Indigenous Justice or Western Justice in Bolivia?

Juan Karita/AP Photo / A man casts his ballot in a referendum on a constitution at a voting center in El Alto, Bolivia on January 25, 2009. Bolivia’s 2009 constitution recognizes the validity of indigenous justice in settling disputes.

A university program is teaching indigenous justice

Tucked away in a hidden corner of La Paz, Bolivia’s public University of San Andrés’ law school is an unusual place. The Technical Training in Community Justice Program is the only university-level program of its kind in Bolivia. It is also one of the first in the Americas, although programs that emphasize indigenous approaches to justice are growing steadily, according to Dr. Val Napoleon, of the University of Victoria in British Columbia.

Bolivia’s 2009 constitution recognizes the validity of indigenous justice in settling disputes. As very few courts exist in rural areas where almost all the population is indigenous, the Community Justice Program’s director, Dr. Liborio Uño explains that, “indigenous customary practice is widely utilized. This legal system covers 85 percent of our national territory and about 30 percent of our population.” Indigenous people become subject to the ordinary justice system when they come into conflict with a non-indigenous Bolivian citizen or are accused of committing a crime in an urban area.

Tensions are rife between the indigenous and the westernized systems, as decisions reached through indigenous justice are often ignored. In a particularly flagrant recent case, community leaders in Zongo east of La Paz were imprisoned for two years awaiting an ordinary justice case brought against them by a mining company that the community had expelled under indigenous justice. The community appealed to a higher court, which released them and recognized indigenous jurisdiction in the case.

Indigenous people are at a disadvantage under ordinary justice because frequently they lack the legal papers to prove their property claims. “Indigenous people have very little faith in the legal system because it has been used to steal our land for centuries,” says Uño.

Cintia Irrazabal is the Community Justice Program’s academic secretary. “We are all very committed to indigenous justice because we have seen what positive impacts it can have,” she says. But she acknowledges that it is hard work keeping the program alive. “Our biggest struggle is lack of help from university authorities, including the law faculty itself. Our program is perceived as something rather folkloric, to be respected, but not to be taken very seriously.” She notes that the students in the program have little interaction with students from the regular law school.

Since 2001, 50 to 60 students, mostly from highland communities, have graduated every year.

There are 14 professors—three of them are program graduates. Most of them work with the public university’s law faculty as well, but the indigenous justice program is where their hearts are.

All the students in the program can carry out internships in their communities. “I was an authority last year in my husband’s community, which took a huge amount of our time and resources,” explains Community Justice student Hermógenea Calderón Laura. “But we are very proud that we organized three seminars on our legal rights.”

Every year approximately 3,000 cases are resolved through indigenous justice without any cost to the state, Felix Cardenas, Bolivia’s Vice Minister for Decolonization, told the national newspaper La Razónl**.“‘Ordinary’ justice judges get paid,” says Uño, “and so should people administering indigenous justice. After serving a year, a community leader comes out poorer than s/he went in because no budget exists for expenses.”

Linda Farthing / Dr. Liborio Uño is the Community Justice Program’s director.

Indigenous law to date only functions in rural areas. Student Francisco León León argues, “We need urban ayllus if we want to apply indigenous justice in the city.” An ayllu is a pre-invasion organizational form in Bolivia’s highlands that combines both kinship and territorial ties. Membership generally includes a requirement to serve as a rotating leader.

“We believe the best solution is not to punish people, but to emphasize resolution,” says Calderón Laura. “We want people to reflect on what they did wrong and why, and accept the punishment as part of their paying their debt to the party who was harmed and to society.” In most parts of the highlands, the most extreme consequence for a misdeed is to be permanently thrown out of your community.

On the other hand, some students argue for physical punishment. Francisco Gil Mamani recalled, “When I was young, my father would whip me when I misbehaved. He learned the practice from the landowners when we were serfs. I think we should use this now because it would reduce the number of delinquents.”

This attitude towards corporal punishment is widespread in Bolivia, and indigenous communities are no exception. Outside lowland Rurrenabaque, a Tacana tourist guide, Wilman Matty Valle, who works at a community-run ecotourist lodge, pointed to a set of wooden stocks. “We put people who violate our norms into the stocks for a few hours. It usually convinces them not to break the rules,” Matty Valle said.

“We often confuse what are our traditional customs with those that came with the Spanish invasion,” says León León. “In many ways, I think the damage done by colonialism is irreversible. It has thrown our society out of balance.”

Linda Farthing/ Dr. Liborio Uño is the Community Justice Program’s director.

The 2009 constitution requires public officials to speak an indigenous language, and guarantees indigenous prisoners the right to a translator. By 2016, a considerable number of judicial system administrators had taken language classes but lack sufficient skills to accurately present cases in another language. This is a gap the program’s graduates fill. Many now have jobs as translators in the ordinary justice system. Others serve as advisors in rural municipalities.

Uño feels the current forms of indigenous justice face certain limitations. “Given that we have no appeals system in indigenous law, we should consider a council of leaders as the second level in proceedings,” he argues.

Indigenous law can be strengthened, according to Uño, “by educating the indigenous population about international human rights law—particularly the presumption of innocence and the right to a defense.” Research by non-governmental organization Fundacion Construir demonstrates that the majority of Bolivians believe in preventive detention for anyone accused of a crime, resulting in one of the highest rates of incarceration without a trial in Latin America.

“Indigenous justice works much better than ordinary justice,” says Calderón Laura. “It prioritizes the community, not just the individuals in conflict.”

León León agrees, “The holistic approach taken by indigenous and community justice is faster, more economical, and ultimately more effective.”

Comments

Stories