental or cultural impact on them; to participate in the benefits rendered by such projects and, to the extent possible, to receive compensation for the social and environmental damage thus caused.(…)To participate in the use, usufruct, administration and conservation of renewable natural resources located within their lands. Ecuador (art. 84, 4-5)

9. Intellectual property on biodiversity and genetic

resources

The collective intellectual property of the knowledge, technologies and innovations of the indigenous populations is guaranteed. All activities related to the genetic resources and to the knowledge related thereto shall pursue the collective good. The registration of patents on such ancestral resources and knowledge is prohibited. Venezuela (art. 124)

10. Indigenous peoples in border areas

Colombian citizens are: By choice:(…)c) The members of indigenous peoples who share borderline territories in application of the reciprocity principle as provided by public treaties.Colombia (art. 96)

Exceptions: tax exemptions The State shall acknowledge and guarantee to the indigenous peoples, in conformity with the provisions of this Constitution and of the effective law, respect for the public order and the human rights, the following collective rights: (…)To preserve the non-lapsable ownership of community land, which shall be inalienable, unattachable and indivisible, with the only exception of the power of the government to declare their

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Recognition Examplepublic benefit. Ecuador (art. 84, 2)

Source: Gregor Barié, based on data from Barié, 2003 and the Inter American Development Bank, Databank on Indigenous Legislation: www.iadb.org.

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ANNEX 4.1 – OIL REVENUE VOLATILITY IN SELECTED COUNTRIES, 1997-2000

 

Oil Revenue (in percent of GDP) [1]

Volatility of oil revenue (in percent) [2]

Total Revenue and Grants (in percent of GDP) [1]

Volatility of total revenue (in percent) [2]

Oil Revenue (in percent of total revenue) [1]

Coverage

Azerbaijan 5.7 29.1 19.6 5.1 28.6 General governmentAlgeria 21.4 25.9 32.7 13.3 64.4 Central governmentBahrain 13.0 26.3 24.6 15.1 51.9 Oil and gasCanada [6] 25.9 46.2 0.5 General government [3]Colombia 2.6 38.3 27.7 2.8 9.4 Nonfinancial public sectorEcuador 7.4 32.1 25.1 15.9 31.3 Nonfinancial public sectorIndonesia 5.6 32.7 17.5 11.5 31.1 Oil and gas. General government. [3]Iran 13.3 42.0 25.5 18.2 49.8 Oil and gas. General government.[4]Kuwait 38.6 19.2 60.7 13.3 63.0 Oil and gas. [6]Libya 23.0 8.0 39.0 14.7 59.9 Consolidated government.Mexico 5.3 17.7 21.5 4.4 24.7 Public sector. Excludes excises on gasoline.Nigeria 23.8 39.3 31.8 28.6 72.4 General governmentNorway 8.9 30.8 52.3 4.0 16.9 General governmentOman 30.2 15.6 39.5 6.9 76.0Qatar 16.7 27.4 28.6 19.9 57.3 [3]Russia 3.8 26.4 13.1 14.2 28.8 Oil and gas. Federal government.Saudi Arabia 24.6 27.4 33.6 15.5 72.0 Central governmentYemen 21.6 31.9 33.1 20.4 63.8 Central governmentUnited Arab Emirates 18.2 22.4 34.6 6.3 52.0United States [7] 31.1 29.9 1.6 General government [8]

Venezuela 12.2 34.6 25.9 13.8 45.7Public sector (excl. nonrecurrent operations)

Source: Ahmad and Mottu (2002). Notes:[1] Average during 1997-2000[2] Defined as the standard deviation in percent of the mean over the period 1997-2000.[3] Fiscal year starting on April 1.[4] Fiscal year starting on March 20.[5] Fiscal year ending on June 30.[6] Resource Revenue in provinces of Alberta and Saskatchewan

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[7] Oil revenue in the state of Alaska.[8] Fiscal year ending on September 30.

ANNEX 4.2. Decentralization Strategy: Policy Options beyond the ConstitutionConstraints for

DecentralizationDiagnostic Decentralization Strategy Policy Options for the

Short-termPolicy Options for the Medium-term

Policy Options for the Long-term

Stra

tegy

Fact One:Decentralization is driven by the struggle over natural resources.

1. Lack of a coherent decentralization strategy:(i) Sequence.(ii) Entry points: levels of government, not sectors.(iii) The nature of regional governments.

(i) The Principles of Decentralization: Finance should follow functions; define responsibilities clearly; fiscal neutrality and responsibility.(ii) Strategy with five elements:Develop a vision regarding roles of future regional governments.Balancing symmetric and asymmetric elements. Entry points and sequencing. Incentive frameworks. Manage transitions: sacrifice allocative efficiency for fiscal responsibility.

Decentralization Strategy:(i)Pre-condition: a minimum political consensus.(ii) Fiscal: achieve basic level of equity in transfers (per capita formula).

(iii) Institutional: ensure basic institutional capacities.

Decentralization Strategy:i) Maintain, and (ii) increase the quality and efficiency of public expenditures, through separation of roles and responsibilities, sectoral funding formulae, and a reduction of ear-marking.

Decentralization Strategy:Once there has been a successful application of measures proposed in the short- and medium-term: deepen decentralization through providing regional governments and municipalities with additional responsibilities and resources.

Inst

itutio

ns

Fact Two:Services are deficient across all sectors and regions.

2. Weak Institutional Arrangements: (i) Lack of institutional mechanisms to discuss and solve conflicts among levels of government.(ii) Poor management tools.(iii) Resources: Lack of autonomy for allocation of resources.(iv) Responsibilities: Overlapping and disjointed responsibilities (education, health, roads).

Institutional Strengthening: (i) SAFCO systems at departmental level; sector-specific systems and requirements (preparatory phase). (ii) Resources: Human resource management: wage and career policies.(iii) Responsibilities: Service quality indicators for sectors. Monitoring and evaluation.

Institutional Strengthening: (i) Clarify roles of levels of government by separating responsibilities.(ii)Adjust expenditure ear-marking.

Institutional Strengthening: (i)Responsibilities: Consider transferring new expenditures (educations, roads, health).(ii)Strengthen intergovernmental coordination.

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Fisc

al

Fact Three:There is no room to increase public spending.

3. Inequitative fiscal decentralization(i) Ear-marking of revenue.(ii) Transfer of revenue without expenditures. (iii) Volatile and uncertain resource flow.(iv) High levels of transfer dependence. (v) High and increasing regional inequality in transfers. (vi) Weak fiscal responsibility and poor management of sub-national debt.

Fiscal Decentralization: (i) Transfers: new formula (per capita).(ii) Fiscal neutrality: renegotiate hydrocarbons revenue transfer for adoption of expenditures.(iii) Fiscal Responsibility: basic rules (including moratorium for departmental debt).

Fiscal Decentralization: (i) Gradual introduction of funding formulae in key sectors. For education (per student formula) and health (per capita formula).

Fiscal Decentralization: (i)Transfers: refine per capita formula with other methods.(ii)Eliminate ear-marking of revenue; stabilizing transfers.(iii)Taxes for depart-ments: domestic share of ICE, sales tax for gasoline.(iv) Consolidate fiscal responsibility: multi-year commitments.

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ANNEX 5.1. CONSTITUTIONAL ACKNOWLEDGEMENT OF COMMUNITY JUSTICE IN BOLIVIA, PERU,

ECUADOR, VENEZUELA AND COLOMBIABolivia (1994) Peru (1993) Ecuador (1998) Venezuela (1999) Colombia (1991)

Art. 171.

III. Natural authorities of indigenous and farmer communities may exercise administrative functions and own norm enforcement functions as an alternative conflict solution, according to their customs and procedures, as long as these are not contrary to this Constitution and the laws. The Law makes these functions compatible with the authority of the Powers of the State.

Art. 149°.

The authorities of Farmer and Native Communities, with the support of Farmer Rounds, may exercise jurisdictional functions within their territorial environment according to the ancestral right, as long as this is not in violation of the fundamental rights of the person. The law establishes the ways to coordinate this special jurisdiction with the Peace Courts and other organizations of the Judicial Power”.

Art.152°.

The Peace Judges come from popular election. Such election, its requirements, its jurisdictional performance, training and the duration of their positions are regulated by law. The law may establish the election of the first resort judges and determine the adequate mechanisms.

TÍTLE VIII

OF THE JUDICIAL FUNCTION

Chapter 1. Of the general principles

(...)Indigenous Peoples authorities will exercise justice functions, applying their own norms and procedures for the solution of internal conflicts according to their customs or ancestral law, as long as these are not contrary to the Constitution and the laws. The law will make those functions compatible with the national judicial system.

Chapter III

Of the judicial Power and the System of Justice.

First Section: Of the General Dispositions

(...)

Art. 260. Legitimate authorities of Indigenous peoples may apply justice instances in their habitat based on their ancestral traditions and that affect only their members, according to their own norms and procedures, as long as these are not contrary to this Constitution, to the law and to the public order. The law will determine the way in which this special jurisdiction will be coordinated with the national judicial system. (...)

CHAPTER 5

OF THE SPECIAL JURISDICTIONS

Art. 246.

Authorities of indigenous peoples will be allowed to exercise jurisdictional functions within their territorial environment, in accordance with their own norms and procedures, as long as these are not contrary to the Constitution and to the Laws of the Republic. The Law will establish the ways by which this special jurisdiction will be coordinated with the national judicial system.

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ANNEX 5.2 – GENDER RIGHTS DIMENSIONS IN LATIN AMERICAN CONSTITUTIONS

Acknowledgement of the Gender PerspectiveEcuadorian Constitution

Art. 50, 7

The Ecuadorian State must guarantee children and youth protection from negative programs or messages which promote race or gender discrimination.

Ecuadorian Constitution

Art. 67 The State must guarantee education, disregarding all kinds of discrimination and promoting gender equality.

Constitution of Costa Rica

Art. 95, 8

Principles which regulate voting rights: (…) Warranties for authorities and political parties’ candidates designation, according to democratic principles and without gender discrimination.

Use of LanguageHonduran Constitution

Art. 60 All men are born free and equal in rights (…).

Honduran Constitution

Art. 62 Each man’s rights are limited by the rights of others (…).

Paraguayan Constitution

Art. 48 Men and women have equal civil, political, social, economic and cultural rights (…).

Venezuelan Constitution

Art. 40 Political rights are exclusive to venezolanos and venezolanas, except some exceptions established in this Constitution (…).

Venezuelan Constitution

Art. 41 Only venezolanos and venezolanas by birth and without another nationality, may perform public office as Presidente or Presidenta of the Republic (…).

Public Participation and Positive Action MeasuresVenezuelan Constitution

Art. 40 Authorities will guarantee adequate and effective participation of women in the decision making levels of public administration.

Argentine Constitution

Art. 37 Effective opportunities equality among men and women to access public office and political parties’ positions will be guaranteed through positive actions in political parties and the electoral regime regulations.

Argentine Constitution

Art. 75, 3

Congress must “legislate and promote positive action measures that guarantee real equality in opportunities and treatment, and full participation in the rights recognized by this Constitution and by all withstanding international treaties on human rights, particularly in respect to children, women, elderly and disabled people”.

Colombian Constitution

Art. 40 Authorities will guarantee adequate and effective participation of women in decision making levels of public administration.

Economic, Social and Cultural RightsColombian Constitution

Art. 43 The State will specially support woman head of family.

Ecuadorian Constitution

Art. 37 The State will support women head of households.

Paraguayan Constitution

Art. 53 Establishes the legal obligation of providing assistance to women head of family.

Venezuelan Constitution

Art. 75 Acknowledges equality of rights and duties in family relations and establishes that the State will guarantee protection to the mother,

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father or those who act as head of family.Ecuadorian Constitution

Art. 36 The State will encourage women incorporation to remunerated labor, with equal rights and opportunities, guaranteeing identical remuneration for work of equal value. Labor discrimination against women is totally prohibited by the Constitution.

Venezuelan Constitution

Art. 76 The right to decide freely and responsibly the number of children that they want to conceive and the availability of means and information that ensure the practice of this right.

Farmer Communities and GenderParaguayan Constitution

Art. 115, 9 and 10

Support of farmer women is among the foundations of agrarian reform and rural development, specially those women who are head of family, as well as the participation of farmer women, in equal conditions as men, in land reform planning.

Brazilian Constitution

Art. 189

In relation to the distribution of rural lands via land reform, ownership titles and permits of use will be granted to the man or woman, or to both, independently of civil status, under the terms and conditions stipulated by law.

Progressivity and Sexual and Reproductive RightsVenezuelan Constitution

Art. 19 The State will guarantee to every individual, according to the progressivity principle and without any discrimination, indisputable, indivisible and interdependent practice and enjoyment of human rights (…).

Ecuadorian Constitution

Art. 23 The State will acknowledge and guarantee people’s right to make free and responsible decisions on their sexual life (art. 23).

Ecuadorian Constitution

Art. 39 Responsible motherhood and fatherhood are promoted, guaranteeing people’s right to decide on the number of children they can conceive, adopt, support and educate. It will be the State’s obligation to inform, educate and provide the means that contribute to the execution of this right.

Ecuadorian Constitution

Art. 43 State will encourage a culture for health and life, with emphasis on nutritional education of mothers and children, and on sexual and reproductive health, through society participation and collaboration with social communication media.

Venezuelan Constitution

Art. 76 Couples have a right to freely and responsibly decide the number of children that they want to conceive and to have the means and information headed to ensure the execution of this right.

Paraguayan Constitution

Art. 61 People’s right to freely and responsibly decide on the number and frequency of their children births is acknowledged, as well as the right to receive, in coordination with the pertinent organizations adequate education, scientific orientation and services on this matter. Likewise, the State will establish special reproductive health and mother-children health plans for its low income population.

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