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In a very busy Wednesday, Bolivia’s Plurinational Constitutional Tribunal struck down a longstanding law criminalizing “contempt” toward public officials and limited the scope of an anti-corruption law; rounding out the court’s surge into the headlines, justice Gualberto Cusi made biting comments on the government’s failure to abide by the court’s ruling on the TIPNIS consultation.
Contempt law ruled unconstitutional: The Tribunal found, in Judicial Ruling 1250/2012, that the law prohibiting contempt (“desacato” ) towards senior public officials through defamation is an unconstitutional violation of the freedom of expression. The court advised public officials that they may use civil court procedures to deal with slander, and nullified the law in its entirety. Numerous opposition figures, including the center-left Mayor of La Paz, Luis (Lucho) Revilla, and the right-wing Governor of Santa Cruz, Ruben Costas, have been indicted under this very broad statute following complaints from the governing Movement Towards Socialism party.
The “Marcelo Andrés Santa Cruz” Anti-corruption Law cannot be applied retroactively: In the first legislative session under the new Constitution, the Movement Towards Socialism supermajority wasted no time in approving a new law criminalizing corruption. The law allows for severe penalties against officials who took bribes or other compensation to change policies. It was designed to give the government room to revise contracts and licenses approved under improper influence, and to recover fortunes which had been pilfered from the government. However, it was also referred to as the “Guillotine Law” (including by the Vice President) for its ability to end the political careers of past government officials. On Wednesday, the court sharply limited this aspect, finding that the law may not be applied retroactively “when the sanction [it imposes] is more severe or the act being judged would not have constituted a crime when it was carried out.”
Gualberto Cusi speaks out on TIPNIS: The Constitutional Tribunal had already ruled on the TIPNIS consultation, insisting that any process establishing the will of the communities in the Isiboro-Sécure National Park and Indigenous Territory about the proposed Villa Tunari–San Ignacio de Moxos highway, which would cut through the region and accelerate already serious deforestation, must occur in a mutually agreed framework. Justice Gualberto Cusi—the judge who received the most votes in last year’s judicial election—denounced the current consultation process as a “disaster” that violates the indigenous inhabitants’ rights. Further, the justice suggested that the TIPNIS indigenous may need to look outside Bolivia for protection of their rights: “I believe that in Bolivia, no[, nothing can be done.] It will have to be the indigenous who appeal these acts to international tribunals. Yo creo que en Bolivia no (se puede hacer algo), tendrán que ser los indígenas quienes apelen a estos hechos en tribunales internacionales.” The most likely forum for international appeals is the Inter-American Court on Human Rights, which has been a pathbreaking forum for indigenous rights.
None of these rulings would be particularly exceptional for a high court around the world, but this particular high court is in its first year, and came out of a controversial nominating and election process which was boycotted by multiple opposition forces. For it to strike down major laws embraced by the governing party and publicly embrace human rights standards around freedom of expression, indigenous consultation, and ex post facto laws makes this something* of a Marbury v. Madison moment for the new court.
* The analogy is inexact since a Constitutional Tribunal began operation in 1999.
Cochabamba’s Water War in 2000 was the beginning of a long and upward climbing story of the country’s resistance to neoliberal policies. That story joins the defense of the right to grow coca leaves by farmers nearby in the Chapare and near La Paz in the Yungas, resistance to the privatization and export of Bolivia’s gas resources, demands for greater indigenous self-governance, and calls to rewrite the constitution. The forms of pressure pioneered or revived in the Water War played a key role in all of them.
But what became of the water? Bechtel’s demands for international arbitration after it was kicked out of Cochabamba dragged on from 2002 to 2006, when it was the first such international case to be withdrawn under popular pressure. Cochabambinos got a public water system, managed by a municipal company called SEMAPA. And Bolivia’s new constitution proclaims water as a human right.
Yet, on the ground, things are more complicated. The first, critical thing to understand is the massive role of neighborhood water associations play in supplying water here. The municipal water service only provides water to about half the city’s burgeoning population, mostly in the central area and the wealthy northern zone. In the massive Zona Sur, few people have direct water connections. Instead, neighbors have organized themselves into associations to build their own tanks, pumps, wells, and cisterns that supply water locally. Nearly all these systems have some kind of holding tanks and distribution pipes, but not all have their own water sources. Those that don’t rely on outside water to be trucked in, and then distributed.
Much of this week’s Water Fair was an opportunity for these groups to network and also to showcase their operations. Three sides of a soccer field were surrounded by tents that hosted each of these associations, most with their own scale models of their neighborhood and the self-financed apparatuses that supplies its water. A great deal of ingenuity is going into repurposing automotive motors to run pumps, to finding water sources and maintaining wells, to keeping the neighborhood organized.
And it was these organizations members that blockaded the southern entrances to Cochabamba in 1999 and 2000 when they were threatened with privatization. (The concession owned by the Franco-American corporation Aguas de Tunari included the infrastructure created by numerous water committees.) Their members went from building and maintaining pipes or paying into a local cooperative to fighting in the streets to maintain what they built. And, most surely thought, to reclaim an accountable, publicly-owned water utility that would provide for all.
SEMAPA has fulfilled its half of that dream. The company has been plagued by mismanagement, failure to invest in major expansion, and internal corruption. Thursday night, a panel on SEMAPA since the Water War was primarily an opportunity for former directors, a former community board member, engineers, and investigative journalists to describe what has gone wrong. It was, to be fair, also a remarkable opportunity of the kind of transparency that a utility that was won by the public is subject to: the managers offered a level of internal detail that would be shockingly frank in the United States. But coverage of the city remains around 50%, while the company only bills about half the water it supplies, with much of the remainder clandestinely siphoned by industrial users or received without payment by parts of the municipality.
Nowadays, when the water committee members dream of the future, they do so outside of SEMAPA. There is an association of the committees called ASICA-SUR, engaged in running trucks with water to supply the source-less committees, maintaining water quality standards, facilitating new committees, and planning for universal access. Cochabamba uses more water than flows in its own valley, and an Italian-backed project is under construction to supply water from the Misicuni River. When that water is coming, ASICA-SUR would like its own direct connection, outside SEMAPA.
The idea of a universal public service, accountable to all, is not necessarily just a dream. But it has proved elusive here in Cochabamba. Small-scale alternatives based on community involvement have been a real, viable alternative, and the way that much of the Zona Sur receives its water. The bottom-up organization of ASICA-SUR has found a secure foundation in local groups that require the direct involvement of neighbors. Without economies of scale and piped connections, however, they do so at a higher price that other Cochabambinos, and that is when they don’t rely on trucks to move their water or private middlemen to supply it. Large-scale decisions remain to be made, and large infrastructure is a major part of the city’s water future. Meanwhile, the pollution of underground water sources is putting some of the community-based water systems at serious risk, particularly around the unregulated municipal dump Kara Kara. In the end, the Water War has to be fought again and again, in local organizations, in planning discussion, and in pressure on the streets.