Countries at the Crossroads 2007 - Bolivia

(Scores are based on a scale of 0 to 7, with 0 representing weakest and 7 representing strongest performance.)

Introduction

Bolivia has experienced significant political instability over the last five years, a trend that continued between November 2004 and March 2007. With a constituent assembly now engaged in the task of rewriting the Bolivian charter, fundamental questions of state structure – as well as what it means to be Bolivian – are under consideration, with high stakes for all citizens.

In June 2005, President Carlos Mesa was forced to resign following three weeks of nationwide social protest, the second president in three years to do so. Mesa was unable to achieve consensus on vital issues, including nationalization of the oil and gas industry, demands for autonomy from lowland elites, and the convocation of elections for a constituent assembly. The leftist opposition and the general public rejected the next two figures in the line of succession – the leaders of the Senate and Chamber of Deputies – because they were perceived to represent the corrupt and discredited elite. After pressure from Mesa, the Catholic Church, and regional and international leaders, both stepped aside in favor of the politically independent chief of the Supreme Court, Eduardo Rodriguez, who was constitutionally required to hold new elections. During this period, the police and the military demonstrated admirable restraint in the face of provocations from protesters; this moderation stood in stark contrast to the harsh repression of protesters by security forces that played a major role in the ouster of former president Gonzalo Sanchez de Lozada in October 2003.

The election of coca growers leader Evo Morales and the Movement toward Socialism (MAS) party on December 18, 2005, with an absolute majority (54 percent) of the vote, provided a moment of catharsis and euphoria for the disenfranchised and frustrated indigenous majority. The large margin of victory allowed Bolivia to avoid a power struggle in the post-electoral period and marked the collapse of the old political party system and the tradition of pact-making and patronage distribution that had sustained it. Top leaders in the military and Morales's main challenger, Jorge Quiroga, discouraged confrontation by pledging to respect the results.¹

President Morales's inauguration on January 22, 2006, temporarily ended large-scale social mobilizations, although sectoral protests continued on a smaller scale. Political instability continues, however, owing to Morales's twin determinations to disregard his opponents and to utilize social movements to build support in the streets. Until late 2006, government supporters and opponents employed largely nonviolent tactics, with the exception of some incidents concerning land and natural resources issues. However, at the end of the year and into 2007, violent attacks increased as indigenous and poor peoples' organizations and their supporters clashed with mestizo and white individuals and groups threatened by the formers' increasing political hegemony.²

By January 2007, serious fissures had developed within the diverse MAS coalition owing to ideological discrepancies and the struggle among rising political leaders for control over state jobs. On the one-year anniversary of his presidency, Morales replaced seven of 16 cabinet ministers, including several controversial figures, with individuals having more technical expertise and stronger links to the MAS's labor-union base than to its indigenous supporters.³

A generally positive economic climate and assistance from foreign donors has helped Morales fulfill some of his promises. Robust earnings from gas exports produced GDP growth of over 4 percent in 2006. Tax income increased 46 percent to $1.71 billion due to increased hydrocarbon tax revenues. Additional revenues from gas are expected to bring the government approximately $1 billion annually after 2007, which will enable it to invest in a number of poverty alleviation, health, and education programs.⁴ This relative economic prosperity may help account for the government's 70% approval rating in a 7 February 2007 poll of major cities.⁵

Several hurdles identified in the 2005 Countries at the Crossroads report have been overcome: hydrocarbon taxes and royalties have been renegotiated with investors on terms favorable to the government, and a constituent assembly has been elected and convened. Other hurdles remain: confrontation between lowland economic elites and highland, indigenous social movement organizations over departmental autonomy and land reform have strong racial overtones and are increasingly resulting in violence.⁶ Additionally, the Constituent Assembly, already charged with tackling highly sensitive issues, saw its work delayed by squabbling over procedural issues.

Accountability and Public Voice – 4.56

Free and fair electoral laws and elections: 4.75
Effective and accountable government: 3.50
Civic engagement and civic monitoring: 5.00
Media independence and freedom of expression: 5.00

The openness of Bolivia's democratic regime is exemplified by the rise of the MAS from regional upstart in the 1995 municipal elections to decisive victor in the 2005 presidential contest. The public's ability to express its preferences increased in December 2004 with the incorporation of citizens running on behalf of "citizens' groups" and "indigenous peoples" into the electoral system. Moreover, the December 2005 presidential and congressional elections witnessed 84.5 percent electoral turnout, the highest since the transition from military rule.⁷ Although there were reports of a large number of voters being purged from the rolls for failing to participate in previous elections, polling was generally considered free and fair, as demonstrated by the considerable success of candidates opposing the status quo. While there are still no effective campaign finance limits, parties with representation in office received public funding in proportion to their representation.⁸

The results of the election demonstrate significant reconfiguration within a political party system that had been in flux since 2002. The traditional leading parties – the Leftist Revolutionary Movement (MIR), Nationalist Revolutionary Movement (MNR), and Nationalist Democratic Action (ADN) – nearly disappeared, with only MNR winning any congressional seats. Overall, the MAS coalition won 72 out of 130 seats in the Chamber of Deputies, to only 43 for the main opposition party, Social and Democratic Power (PODEMOS). In the Senate, however, PODEMOS gained 13 of the 27 seats to 12 for the MAS; as opposition candidates also won the other two seats, the upper house was expected to provide a check on MAS power (see below). Concurrent elections for departmental prefects – the first time these figures had been directly elected – resulted in victory for 4 PODEMOS candidates and 2 other opposition members, while the MAS won just 3 of the 9 prefectures.

On July 2, 2006, 85 percent of registered voters participated in elections to select delegates for the Constituent Assembly. The MAS elected 137 out of the 255 delegates to the assembly. Collectively, the main opposition parties won 86 seats in a largely fair environment. The majority of the delegates are political newcomers representing labor unions and rural peasant groups. The assembly opened on August 6, 2006 with a symbolic march of indigenous people, who were joined by soldiers in a show of national unity.⁹ The session started without prior consensus on important issues such as regional autonomy, land reform, resource exploitation, and the role of traditional indigenous social and legal structures under the new charter. For the first six months of the assembly's mandate, however, the assembly was unable to perform its role because MAS delegates used their absolute majority to overturn the stipulation in the law convoking the assembly that required a two-thirds vote of approval for each article in the new constitution. Tension over the issue built throughout the year, and by December opposition delegates and thousands of supporters throughout the country had launched hunger strikes and protests. Some MAS militants threatened and attacked strikers, without rebuke from the president.

On February 14, 2007 a fragile accord on the voting issue was reached that allowed substantive discussions to begin on February 26. Under the agreement, the first draft constitution is to be approved by an absolute majority of the assembly delegates, with specific articles approved by a 2/3 vote until July 2. Thereafter, remaining and contentious articles are to be forwarded to a reconciliation commission composed of party leaders and commission presidents. The assembly must approve the final draft by a 2/3 vote. Issues on which no consensus can be reached will be put to a national referendum. The accord also incorporated language promising to respect the results of the July 2006 autonomy referendum.¹⁰ By law, the assembly must be dissolved on August 6, 2007, although the date could be extended.

Achieving an effective separation of powers has been a consistent problem in Bolivia. Since January 2006 legislative stagnation has resulted from polarization between the MAS majority and a weakened and reconfigured opposition. The executive branch persistently attempts to work around the Senate (where it lacks a majority), uses its majority in the lower house to stifle opposition, refuses to negotiate with opponents, and convokes protests to suppress constitutional opposition and avoid negotiation.¹¹ President Morales refuses to negotiate in good faith with most opponents. As moderate members of the MAS coalition in congress and the Constituent Assembly have tried to find common ground with the opposition in order to move forward on pressing policy issues, Morales increasingly has expelled or penalized dissident voices within the governing coalition. This refusal to negotiate is exemplified by actions with respect to exploitation of the land redistribution and regional autonomy issues.

President Morales achieved passage of a far-reaching land distribution law on November 28, 2006 in the face of strong Senate opposition: with 12 of 27 members boycotting the session, the law passed in a 15-0 vote. Critics noted that the law passed in the Senate only after "alternates" for two opposition-party senators were induced to vote in favor of the bill, a practice that violates the constitutional role of alternates. The new law and the tactics with which it was passed provoked landowners, who launched strikes and road closures and increasingly are resorting to private security forces to protect themselves from land invasions.¹²

A referendum on the tense issue of regional autonomy was held concurrently with the Constituent Assembly elections. The balloting resulted in passage of the referendum in four of Bolivia's nine departments, all in the eastern lowland part of the country, and all of which have felt threatened by the political and economic program of the highland residents and lower classes that currently comprise the MAS' base. However, given that the referendum left ambiguous the specific form of autonomy, and that a majority of the population as a whole rejected the measure, the degree of regional self-government remains an open question that the Constituent Assembly is supposed to address.

Morales has resisted his legal obligation – and prior promise – to implement the affirmative response to the Regional Autonomy Referendum in the four departments in which it was approved. Morales's refusal to negotiate on this issue, and his provocative threats to the autonomy achieved thus far in the form of elected departmental prefects, impairs the possibility of agreement on any polarizing policy issue and of progress on institutional reforms. This inflexibility is also provoking violence between government and opposition supporters and between departmental and national levels of government.¹³ For example, on January 8, 2007, approximately 5000 MAS-affiliated coca growers and peasants clashed with supporters of departmental prefect Manfred Reyes Villa after Reyes called for a new autonomy referendum in Cochabamba department. Two persons died and several hundred were wounded in the following days of civil unrest. Tensions over the failure of the national government to defend departmental governments increased further after Morales named a key leader of the Cochabamba attacks to the position of Justice Minister on January 23.¹⁴

Civil society is a highly active force in Bolivia. Numerous community groups, unions, business federations, and NGOs mobilize citizens on behalf of a wide variety of causes while attempting to fill the many gaps left by the weakness of the state. NGOs with external funding often are able to influence policy because the government relies on international agencies for funding and technical support on many social policy issues. However, the high levels of poverty and illiteracy in Bolivia inhibit the ability of some groups to effectively structure themselves and coordinate their efforts.¹⁵ Furthermore, a vicious circle obtains with respect to government weakness: its failings exacerbate complaints, leading to street protests to which the government cannot effectively respond, thereby weakening the government further. Finally, though politicization of civil society groups is not new, increased regional polarization has resulted in increasing tensions between civil society groups, and the offices of some NGOs and other groups were attacked during the unrest in December 2006 and January 2007.

The Bolivian press freedom environment is relatively strong. The government neither censors the media nor hinders internet access, and while libel remains criminalized, there are no recent reports of jail sentences being issued.

However, polarization within the media has increased along with polarization in the country as a whole. In late 2006, as opposition to the Morales government became more organized, attacks on both pro-government and pro-opposition media increased, with more than two dozen reported assaults on journalists in Cochabamba and Santa Cruz during the protests in December 2006 and January 2007. In addition, both state-run and opposition-aligned television stations were attacked on several occasions in 2006. The government has done little to protect journalists and media outlets from violent attacks. Morales has, on several occasions, characterized the media as an enemy. A survey of opinions expressed in the nation's six major dailies undertaken by a well-known journalist at the end of 2006 revealed a bias against the government and its social base of support, which is not surprising considering that white-mestizo elites own most major media companies.

Recommendations

• The Constituent Assembly should address urgent pending issues, including compromise on the issue of departmental autonomy and the creation of political institutions that incorporate indigenous authorities and values.
• The automatic purging from the voter rolls of citizens who did not vote in the previous election should be halted and all qualified citizens should be allowed to register to vote. Citizens who claim to have been wrongly purged should be able to cast a provisional vote.
• The government should refrain from attacking the press and make clear to its supporters, both rhetorically and, when necessary, through prosecution, that threats and intimidation directed against journalists are unacceptable.
• The Bolivian government should implement regional autonomy rights in the departments approving the referendum and desist from attacking such rights, rhetorically or legislatively.

Civil Liberties – 4.16

Protection from state terror, unjustified imprisonment, and torture: 3.00
Gender equity: 3.25
Rights of ethnic, religious, and other distinct groups: 3.75
Freedom of conscience and belief: 6.00
Freedom of association and assembly: 4.80

Bolivia has ratified the major UN human rights conventions. Since November 2004, Bolivia has also ratified multiple regional and global treaties and conventions related to the prevention of torture, genocide, and forced labor, among other civil liberties issues. The 1967 constitution, revised in 1995, 2002, and 2004, protects a wide range of civil and political rights, including freedom of religion, freedom of expression, and freedom of association.

Reports of human rights violations have declined since 2004. The Mesa, Rodriguez, and Morales governments exercised more restraint toward protesters and relaxed the strict coca eradication policy that had been a source of confrontations between police and civilians. Nevertheless, the nongovernmental Bolivian Permanent Assembly for Human Rights (APDHB) concluded in its 2006 report that the "state has systematically violated human rights." The APDHB reported 4,115 cases of human rights violations by state authorities in 2005. The group received 430 charges concerning physical mistreatment by the police, while in 252 cases the Ministry of Justice was accused of retardation of justice, abuse of authority, and corruption.¹⁶

Bolivian prisons suffer from a litany of problems ranging from violence to lack of adherence to dietary standards. In 2005 state penitentiaries were blamed for 240 cases of abuse of authority, illegal detention, and mistreatment. Prisoners, as democratically elected unions or as criminal gangs, continue to run most prisons. More than 1,300 children live with their parents in jail. In September and October 2005 a breakdown in order at the main penitentiary in Santa Cruz allowed the escape of 27 dangerous criminals, causing a major scandal. Indeed, the Santa Cruz prison is notorious as a center for criminal networks. Despite improvements in the processing of criminal cases, a main problem in keeping order is overcrowding: the national system was built to hold 2,895 inmates, but by 2003 the prison population exceeded 6,500 prisoners. Overcrowding occurs in part due to the slow processing of people who have been charged and are awaiting trial: 75 percent of the prison population has not been sentenced.¹⁷

The increased partisan violence in late 2006 and early 2007 resulted in increased international attention to human rights violations. In February 2007, the UN High Commissioner for Human Rights visited Bolivia to prepare to open a permanent office. In early March 2007 an Amnesty International mission exhorted the government to investigate the January clashes in Cochabamba as well as other reports of human rights abuses and impunity.¹⁸

Human rights monitors and activists are frequently threatened and harassed by state and private actors during the conduct of their duties.¹⁹ On January 24, 2007, the Observatory for the Protection of Defenders of Human Rights demanded protection for Bolivian activists in the department of Santa Cruz who had received threats in the course of their work.²⁰ Critics claim the Morales government has unjustly incarcerated and held, without due process, senior officials from previous governments for political reasons. For example, beginning in July 2006 Central Bank general manager Marcela Nogales was incarcerated and held for at least six weeks without being charged, in violation of Bolivian law.²¹

Violent and property crime have increased in recent years, including a marked swell in armed robberies against financial institutions. The failure of law enforcement to address the increase has led to a rise in vigilantism. Mob justice is rarely investigated or punished because police and prosecutors fear retribution and communities protect the perpetrators.

Many Bolivian women are unaware of their constitutional rights and suffer discrimination and abuse. Both the Mesa and the Morales governments, however, have worked to increase women's legal protections. One area of increased attention is domestic violence. Although the Panamerican Health Organization noted in 2005 that more than 50 percent of Bolivian women report suffering from domestic violence, this represents a decline relative to 1999. The Mesa government revised the Family and Domestic Violence Act to provide additional legal mechanisms to punish perpetrators of domestic violence, provide treatment for victims, and facilitate coordination among the government agencies responsible for implementation. In December 2006, the government introduced a Bill to Strengthen Human Security and Reproductive Sexuality, which contains components to protect women from domestic violence, as well as improve reproductive health by focusing on the provision of services in municipalities.

Employers are required by law to provide family leave benefits for women with young children and to make other special provisions for pregnant women and new mothers. Access to health benefits increased further on April 5, 2006, when the Constitutional Tribunal ruled that female workers have the right to share their health benefits with male partners.²² Still, owing to the greater expense of providing benefits for women, employers often discriminate when hiring.

Women's economic advancement is also impeded by their unequal access to property rights. The Mesa government recognized the problem in 2005 and the Morales government promised to give priority attention to women's need for land under the 2006 agrarian reform law. Under current law men can sell their land without their wives' consent; moreover, a widow may, be obligated to leave the land and return to her community of origin upon the death of her husband.²³

As in the Mesa government, 4 of 16 ministers appointed at the start of the Morales administration were female, including the high-profile ministers of justice and government. Nevertheless, women's participation is far below the gender parity that Morales had promised. Despite new quota laws designed to increase representation, women lost ground in the 2005 national elections: 30 women were elected to congress in 2002 (out of 157 seats), but only 22 were elected in 2005. None of the 9 newly elected departmental prefects are female. The law convoking elections for the 2006 Constituent Assembly required that male and female candidates be alternated on participating lists. As a result, 40 percent of candidates were female, but no participating political party or civic association made women's rights or issues an important component of its platform. As of 2005, women comprised approximately 20 percent of judges and prosecutors.²⁴

The U.S. State Department classifies Bolivia as "a source country" for adults and children "trafficked for labor and sexual exploitation." In recognition of recent efforts – passage in July 2005 of a new Law Against Trafficking of Children and Adolescents, the establishment of new anti-trafficking police units, a modest increase in protection of victims, the establishment by President Rodriguez of an interministerial commission to work on anti-trafficking issues and policies, and an increase in the number of prosecutions – Bolivia was upgraded from tier 3 to tier 2 in the 2006 Trafficking in Persons report.²⁵ Nevertheless, the government does not undertake significant efforts to enforce the laws and resources are insufficient to do so.

According to the 2001 census, indigenous peoples comprise approximately 62 percent of the population. Bolivia codified a limited array of rights for indigenous peoples in the 1994-1995 constitutional reform, including recognition of the legal standing of indigenous communities as public collective actors, the right to bilingual education, and the right of indigenous authorities to exercise administrative functions and to resolve internal conflicts. Violence between indigenous peoples and landowners in the east increased in 2006 in response to mobilization surrounding the new land law. Representatives of indigenous peoples argue that much of this violence is racially motivated. The Permanent Assembly reported at least 132 cases of violations of indigenous peoples' rights in 2005, including usurpation of lands, discrimination, and abuse of authority.²⁶

Bolivia is meeting its reporting requirements under the UN Convention on the Elimination of Racial Discrimination. Indigenous organizations are now widely consulted on government policy issues, and many leaders of indigenous organizations are serving in high-profile positions. This advance is attributable to the rapid rise of the MAS, which draws many of its candidates and government appointees from affiliated indigenous organizations. On January 21, 2006, the day before his official inauguration ceremony, Morales participated in a rite at the ceremonial city of Tiahuanacu, where traditional indigenous authorities gave their blessing. However, the small Afro-Bolivian community continues to be marginalized politically and economically, and has not benefited from the increased attention to indigenous peoples' needs.

Bolivians with disabilities are protected under the 1995 Persons with Disabilities Act. Enforcement agencies, however, are inactive in many parts of the country, and no penalties exist for noncompliance with nondiscrimination and accommodation laws. Most government and private buildings lack wheelchair access and, according to the Permanent Assembly, "in general special services and infrastructure to facilitate the circulation of disabled persons do not exist. The lack of adequate resources impedes the full implementation of this law."²⁷ The official ombudsman known as the People's Defender reported progress in providing access to state schools for students with physical and hearing disabilities; previously, only the blind were taken into account. In addition, in 2005 the government issued a decree requiring that government agencies register disabled persons in order to provide better health services.²⁸

The Bolivian constitution recognizes Roman Catholicism as the official national religion but guarantees religious freedom to all other groups. Non-Catholic religious groups must register with the government in order to engage in political or proselytizing activity, but no such registrations have been denied since the 1980s. The Catholic Church receives some monetary support from the state, and the Bolivian Bishops' Conference has some influence over Bolivian political life. The Church's greatest area of influence is in education, exemplified by its ability to change the content of the government's proposed education law, which would have explicitly instituted secular education in deference to indigenous peoples who reject Catholicism.²⁹ Minister of Education Felix Patzi, who proposed the controversial measure, was replaced during the January cabinet shuffle.

The constitution and the General Labor Law protect the right to form trade unions for lawful purposes, and both employers and employees are guaranteed freedom of association. The reaction of the state toward labor mobilization has varied in recent years, depending on the administration in office and the sector of the labor force protesting. President Morales has been more restrained than his predecessors in repressing this important part of his political base. Indeed, the government received criticism for its hands-off approach in dealing with an October 2006 clash between rival miners' groups that left 16 people dead in the town of Huanuni.

The large segment of the population working in the informal economy is unprotected. Forced labor is exploited widely in the timber industry in the Amazon, and the majority of victims are indigenous. Workers are paid in scrip or food and are routinely beaten and whipped for disobedience. Approximately 70,000 people work in conditions of slavery collecting nuts in the Amazon and are subjected to corporal punishment. In addition, an estimated 14,000 Guarani indigenous people live in slavery on plantations in three lowland departments, where they are forced to work for below-subsistence salaries and are frequently beaten.³⁰

Freedom of assembly is widely respected in Bolivia, and the volume of protests attests to a significant mobilizational capacity by civil society groups. The large number of dead in the 2003 crisis leading up to President Sanchez de Lozada's ouster resulted in a more cautious attitude with respect to the use of force to break up protests. Nonetheless, the increasing militancy and violence in the protests associated with regional rivalries have challenged the government's ability to balance free assembly against potential chaos.

Recommendations

• The government should construct new prison facilities and work to decrease the number of pretrial detainees in order to promote a more efficient, rehabilitative model of punishment.
• The new constitution should address weaknesses with respect to the treatment of gender, particularly with respect to labor and health rights, and provide full constitutional protection of gender equality.
• The government should strengthen efforts to train judicial and police personnel regarding gender rights in order to increase sensitivity to crimes against women and reduce patriarchal attitudes that hinder the application of nondiscrimination and anti-domestic violence laws.
• The government must combat conditions of forced labor by investigating abuses and punishing landlords who engage in the practice.

Rule of Law – 3.58

Independent judiciary: 2.80
Primacy of rule of law in civil and criminal matters: 3.50
Accountability of security forces and military to civilian authorities: 4.25
Protection of property rights: 3.33
Equal treatment under the law: 4.00

Bolivia's justice system is characterized by underpaid, poorly trained judges and administrative officials who are susceptible to financial and political pressure. Only 180 of the country's 327 municipalities have judges; just 76 have prosecutors. Inefficiency generates long delays and violations of defendants' rights. User fees, transportation costs, and the necessity of bribery to ensure prompt attention and favorable outcomes place civil proceedings beyond the reach of most Bolivians.

The independence of Bolivia's judiciary from the executive branch is questionable. Owing to the failure of the Congress to act on judicial appointments, in December 2006 President Morales appointed four interim Supreme Court justices to fill vacancies. Preceding governments made interim appointments in 2004 and 2005 for the same reason. Opposition congressional leaders complained that this was a political move intended to achieve control of the judicial system during the congressional recess. During 2006 the government made progress in institutionalizing and professionalizing administrative judicial appointments through competitive application procedures, including a series of examinations. Moreover, a new judicial discipline regime went into effect in January 2007. The Morales government reports advances in administration of justice, pointing in particular to the Constitutional Tribunal, where 100 percent of cases brought were resolved in 2006. Bolivia also demonstrated progress in 2005 and 2006 in speeding up criminal proceedings: average times were reduced from approximately 2 to 6 years to approximately 6 to 12 months (depending on the study cited), a decline of 75 to 90 percent.³¹ However, further progress with respect to judicial reform is delayed by the primacy of other urgent institutional and policy issues and by a lack of political will.

There are no effective legal procedures or independent agencies equipped to investigate and rectify problems in the justice system.³² Bolivians are presumed innocent until proven guilty, but public defenders are poorly trained, underpaid, and stretched too thin. There are only 56 public defenders, or 0.8 defenders for each 100,000 Bolivians, and they are only available in 11 municipalities. This represents an increase of 18 percent over 2002, but the budget for public defense has since been reduced by 28 percent.³³

The Morales government intends to expand the operation and increase the legitimacy of indigenous community justice systems, which are less expensive, more accessible, and more culturally sensitive than ordinary courts. The constitution recognizes the legitimacy of these institutions, and the government has submitted to congress a law that would grant community justice the same rank in the legal hierarchy as ordinary law. Critics contend that indigenous law offers neither provisions for defense of the accused nor an appeals process or higher authority to remedy abuses, and often employs sanctions such as corporal punishment and even execution.

The 2004 creation of neighborhood integrated justice centers, which provide free legal services to the indigent, increased access to justice for the poor majority. The centers have resolved more than 1,100 cases in conflict-prone regions. A January 2006 reform institutionalized and rationalized the new justice centers and created a system of elected justices of the peace for rural areas. As of January 2007, the reform awaited implementing rules.³⁴

As crime has increased in recent years, pressure from the public and prosecutors has increased on the government to revise the 2001 Code of Criminal Procedure due to the perception that it has resulted in an overly quick release of suspects awaiting trial. The current code benefits the innocent but leads to increased recidivism. A persistent problem is the lack of stability in the Ministry of Government, which has experienced frequent changes in leadership. Financial resources for effective law enforcement also are lacking. Nevertheless, the People's Defender insisted in its 2006 report that judicial officials repeatedly used lack of resources to justify "any lack, delay, or irregularity" in the administration of justice, problems that were due instead to "corruption, incompetence, and negligence." It reported 356 complaints against justice system officials in 2005 relating to failure to provide due process.³⁵

Civilian executives have exerted greater control over the military since 2004. This is attributable to a loss of prestige and autonomy caused by what most Bolivians consider to be the excessive use of force against civilians during the 2003 crisis that forced President Sanchez de Lozada's from office, as well as a scandal involving complicity in the dismantling of antiquated Chinese missiles at the behest of the United States.

In August 2005, in advance of the national elections, the armed forces high command announced that any member of the armed forces would face "drastic sanctions" if they were found to have violated the constitution by being directly involved in political parties or the new citizens' groupings. Since some were already involved as party founders and militants, the controversy led to the resignation of the vice-minister of defense. One week prior to the election armed forces leaders announced that they would obey the new president's orders to the letter and called on the new congress to choose Morales as president even if he won a plurality rather than an absolute majority.

In December 2005 the Rodriguez government issued a warrant for the arrest of the commander of the Bolivian Air Force after he failed to appear at a hearing in connection with the investigation of the 2003 massacre. Less than a week after taking office, Morales removed the entire high command of the armed forces in order to achieve closer control over it and its political activities. Critics charge that he is politicizing the institution.³⁶

Impunity for human rights abuses committed by the military and the civilian leaders who issue orders has long been the norm. However, on December 18, 2006, the public ministry brought formal charges of murder, torture, crimes against press freedom, genocide, and other serious crimes against former president Sanchez de Lozada and two of his ministers in relation to state repression of protests that occurred in September and October of 2003. All members of Sanchez de Lozada's cabinet have been charged with crimes, as have the former commanders of the armed forces.³⁷

Legal protection of private property in Bolivia is enshrined in the constitution but is weak. Extensive corruption in the judicial system renders it difficult for Bolivians to enforce contracts. In addition, Morales's rapid move to address land claims by the poor has led landowners to criticize the government for failing to negotiate with them in good faith and for failing to prosecute squatters who seize their property. The Morales government also has failed to defend the property rights of foreign investors and to honor written contracts. On the other hand, since Morales has taken office indigenous communities' property rights have been less threatened by private actors, although clashes continue in rural areas over land claims.³⁸

On May 1, 2006, Morales issued a decree that required foreign investors in the hydrocarbons sector to yield to the Bolivian state's "control and direction" of their operations in Bolivia and to negotiate new tax and royalties terms. The government achieved significant increases in the amounts that hydrocarbon companies pay: from $460 million in 2005 to an estimated $700 million in 2007, and more than $1 billion annually thereafter.³⁹ In February 2007, Morales began to fulfill his promise to nationalize the mining sector by seizing the Swiss-owned Vinto mine in Oruro. The government plans to continue nationalizing other mines that once belonged to Sanchez de Lozada.⁴⁰

Coca eradication efforts have declined under the Morales government, which destroyed just over 5,000 hectares in 2006, the minimum permitted under an agreement with the United States. Morales has resisted undertaking an independent European Union-financed study to assess domestic demand for coca leaf for traditional social and cultural uses, and has instead suggested allowing peasant communities to use their own "social control" mechanisms to self-police production levels. This strategy is likely to increase the production of coca leaf for international drug markets, as coca remains more profitable to produce than alternative crops.⁴¹

Recommendations

• Efforts should continue to provide resources and initiate programs that make justice more accessible to underserved geographic areas and social groups.
• Efforts should continue to professionalize judicial and investigative offices through competitive examinations, technical training, and efforts to improve relations with citizens.
• Military leaders must submit to civilian jurisdiction in the investigation of human rights abuses.
• The postponed EU-financed study of traditional coca leaf use should be undertaken immediately in order to determine the percentage of coca leaf production that can be considered legitimate to supply domestic demand versus the percentage that is likely diverted to the narcotics trade. Legal coca production should be reduced in line with the results.

Anticorruption and Transparency – 3.08

Environment to protect against corruption: 2.40
Existence of laws and ethical standards between private and public sectors: 3.00
Enforcement of anticorruption laws: 3.50
Governmental transparency: 3.43

Bolivia is one of the more corrupt countries in a region not known for its probity. In 2006 it received 2.7 out of a total of 10 possible points on Transparency International's Corruption Perceptions Index, placing it 105th out of the 168 countries ranked.

Firms are forced to navigate a complex bureaucratic system in order to do business. Payments to public officials to speed up bureaucratic procedures are common, and enforcement of laws and mechanisms regulating the bidding process is inadequate. A national survey found that 13% of interactions between individuals and public institutions require bribes, with an estimated cost of $115 million in 2005; nearly half of Bolivian households reported making an illicit payment to state actors in 2005.⁴² Most small scale bribes end up in the hands of the police, customs officials, or judicial officials.⁴³

In June 2005 President Rodriguez created a new cabinet position, Presidential Delegate for Transparency and Public Integrity, charged with overseeing governmental corruption investigations. Rodriguez also introduced a requirement that all public auditors within the public ministry take examinations. Of 230 auditors who completed the exam in 2005, 173 passed; of the 57 who failed, 39 were fired.⁴⁴ Several laws designed to combat corruption were passed in 2005, including the Financial Administration and Control (SAFCO) Law, the State Employees Statute Act, and the Sworn Declaration of Property and Income Law.

Morales made the fight against corruption a key campaign issue in the 2005 election. After assuming the presidency, he submitted to congress a bill aiming to establish a legal framework to investigate public officials and strengthen principles on ethics, transparency, and access to information.⁴⁵ Discussion of the bill began on December 8 and was continuing in March 2007. Critics complain that the law presumes the guilt of those investigated. Morales also downgraded the office for transparency and public integrity, which was seen as ineffective, to a vice ministry within the justice ministry.

Graft is widespread within the government. Financial disclosure procedures are inadequate and do not prevent officials from abusing their public positions for personal enrichment. It has become commonplace in recent years for public sector employees to move into private sector jobs in the same area of work, or vice-versa. According to a 2006 Transparency International report, "the use of privileged information and contacts by people switching between public and private sector posts in the same area of work has undermined the credibility of both sectors."⁴⁶ There have been numerous cases in which municipal officials have been found to be misusing public funds for personal benefit.⁴⁷

Tax collection and administration is also a complex, bureaucratic process, susceptible to corruption and graft. Tax returns are often challenged by officials; more than half of Bolivian companies have reported that tax officials have requested a "special payment" in return for reversing unfavorable decisions.⁴⁸

Several corruption cases have received attention in the media in the past year. Among others, five former presidents, an ex-Supreme Court chief, and a former Central Bank president have been accused of graft or negligent incompetence.⁴⁹ The lack of concrete evidence in many of the cases, and the tendency for those accused to be associated with the pre-Morales political elite, have led to accusations that the cases are part of an government effort to intimidate the opposition and consolidate power.⁵⁰ Morales, however, also dismissed several members of his own party in 2006, including deputy communications minister Jorge Estrello and MAS congressional leader Gustavo Torrico.⁵¹

In general, the media actively report on corruption cases. Morales's credibility on the issue of anticorruption declined in February 2007 after reports emerged in the press that between June and August 2006 36 employees of state hydrocarbon company YPFB (Yacimientos Petroliferos Fiscales Bolivianos) – whose jobs were supposed to be filled according to technical criteria – had been appointed through nepotism, as political favors, or in exchange for money. The scandal exposed at YPFB unleashed a wave of investigations into politically motivated hiring practices throughout the administration. President Morales promised a complete investigation and punishment of those who bought or sold jobs. In addition to the YPFB scandal, journalists identified a wider network of corruption penetrating virtually every government agency.⁵²

A weak judiciary, at times complicit in corruption, makes the pursuit of justice in corruption cases difficult. No law allows authorities to probe assets of public officials, and government officials are entitled to broad immunity against prosecution. Political pressure is often applied in the courts and cases are often drawn out and costly, discouraging individuals from taking their complaints to court.⁵³ There are few protections for witnesses and whistleblowers who participate in anticorruption cases, and the persistence of libel and defamation laws discourages citizens from coming forward. Business interests are particularly concerned about the politicization of YPFB, where technocrats have been replaced by inexperienced political appointees.⁵⁴ In August 2006 President Morales dismissed Superintendent Jorge Sainz after he acted as a whistleblower in a corruption case against the head of YPFB.⁵⁵

A 2001 law established "the right of civil society organizations and institutions to be informed of, oversee, and evaluate the results and impact of public policies and participative decision-making processes."⁵⁶ Since 1994 vigilance committees comprised of civil society representatives from each municipality have had the right to supervise the implementation of social projects and the procurement of goods and services. Committees must approve the municipal councils' annual financial reports, operating plan, and budget. In practice, however, vigilance committees do not play a robust role in planning or oversight.⁵⁷

On the national level transparency remains poor, despite a law passed in January 2004 covering access to information and transparency. A report published by the Open Budget Initiative in 2006 found that the Bolivian government provides citizens with "scant or no information on the central government's budget and financial activities."⁵⁸ The government does not regularly publish reports detailing spending, releasing only a yearly executive budget proposal, which itself provides only minimal information to the public.

Recommendations

• In order to encourage citizens to come forward, laws punishing slander or insult of public officials should be decriminalized and norms should be created to protect whistleblowers and witnesses involved in cases of public corruption.
• The anticorruption and transparency portfolio should be returned to the cabinet level and an experienced, politically independent minister should be named to lead it.
• The transparency of government decision making, particularly with respect to economic policy, should be improved by involving a wider array of civil society representatives in policy making above the municipal level. The vigilance committee model should be expanded from municipal governments to other areas and levels of government.
• National level officials should hold discussions with civil society groups to formulate and implement specific transparency measures, such as stricter asset reporting guidelines for municipal officials, more frequent reporting of government expenditures, and stricter and better enforced conflict of interest regulations.

Author

Donna Lee Van Cott is associate professor of political science at the University of Connecticut. She is writing a book about municipal government innovation by indigenous political parties in the Andes.

Notes

1 International Crisis Group (ICG), Bolivia's Rocky Road to Reforms (Bogota/Brussels: ICG, 3 July 2006),

2 ICG, Bolivia's Reforms: The Danger of New Conflict (Bogota/Brussels: ICG, 8 January 2007).

3 "Morales cambia a siete de sus ministros cuestionados," Los Tiempos, 24 January 2007; "Morales refuerza el perfil izquierdista de su gabinete para su segundo año," Los Tiempos, 24 January 2007.

4 "Standard & Poor's mantiene la perspectiva negativa a largo plazo para Bolivia," La Razon, 22 December 2006, http://www.la-razon.com; ICG, Bolivia's Rocky Road, 8; ICG, Bolivia's Reforms, 12; "Evo afina plan economico y social del 2007," La Razon, 18 December 2006; "Gas Boost for Morales," Latin American Regional Report – Andean Group (November 2006): 15.

5 "Encuesta: el sistema político tiene signos vitales positivos," Los Tiempos, 12 March 2007.

6 "La violencia aqueja al este cruceño; se busca una tregua," La Razon, 18 December 2006

7 ICG, Bolivia's Rocky Road, 2.

8 Only one of the six major parties mentioned in the 2005 report competed in the last elections, and it won less than 7 percent of the vote. See electoral data at http://www.cne.gov.bo; World Bank, "Worldwide Governance Indicators Country Snapshot," World Bank, http://info.worldbank.org/governance/kkz2005/sc_chart.asp, accessed 17 December 2006..

9 ICG, Bolivia's Rocky Road, 16-17; Ramiro Ramirez S., "Recuperar la soberania plena es vital para la Constituyente," Agencia Boliviana de Informacion (ABI), Direccion Nacional de Comunicacion Social, http://abi.bo, accessed 3 January 2007.

10 "Entre aplausos, Asamblea aprueba formula mixta," Los Tiempos, 15 February 2007.

11 Dan Keane, "Bolivia Divided Over Morales' Reforms," Times Picayune (New Orleans), 24 November 2006, http://www.nola.com; "El MAS excluye a Podemos y busca acuerdas con otros," La Razon, 6 December 2006.

12 President Morales distributed approximately 8,500 square miles of publicly owned land in 2006; under the new law the government expects to distribute 77,000 square miles of government land, mainly in the east of the country. Associated Press, "Land Redistribution Plan Passes in Bolivia," CNN.com, 29 November 2006; Fiona Smith, "State Property in Bolivia Turned Over to Indians," Times Picayune, 4 June 2006.

13 Although the referendum failed nationwide (57.6 percent to 42.4 percent), legally it must be implemented for the departments where it passed. Corte Nacional Electoral, Resultados Referendum Nacional (La Paz: Republic of Bolivia, Corte Nacional Electoral, 2006), http://www.cne.org.bo; ICG, Bolivia's Reforms, 9-10.

14 "Bolivia Succumbs to Social Conflict as Morales Loses Control," Latin American Weekly Report, 18 January 2007.

15 CIVICUS, Civil Society in Bolivia: From Mobilization to Impact (Johannesburg: CIVICUS, 2006), 3, http://www.civicus.org/new/media/CSI_bolivia_executive_summary.pdf.

16 Asamblea Permanente de Derechos Humanos de Bolivia (APDHB), Analisis de situacion de los derechos humanos en Bolivia el 2005 (La Paz: APDHB, 15 May 2006), 5.

17 APDHB, Analisis de situacion, 4-5; Defensor del Pueblo (Republica de Bolivia), VIII Informe Anual del Defensor del Pueblo (La Paz: Defensor del Pueblo, 2006), 33; Amnesty International (AI), "Bolivia: Human Rights Concerns," http://www.amnestyusa.org/countries/bolivia, accessed 17 December 2006; Centro de Estudios Judiciales del las Americas (CEJA), Report on Judicial Systems in the Americas 2004-2005 (Santiago, Chile: CEJA, n.d.), 98, http://www.cejamericas.org/report.

18 "Arbour abrira oficina de DDHH en Bolivia," Los Tiempos, 14 February 2007; "Amnistia evalua DDHH en Bolivia y habla de impunidad," Los Tiempos, 5 March 2007.

19 APDHB, Analisis de situacion, 5.

20 "Piden seguridad para los defensores de los derechos humanos en Bolivia," Los Tiempos, 24 January 2007.

21 Mary Anastasia O'Grady, "Bolivian Witch Hunts," Wall Street Journal, 1 September 2006; ICG, Bolivia's Rocky Road, 6-7; Associated Press, "Ex-Bolivian Leader Blames US in Missile Scandal," CNN.com, 18 August 2006.

22 "Victory For Women," Inter Press Service, 25 May 2006.

23 United Nations Committee on the Elimination of Discrimination against Women (CEDAW), Consideration of Reports Submitted by States Parties Under Article 18 of the Convention on the Elimination of All Forms of Discrimination against Women – Bolivia (New York: CEDAW, 27 March 2006), 3, 7, 43; Martin Garat, "Women Gear Up to Break Their Silence," Latinamerica Press 39, no. 23 (13 December 2006); available at http://www.latinamericapress.org.

24 ICG, Bolivia's Rocky Road, 19; ICG, Bolivia's Reforms, 8; based on an examination of first names from the data compiled by the Political Database of the Americas (Washington, DC: Georgetown University, 2005), http://www.georgetown.edu/pdba/elecdata/bolivia/dic05.html; CEDAW, Consideration of Reports – Bolivia, 29; author interviews in Bolivia, August 2005.

25 U.S. Department of State, Trafficking in Persons Report 2006 (Washington, DC: U.S. Deptartment of State, 2006), http://www.state.gov/g/tip/rls/tiprpt/2006/65988.htm.

26 "Sectores dicen que los ataques fueron raciales," La Razon, 19 December 2006; Defensor del Pueblo, VIII Informe, 14-15; APDHB, Analisis de situacion, 9-10; AI, "Bolivia: Human Rights Concerns."

27 APDHB, Analisis de situacion, 10.

28 Defensor del Pueblo, VIII Informe, 59.

29 David Ovando, "Gobierno se acerca a la Iglesia y garantiza materia de religion," Los Tiempos, 19 February 2007.

30 "Indigenas amazonicos son sometidos a la esclavitud," La Razon, 31 October 2005; APDHB, Analisis de situacion, 11; AI, "Bolivia: Human Rights Concerns.".

31 "Los jueces solo estan en 180 de 327 municipios," La Razon, 14 January 2007

32 CEJA, Report on Judicial Systems, 95.

33 . U.S. Agency for International Development, "Democracy Strategic Objective," http://www.usaidbolivia.org.bo/US/1Dem.htm; "En la justicia comunitaria no existe defensa," La Razon, 14 January 2007.

34 Defensor del Pueblo, VIII Informe, 14, 34; "Vecinos esperaban a la fiscal mientras el linchado moria," La Razon, 17 January 2007.

35 "Designaciones interinas en la Corte Suprema son legales y reduciran la retardacion de justicia," ABI, 2 January 2007; ABI, "Presidente de la Suprema propone cumbre democratica para mejorar administracion de Justicia," ABI, 2 January 2007; CEJA, Report on Judicial Systems, 98.

36 ICG, Bolivia's Rocky Road, 5; "La postergacion de la orden de destinos molesta a los militares," La Razon, 23 December 2005; "Los militares revelan fisuras y se meten en la campaña electoral," La Razon, 14 December 2005; "La FFAA deliberan y piden repetar la primera mayoria," La Razon, 13 December 2005; AI, "Bolivia: Human Rights Concerns."

37 "El Fiscal acusa a Goni y a 2 ex ministros por otros 10 delitos," La Razon, 19 December 2006.

38 ICG, Bolivia's Rocky Road, 13, 31; ICG, Bolivia's Reforms, 5.

39 ICG, Bolivia's Reforms, 12; ICG, Bolivia's Rocky Road, i; Simon Romero and Juan Forero, "Bolivia's Energy Takeover: Populism Rules in the Andes," New York Times, 3 May 2006.

40 "Suiza pide a Morales que respete los acuerdos entre ambos paises," Los Tiempos, 10 February 2007.

41 ICG, Bolivia's Reforms, 13.

42 Business Anti-Corruption Portal, "Bolivia Country Profile," Global Advice Network, http://www.business-anti-corruption.com/normal.asp?pageid=164.

43 Transparency International (TI), Global Corruption Report 2006 (Berlin: TI, 2006), 130-32.

44 "La Fiscalia se deshace de los reprobados," La Razon, 16 September 2005.

45 "Bolivian Anti-Corruption Law May Become Retroactive," Daily Granma, 11 February 2007, http://www.granma.cubaweb.cu/english/news/art27.html.

46 TI, Global Corruption Report 2006, 130-32.

47 Ibid.

48 Ibid.

49 "Evidence Scant in High-Profile Bolivia Prosecutions," International Herald Tribune, 5 September 2006.

50 Ibid.

51 "La Fiscalia se deshace de los reprobados," La Razon, 16 September 2005; "El MAS y la oposicion abren discusion sobre polemica ley," La Razon, 18 December 2006.

52 "Avales: Evo pide carcel para cobrador y pagador," Los Tiempos, 12 March 2007; "Hubo trafico de avales del MAS en la gestion Alvarado en YPFB," Los Tiempos, 6 March 2007; "YPFB: reconocen que hay 30 recomendados, pero investigan," Los Tiempos, 14 March 2007.

53 Ibid.

54 "Morales radicalises YPFB," Latin American Weekly Report, 1 February 2007, 4.

55 ""Bid to Speed Up 'Nationalization' Backfires in Bolivia," Latin American Weekly Report, 19 September 2006.

56 "Latin-America: The Use, and Abuse, of Developmental Aid," Inter Press Service, 12 October 2006.

57 Ibid.

58 International Budget Project, Open Budget Index 2006 (Washington, DC: Center on Budget and Policy Priorities, 18 October 2006), http://www.openbudgetindex.org/CountrySummaryBolivia.pdf.