Last Updated: Monday, 22 September 2014, 14:17 GMT

Countries at the Crossroads 2005 - Bolivia

Publisher Freedom House
Author Donna Lee Van Cott
Publication Date 5 May 2005
Cite as Freedom House, Countries at the Crossroads 2005 - Bolivia, 5 May 2005, available at: http://www.refworld.org/docid/473869065a.html [accessed 22 September 2014]
DisclaimerThis is not a UNHCR publication. UNHCR is not responsible for, nor does it necessarily endorse, its content. Any views expressed are solely those of the author or publisher and do not necessarily reflect those of UNHCR, the United Nations or its Member States.

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

Introduction

Author

Donna Lee Van Cott is assistant professor of political science and Latin American studies at Tulane University. She recently completed a book on indigenous political parties in South America.

Between January 2003 and November 2004 Bolivia underwent more tumultuous changes than any other country in Latin America apart from Haiti. On October 17, 2003, President Gonzalo Sanchez de Lozada fled the country following five days of violent conflict between government security forces and a broad array of civil society groups in the capital and its outskirts. The violence – stemming from opposition to the president's decision to export the country's natural gas through a port in Chile – left an estimated 59 to 82 persons dead and hundreds injured.1 Sanchez de Lozada's use of excessive military force against mostly unarmed indigenous protesters cost him the support of the mestizo (mixed-race) middle class, coalition partners, his vice president, and, ultimately, the U.S. embassy.

The uprising followed a violent revolt against an IMF-mandated income tax increase in February 2003, widespread popular mobilizations against government economic policies in 2001 and 2000, and a longstanding struggle between coca growers and drug eradication forces. Sanchez de Lozada and his predecessors had responded to these acts of resistance with increasingly brutal force, blaming them on isolated groups of troublemakers. Meanwhile, the country's democratic institutions were showing increasing signs of strain.

Constitutional order was preserved when Vice President Carlos Mesa, a well-regarded journalist and historian, assumed the presidency and promised to address swiftly the principal demand of the opposition: constitutional changes that would allow a popular referendum on the unpopular gas plan and the convocation of a constituent assembly. Although the main leaders of the radical opposition promised to renew violent protests if their demands were not met within 90 days, Mesa defied expectations and fulfilled his most important commitments. On February 20, 2004, he promulgated a law to reform the constitution, which the congress approved with uncharacteristic speed. Among the reforms was the legalization of binding or consultative referenda and legislative initiatives, a constituent assembly, and a measure allowing "citizens' groupings" and indigenous peoples to stand for election. The referendum on the gas issue took place on July 18, and the constituent assembly is scheduled for 2005. Moreover, Mesa made these bold moves while maintaining high popularity ratings: His approval rating was above 80 percent at the beginning of 2004; it dropped to above 60 percent the following August after 10 months of battles with the traditional political party elite and militant social movement leaders.2

The fragile government still faces a number of hurdles. Municipal elections in which civil society groups and indigenous peoples will compete for the first time are scheduled for December 2004; new hydrocarbon and petroleum laws must be negotiated with a fractured congress;3 and the National Constituent Assembly must address the demands of the excluded indigenous majority and heal a widening rift between the four departments of the western highlands, where political power traditionally has resided, and the five departments of the lowland crescent, where an increasingly confident new economic elite seeks greater autonomy. Support for this and future democratic governments will depend upon their ability to address the high levels of inequality and poverty that affect 70 percent of the population in the context of an economic climate that has worsened in recent years: As Mesa took office unemployment stood at 12 percent, the fiscal deficit reached 8 percent of gross domestic product (GDP), and economic growth had slowed to between 2 percent and 3 percent, down from 4 percent in the 1990s. The external debt stood at US$4.5153 billion in May 2004, equivalent to 55 percent of GDP.4

Accountability and Public Voice – 3.54

Bolivia has held regular, free, and fair elections since 1979. There are six major political parties, but no party has ever won a majority of votes. For years this led to a system in which, in the absence of an absolute majority, coalitions of parties in congress effectively chose the president. Although coalition-formation has facilitated governance at the beginning of each presidential term, the coalitions, built on patronage, are fragile and prone to erosion, leaving presidents with slim bases of support. After 18 years of relative stability, Bolivia's democratic institutions showed increasing signs of strain.

This system was challenged in October 2003, when President Sanchez de Lozada was forced to flee the country amid violent conflict over new national energy policies. Vice President Carlos Mesa assumed the presidency as provided for in the constitution.

Before the 2004 constitutional reform, only political parties were allowed to participate in elections, under rules that often set high barriers to new vehicles sponsored by popular sectors. Since 1979, parties failing to meet a 3 percent vote threshold have been subject to fines and the loss of their registration, a problem that plagued numerous indigenous parties. In addition, a politically manipulated National Electoral Court has disqualified aspiring parties owing to small and often falsified infractions. For example, the indigenous party Instrumento Politico para la Soberania de los Pueblos (IPSP) competes under the label Movement toward Socialism (MAS) because its registration repeatedly has been denied under its own name. In 2002 MAS leaders complained bitterly that the registration of rival party Indigenous Pachakutik Movement (MIP) was accepted notwithstanding numerous irregularities; they blamed the major parties, which stood to benefit from splitting the indigenous vote.

On February 20, 2004, President Mesa promulgated a law to reform the constitution that included the legalization of binding or consultative referenda and legislative initiatives and the creation of a national constituent assembly. As of September 2004 a law regulating the assembly's convocation was expected by the end of November, and elections were planned for December.

The national constituent assembly will provide unprecedented access to real decision-making power for heretofore underrepresented groups through new provisions allowing citizens' groups and indigenous peoples to put forward candidates for elected office. These groups will receive state resources for campaigning in subsequent elections in proportion to the votes they win, just like political parties, and will be allowed to form alliances with political parties. Indigenous peoples will not need to collect signatures in order to register candidates, while citizens' groups will need 2 percent of the municipal electoral registration list. As of September 2004, some 800 citizens' and indigenous groups had registered their intention to participate in the December 2004 municipal elections. However, the majority was not likely to be able to collect sufficient signatures and have them verified before the October 6 deadline, due to the lack of resources available to the electoral court.5

President Mesa has sponsored efforts to increase civic engagement in policymaking. For example, the July 18 gas referendum, which posed five questions, was preceded by a campaign to promote citizen awareness and involvement through more than 550 informational events throughout the country, although it is unclear whether this dialogue led to substantive policy changes. Trade union leaders criticized the referendum for not including an option authorizing nationalization of the hydrocarbon sector, and business leaders objected to the possibility of altering existing contracts. More objective observers noted that the questions were phrased to the president's best advantage. They ask voters to approve of Mesa's abrogation of his predecessor's Hydrocarbon Law and of the general thrust of Mesa's policy: to recuperate Bolivian state ownership of hydrocarbons and enhance the role of the state oil company, which had been privatized; to "use gas as a strategic resource for the achievement of a useful and sovereign outlet to the Pacific ocean"; and to use the proceeds of hydrocarbon exportation to fuel the domestic market and invest in education, healthcare, roads, and employment. Most Bolivians agree with these general principles. But the wording skirts the volatile question of nationalization of hydrocarbon production, which opponents had specifically wanted to include. Ultimately, all of the questions received support – that is, a vote of "yes" – exceeding 55 percent of votes cast, and on three of questions more than 80 percent of voters voted "yes."6 Approximately 60 percent of eligible voters participated in the referendum.

Nongovernmental organizations (NGOs) with international funding often are able to influence policy because the government relies on international agencies for funding and technical support on many social policy issues. It is not uncommon to find the offices of international development organizations, such as Harvard's Institute for International Development, inside government ministries.

Congressional approval is required for major legislative changes, but this is typically difficult to achieve given the fragmentation of the party system. Presidents have either formed and maintained governing coalitions through patronage appointments or allowed major issues to stagnate while addressing minor issues through supreme decree. For example, the appointment of high judicial officers has been delayed for a decade, while the president has implemented indigenous peoples' rights under International Labour Organization Convention 169 by supreme decree. Thus, legislative oversight is lacking.

In August 2004, the Bolivian media exposed the high degree of political hiring and nepotism in the congress, where more than 1,000 political appointments are distributed among the political parties. In response to public outcry, congressional leaders promised to crack down on nepotism.

The government discriminated against dissenting news media when allocating state advertising funds and applied pressure for the dismissal of critical reporters. Reporters without Borders cited telephone threats, confiscation of newspapers from newsstands, and destruction of transmitters, primarily carried out by the military intelligence services.7 For example, on October 15, 2003, two hooded men blew up the transmitter serving a Catholic radio station and a university-based television station that had criticized the government for using excessive force against demonstrators. More seriously, Reporters without Borders reported numerous abuses of journalists by Bolivian authorities during 2003, including 17 physical attacks, mainly in connection with coverage of civil unrest. Several anti-government media outlets were accused of treason during the uprising against President Sanchez de Lozada, but no prosecution resulted. In October 2003 several journalists at the state-owned television station resigned in protest over pressure not to show images of government violence.8 Although reported abuses and harassment of journalists have declined since October 2003, in September 2004 a La Razon reporter was briefly denied entrance to Congress following an expose by his newspaper on legislative nepotism and corruption.9 Journalists are wary of a current proposal to establish a regulatory agency to monitor the press, and they often practice self-censorship. However, despite the harassment, journalists continue to publish analyses critical of the government, and diverse media outlets do function. Given the small size of the population and the low level of literacy, the number of distinct news sources available at newsstands in major cities is impressive.

Recommendations

  • The 2005 constituent assembly should address pending issues with broad public support: the direct election of departmental governors, the elimination of immunities protecting government officials from criminal prosecution, and the creation of political institutions that incorporate indigenous authorities and values.
  • The president and his anticorruption prosecutor, themselves professional journalists, should improve relations between the state and Bolivia's independent media, including by consulting journalists when drafting legislation affecting access to public information.
  • The ability of political parties to influence the National Electoral Court must end. The National Electoral Court should be accountable only to unaffiliated professionals and independent governmental investigative agencies.
  • Fines on political parties failing to meet vote thresholds should be eliminated.
  • Rules for choosing representatives for the constituent assembly must facilitate adequate representation of politically underrepresented regions and demographic groups.

Civil Liberties – 4.12

Bolivia has ratified the major UN human rights conventions. The constitution, revised in 1995, 2002, and 2004, protects a wide range of civil and political rights, including liberty in religious teaching, the free expression of ideas and opinions, and association with others for legal purposes.

Nevertheless, violence against civilians is a problem. According to the nongovernmental Bolivian Permanent Assembly for Human Rights (APDHB), state-sponsored human rights violations led to the deaths of at least 120 Bolivians between September 2002 and October 13, 2003.10 Amnesty International and Human Rights Watch expressed concern with respect to the excessive force used by the army and police in October 2003, noting that the majority of those killed were protesters who were shot when armed mainly with sticks and stones. Violent confrontations between police and protesters were common before this as well.11 According to the APDHB, since 1985 social conflicts pitting the government against civilians have led to the deaths of 350 people and injuries to 7,000 more, while at least 12,000 have been unjustly detained. In none of these cases has a member of the police or the military been prosecuted.12

Reports of human rights violations declined markedly after the change in government. Mesa exercised more restraint toward protesters and relaxed the coca eradication policy, which had been linked to confrontations between police and civilians. However, human rights advocates complain that investigations of government abuses are handled internally and do not result in appropriate disciplinary action. In December 2003 Human Rights Watch complained that a "lack of cooperation by the Bolivian Armed Forces put at risk the investigation of the events of September and October" and that "military tribunals lack independence and impartiality."13 Human rights workers complain of harassment and even attack by government officials and assert that the judicial system is too weak, inefficient, underfunded, and subject to political pressure to pursue cases properly. For example, the prosecutor general's office never received Senate-approved funds to investigate the February 2003 incidents. Arbitrary arrests and detentions continue, particularly among coca growers and trade union leaders, notwithstanding improvements in the code of criminal procedure. Prisons are severely overcrowded and underfunded, rendering them unable to meet inmates' basic health requirements. Bolivia ratified the UN Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment in 1999, yet beatings and torture by inmates and prison officials are common.14

In 1995, the congress passed Law 1674 Against Intrafamily Domestic Violence, and regulations for its implementation were established by supreme decree in 1998. Among its most important provisions is the requirement that government officials and nongovernmental professionals providing services to victims report abuse to the police, family protection brigades (special units in the police created in all provincial capitals), the prosecutor general's office, or integrated legal services offices in municipal governments, which handle concerns regarding women and the family in more than 64 offices throughout the country. Procedures for filing complaints also have been made simpler. The first defendant prosecuted under the law, using a new oral justice forum for domestic violence, was sentenced to eight years in jail in 2002.15

Efforts to secure women's rights are hampered by the fact that many Bolivian women are not aware that they have rights, and significant social discrimination means that widespread education about legal equality is lacking. Although the minimum wage law protects men and women equally, most urban women are employed in the informal sector, which is not protected. The labor code restricts the proportion of female personnel at a business to 45 percent except where a particular enterprise requires more, and national labor law limits a woman's workday to one hour less than a man's and prohibits her from working at night. However, such discriminatory labor laws are rarely enforced. Employers are required by law to contribute to social insurance for family leave benefits for families with young children, and as the payments are higher for female workers, some say this leads to discrimination in hiring.16

Policy issues affecting women have been treated since 1993 in a special government office, the title and location of which tends to change with administrations. These offices typically are located at a low level within government ministries. Women's access to public office has improved somewhat since the mid-1990s. The first female cabinet member was appointed in 1997, but the 2000 cabinet had no female members, and Sanchez de Lozada appointed only one in 2002. Since 1997, political parties have been required to reserve 30 percent of their congressional lists for female candidates for the one-half of congressional seats elected from party lists. The quota law and increasing demands by female members of the major parties led to an unprecedented number of female candidates in the 2002 national elections. Of these, 30 were elected to the congress (out of 157 seats), up from 16 in 1997.17

A law against trafficking in boys, girls, and adolescents became law in November 2003. Nevertheless, the U.S. State Department classifies Bolivia as "a source country" for adults and children "trafficked for labor and sexual exploitation" to other Latin American countries, the United States, and Europe. Bolivians are particularly susceptible because of their greater poverty compared to neighboring countries and the large number of Bolivians who emigrate illegally in search of employment. Despite government efforts, resources are insufficient to enforce existing norms.18

Indigenous peoples – including a 30,000-member Afro-Bolivian population that the government treats as indigenous – comprise approximately 60 percent of the population. The majority are either Aymara (1,549,320) or Quechua (2,298,980) and live in the western highland departments. Approximately 286,000 lowland Indians inhabit the eastern departments. Bolivia codified a limited array of rights for indigenous peoples in the 1994-1995 constitutional reform, including recognition of the juridical personality 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. The UN Committee on the Elimination of Racial Discrimination received reports in 2003 that the police had threatened and harassed human rights workers assisting indigenous peoples and that the right to equal treatment and nondiscrimination was being denied to Afro-Bolivians. However, the Mesa government issued a supreme decree implementing International Labor Organization (ILO) Convention 169 with respect to indigenous communities' territory and the use of natural resources, which rural elites had obstructed for years. ILO Convention 169 requires that indigenous peoples be consulted prior to government or private exploitation of natural resources located within their territories. Implementation of indigenous peoples' constitutional right to bilingual education also has progressed. For example, the Mesa government provided training in classroom teaching, produced educational materials in indigenous languages for more than 5,000 teachers, and produced and distributed primary school educational materials in Spanish, Aymara, Quechua, and Guarani.19

Indigenous participation in government increased dramatically after the implementation of the 1994 Law of Popular Participation. Those identifying themselves as indigenous won 28.6 percent of seats available in the first nationwide municipal elections, in 1995. Representation at the national level was scant until the formation of two new indigenous political parties in 1995 (the Assembly for the Sovereignty of the Peoples, or ASP) and 2001 (the Indigenous Pachakutik Movement, or MIP). The ASP elected four Indians to Congress in 1997. In 2002, an offshoot of the ASP (Political Instrument for the Sovereignty of the Peoples [IPSP]), registered as MAS, won 35 seats and the MIP won six, requiring the congress to hire translators for the first time. An additional 8 to 17 indigenous representatives entered congress with the traditional parties depending on the source consulted (there is no consensus on how to define "indigenous" identity). President Mesa appointed two indigenous cabinet members.

Bolivians with disabilities are protected under the 1995 Persons with Disabilities Act. However, enforcement agencies are not active in many parts of the country, and no penalties exist for noncompliance with nondiscrimination and accommodation laws. The definition of disability used by national surveys is very limited, thus causing undercounts that allow the government to withhold additional resources. The Ministry of Education estimates that between 74 percent and 97 percent of disabled children are excluded from public schools. The unemployment rate for people with disabilities is estimated at 60 percent to 85 percent, compared with approximately 12 percent in the general population. The Rehabilitation Bureau of the Ministry of Health, which provided health care to people with disabilities, was closed in 1994, leaving many disabled Bolivians without access to medical treatment. Government forms, including ballots, are not printed in Braille, nor are Braille texts available in national libraries. Barely any public buildings are considered fully accessible. Post offices, public transportation, and other government services are not wheelchair accessible and do not provide assistance for people with disabilities.20

The Bolivian constitution recognizes Roman Catholicism as the official national religion but guarantees religious freedom to all other groups. The Catholic Church receives some monetary support from the state, and the Bolivian Bishops' Conference has some influence over Bolivian political life. The bishops were vocal in calling for government intervention to prevent bloodshed during the riots under the previous government. 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 constitution and the General Labor Law provide for the right of all Bolivians to form trade unions for lawful purposes, and both employers and employees are guaranteed the right to freedom of association. In practice, however, a large segment of the population, especially in rural areas, works in the informal economy and is thus unprotected. Freedom of association and political assembly are generally respected, although the military and police used violence against demonstrators under previous governments. NGOs are allowed to operate freely so long as they register with the government, and such registrations are granted freely and without bias.

Recommendations

  • The responsibilities of the military and police in controlling civil unrest must be clarified and regulated to prevent violence such as that which marked 2003. Civil society organizations must be involved in the process of setting and enforcing limits on security forces in order to establish public trust.
  • Full implementation of existing indigenous constitutional rights should be a priority, particularly with respect to recognition of land and resource rights.

Rule of Law – 3.52

Bolivia's justice system is characterized by underpaid, poorly trained judges and administrative officials who are overly susceptible to financial and political pressure; inefficiency that generates long delays and the violation of defendants' rights; and user fees, transportation costs, and often the necessity for bribes to ensure prompt attention and favorable outcomes, which place civil proceedings beyond the reach of the majority of Bolivians. As a result, Bolivians seek justice through appeals to the executive branch, particularly local politicians, and through informal dispute-resolution mechanisms.21

A major restructuring and de-politicization of the judicial system has been under way since the 1994-1995 constitutional reform. That reform created a judiciary council to professionalize and regulate judges, a constitutional tribunal to handle constitutional questions, and a people's defender to protect citizens from abuses by public officials. A host of reforms to the criminal, civil, and administrative codes followed. Final approval and implementation of those reforms continued during the second Sanchez de Lozada administration. However, their realization was continually delayed by the lack of professionalism and training among the country's judiciary and the resistance of political party leaders, who want to maintain control over judicial appointments for patronage purposes and to be able to manipulate the outcome of sensitive cases. During the aftermath of the 2003 energy riots, prosecutors faced political pressure not to investigate charges of abuse against members of the military and police, and the government made it known that if judges ruled against them in criminal cases, such cases might be transferred to more friendly military tribunals.22

Among the most important judicial reforms was the creation of a new code of criminal procedure, which went into effect on May 31, 2001. It shifted Bolivia from a written, inquisitorial, and mostly secret model to one that is adversarial, is more transparent, and allows for oral proceedings – an important change in a country with high illiteracy. The new code requires that translators or interpreters be made available to non-Spanish speakers and that defense attorneys be provided to the indigent without charge. However, public defenders are poorly trained, underpaid, and stretched too thin, leaving legal assistants, who lack the legal standing to protect defendants and intervene in official proceedings, to substitute for them. Police routinely deny them access to vital information about their investigations. Still, the code makes legal proceedings more efficient: In its first year the duration of criminal proceedings was reduced by at least 75 percent.23

Beginning in December 2003, USAID's judicial reform program provided technical assistance, training, physical infrastructure, and information technology to support implementation of the new criminal code. It also set up a criminal records registry, a case liquidation/dismissal system, and a system to randomly select registered voters to participate in oral trials as citizen judges. However, despite a massive public education campaign and training for justice officials, implementation of the code is hampered by the lack of knowledge of its provisions among the public and officials charged with its implementation.

The code does implement indigenous peoples' constitutional right to exercise customary forms of dispute resolution and community justice. Indigenous justice enjoys higher legitimacy and levels of satisfaction within indigenous communities than the formal justice system, which is typically more expensive, geographically remote, and culturally insensitive.24 Conversely, lack of political will in the congress and the executive has delayed the Community Justice Law – which would facilitate and institutionalize the coordination of indigenous and state justice systems – for years, and in mid-2003 the justice ministry specifically prohibited activity on the law. President Mesa addressed problems of coordination between the systems through a supreme decree regulating the Law of Arbitration and Conciliation.25

A new Law of Execution of Penalties and Supervision regulating the prison system entered into force in 2002, and reforms of the customs code and the Law of Responsibilities, which holds government officials accountable, also were initiated. Work on the Law of Responsibilities was suspended in July 2002 because of what a USAID report called "political obstacles to serious reform."26 It was taken up again a year later with respect only to the judicial branch and passed into law on December 22, 2003.27

Justice became much more accessible to the poor majority with the creation of neighborhood Integrated Justice Centers, which provide free legal services to the indigent. The centers offer community and indigenous judges, who seek to resolve civil, family, and criminal conflicts peacefully. Six pilot centers opened in El Alto in September 2004; the government plans to replicate them throughout the country.28

On July 31, 2004, President Mesa appointed 13 men and 4 women to the Supreme Court and Judicial Council, as well as 9 departmental prosecutors, filling long-standing vacancies that followed 10 years of congressional inaction. The interim appointments allow the Supreme Court to achieve a quorum so that it can undertake a backlog of work. In a break from the standard practice of political appointments, the independent consulting firm Price Waterhouse chose Mesa's designees. Under the constitution, the congress was supposed to make the original nominations; Mesa's move was intended to provoke them into action. Congressional leaders responded with outrage, and leaders of the Movimiento Nacional Revolucionario (MNR) and Movimiento de la Izquierda Revolucionaria (MIR) delegations prepared their own list of nominees.29 In a separate development, a new system to evaluate and dismiss incompetent judges was introduced in September 2004.30

Full civilian control of the military is lacking. The military high command challenged the supremacy of civilian leaders and the constitution when it rejected a May 2004 Constitutional Court ruling. That ruling overturned a February 16 military court verdict that acquitted four officers accused of the murder of two civilians during the February 2003 tax revolt. At the time, Bolivia's prosecutor general was pursuing 16 additional lawsuits against the army and police for related incidents, as well as the alleged use of excessive force during the October 2003 uprising. The military has refused to let officers testify and has impeded the prosecutor's access to evidence collected by the military tribunal. After a week of tense private discussions with the president, the military prevailed: On May 13 the Senate approved a law banning appeals of military court rulings and expanding the jurisdiction of these courts.31 In August 2004 President Mesa promised to propose a law to the congress to regulate the intervention of the military in the control of civil disturbances like those of February and October 2003. In the meantime, a supreme decree regulates such situations.32

Legal protection of private property in Bolivia is enshrined in the constitution but is quite weak in practice, as the government has few resources to protect it. Because of extensive corruption in the judicial system, it is difficult for Bolivians to seek restitution for theft of physical or intellectual property. The October 2003 energy policy centered on the distribution of property rights over the country's extensive energy reserves. The new policies had a disproportionate negative impact on indigenous Bolivians, who in many places had previously asserted group property rights over resource-rich land. Many of the oil rights granted to foreign interests by the Sanchez de Lozada government were on lands traditionally held by indigenous groups, and those groups are asking President Mesa to help them reclaim their land.33

Recommendations

  • The government should make the Community Justice Law a priority in order to fulfill commitments in the 1994 constitution and to reduce the demands on the formal justice system.
  • Accessibility of justice in underserved geographic areas and social groups must be improved.
  • Efforts should continue to professionalize judicial and investigative offices.
  • Military leaders must be made accountable to civilian institutions by ensuring that civilian courts have ultimate jurisdiction over the armed services and civilian officials have ultimate authority over military personnel.

Anticorruption and Transparency – 3.12

Bolivia received a score of 2.2 out of a possible 10 (no corruption) in Transparency International's 2004 global corruption index, placing it at 122 out of 146 countries.34 Moreover, Bolivians "ranked fighting corruption as the country's first priority" in an August 2004 survey.35

After assuming office in 2002, Sanchez de Lozada created an anticorruption office in the vice presidency and appointed journalist Lupe Cajias as presidential anticorruption delegate (DPA) to head the office. In its first year the office handled several high-profile cases involving senior government officials. Between October 19, 2003, and August 6, 2004, according to Cajias, the DPA received 497 complaints and handled 29 important criminal proceedings, "nine of which have already been settled."36 In general, the office is developing standard operating procedures that will reduce the autonomy of individual government officials and, thus, reduce opportunities for corruption. As of September 2004, in consultation with civil society groups and with funding and technical support from USAID and the Inter-American Development Bank, Cajias was drafting a new law regulating public purchases, hiring, and the awarding of government contracts, a law holding political parties accountable for the corruption of their members, a law protecting people who denounce public corruption, and a law creating a special national prosecutor to fight corruption. In 2004 the DPA created specialized anticorruption teams throughout the country.37

However, critics point out that the DPA has undertaken no investigations or denunciations of the government since Mesa took office and has shifted its focus to municipal corruption. Most of the investigations are awaiting prosecution in the backlogged courts or in the congress. Cajias herself complained that many positions in the Public Ministry are vacant and the majority are filled by interim appointments due to lack of congressional action.38 In the most high-profile case prosecuted in 2004, President Mesa pardoned Sanchez de Lozada's minister of government after his conviction for misuse of funds. Ironically, exactly one year earlier Sanchez de Lozada had intervened to protect his defense minister from a DPA investigation, angering then-Vice President Mesa. There is a public perception that the anticorruption office and its "czarina" have lost influence and autonomy.39

A 2004 report assessing Bolivia's implementation of the Inter-American Convention against Corruption, ratified in 1997, applauded the country's efforts in enacting pertinent standards and promoting citizen participation in monitoring corruption. However, it criticized the absence of a firm timeframe for public agencies to adopt ethics standards as well as the lack of provisions against conflicts of interest and provisions ensuring public officials' registration of their and family members' income and assets. The report also decried the lack of protections for witnesses and whistleblowers participating in anticorruption cases and the persistence of laws punishing those who insult public officials, which discourage citizens from coming forward.40

Bolivia has been trying to modernize and professionalize the civil service since 1990, when the Government Administration and Control Law was enacted. In addition to an entrenched culture of government corruption, a main obstacle is the lack of resources for undertaking investigations, training personnel, and offering salaries that support professional careers. In August 2004, the Public Ministry, which has primary responsibility for investigating crime and regulating, investigating, and prosecuting corruption, had a deficit of more than US$37 million. The ministry lacks investigators knowledgeable about criminal procedures and has no legal norms for hiring them. That month Prosecutor General Oscar Crespo was replaced after nearly 20 years of overseeing the ministry, opening up the possibility for genuine change. The newly appointed prosecutor general immediately declared vacant 740 jobs in the Public Ministry and fired 30 investigators. Aspirants for these jobs will have to take competency exams.41

An unprecedented terrorist attack occurred on February 27, 2004, when a car bomb killed anti-drug prosecutor Monica von Borries. Authorities suspect that fugitive Marco Marino Diodato, whom von Borries had investigated for corruption and drug trafficking, was behind the murder. They arrested a Brazilian citizen, who allegedly confessed his participation on Diodato's orders. Others blame landowners whom von Borries was investigating.42

In September 2004 a corruption scandal involving the top leaders of the national police, which received extensive media coverage, led to the replacement of the commander in charge.43

The anticorruption office is working with the Carter Center on new access to information and transparency laws and the implementation of a transparency policy with respect to public information. After work was delayed on both laws, Mesa issued a supreme decree on January 31, 2004, covering both access to information and transparency. The decree has created controversy because of broad exemptions for some government officials and agencies, restrictions on the type of information available to citizens, and a lack of clear guidelines on implementation, which leaves too much to the discretion of public officials.44 In addition, public officials are reluctant to share information, government offices are disorganized, and it is unclear who will pay the costs of providing information. Despite a 2004 constitutional amendment protecting the privacy of individuals with respect to their personal information held by the government, it is unclear how privacy rights will be harmonized with the right to information. Government Web pages have been created providing a variety of important legal and policy information to citizens, including information on government expenditures and contracts. On August 6, 2004, President Mesa posted on his Web site a detailed report of government activities and expenditures since he took office.45 However, fewer than 300,000 Bolivians have access to the Internet.46

The Bolivian government, in cooperation with the WTO, has set up a financial transparency portal to make current and past budgets and other financial information public. According to WTO reports, the portal contains relevant budget information but is not user-friendly and should be directly linked to the government financial system.47

Recommendations

  • In order to encourage citizens to come forward, laws punishing slander or insult of public officials should be abolished and norms should be created to protect whistleblowers and witnesses involved in cases of public corruption.
  • The government should actively continue to involve civil society groups in the design and implementation of its anticorruption and access-to-information strategies.
  • 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 policymaking above the municipal level.
  • More mechanisms are needed to enable civil society groups to monitor government performance at all levels. For example, the successful vigilance committee model could be expanded from municipal governments to other areas and levels of government oversight.

Notes

1 The People's Defender gives the lower figure; the Bolivian Permanent Assembly for Human Rights gives the higher estimate. Three soldiers also were killed. Both sources quoted in "Counting the human cost of protests," Latin American Weekly Report, 11 November 2003, 8.

2 Jose Antonio Aruquipa, "Terrorism intensifies: Anti-drug prosecutor dies in attack," Latinamerica Press 36, 5 (10 March 2004): 3; "La aprobacion de Mesa cae ocho puntos; la gente pide otra agenda," La Razon, 30 August 2004, http://www.la-razon.com/el_evento/agosto/eve040830a.html.

3 Bolivia has an estimated 900 million barrels of oil and 54 trillion cubic feet of natural gas. Raul Vasquez, "Bolivia: Social Movements in Trouble?" NACLA Report on the Americas 38, 1 (July/August 2004): 43.

4 "Optimism from central bank," Latin American Economy and Business (June 2004): 17; "Primary economy outperforms services," Latin American Andean Group Report (6 January 2004): 10; World Factbook 2004, Bolivia (Springfield, Va.: U.S. Central Intelligence Agency, 2004); Carlos D. Mesa Gisbert, Mensaje-Informe de Gestion, 17 October 2003-6 August 2004.

5 "Los grupos recibiran subsidios y pueden aliarse a los partidos," La Razon, 18 August 2004, http://www.la-razon.com/politica/Agosto/pol040818a.html; "Ajustes legales para las municipales," La Razon, 11 August 2004, http://ea.gmcsa.net/2004/08-Agosto/20040810/Editorial/notas/Editorial.html; "La participacion de agrupaciones en las municipales sera escasa," La Razon, 9 September 2004, http://www.la-razon.com/politica/septiembre/pol040909a.html.

6 Mesa, Mensaje-Informe; "Mesa unveils tailor-made referendum," Latin American Andean Group Report (8 June 2004): 10; "La mayoria aprueba al Gobierno y cree que las petroleras ayudaran," La Razon, 13 August 2004.

7 Bolivia – Annual Report 2004 (Paris: Reporters without Borders, 2004), http://www.rsf.org/article.php3?id_article=10233&%20Valider=OK.

8 "Bolivia, Attacks on the Press 2003" (New York: Committee to Protect Journalists, 2004), http://www.cpj.org/attacks03/americas03/bolivia.html.

9 Ibid.; "2003 World Press Freedom Review," (Vienna: International Press Institute, 2004), http://www.freemedia.at/wpfr/Americas/bolivia.htm; "Cossio y Vaca Diez comprometen acciones en contra del nepotismo," La Razon, 2 September 2004.

10 "A la comunidad internacional y al pueblo Boliviano" (La Paz: Bolivian Permanent Assembly for Human Rights [APDHB], press release, 15 October 2003), http://web.entelnet.bo/apdhdb/docs/doc33.htm; in comparison, during the 2000 "Water War" and contemporaneous protests 20+ people were killed and hundreds injured; confrontations in 2001 left an estimated 17 dead, in Willem Assies, "David Fights Goliath in Cochabamba: Water rights, neoliberalism and the renovation of social protest in Bolivia," Latin American Perspectives (2003): 14-36; "Bolivia: Chapare – Human rights cannot be eradicated along with the coca leaf" (New York: Amnesty International, 25 October 2001), http://web.amnesty.org/library/print/engamr180102001.

11 Informe de la Organizacion de los Estados Americanos (OEA) sobre los hechos de febrero del 2003 en Bolivia (Washington, DC: Secretaria General de la OEA, Mayo del 2003); 2004 Annual Report, "Bolivia" (New York: Amnesty International, 2004), http://www.amnestyusa.org/countries/bolivia; "Se debe ejercer mesura al responder a las protestas" (New York: Human Rights Watch, 15 October 2003), http://hrw.org/spanish/press/2003/bolivia_manifestaciones.html; "Bolivia" (New York: Amnesty International, 2003).

12 "Legal consequences: Human rights organizations sort out the consequences of October protest and press for prosecutions," Latinamerica Press 2 (28 January 2004): 11.

13 Author's translation, "Fortalecer la investigacion por muertes de manifestantes" (New York: Human Rights Watch, 22 diciembre 2003), http://hrw/org/spanish/press/2003/bolivia_fortalecer_investigacion.html.

14 Latin American Weekly Report, 25 November 2003, 12; "Bolivia," 2003 and "Bolivia," 2004 (New York: Amnesty International, 2003 and 2004).

15 Jarmila Moravek de Cerruto, "Domestic Violence, Legislation and Health in Bolivia," paper presented at symposium "Gender Violence, Health and Rights in the Americas," Cancun, Mexico, 4-7 June 2001, 2; "Ocho anos de Carcel por pegar a su mujer," Actualidad, 23 May 2002, http://www.bolivia.com/noticias/autonoticias/detallenoticia6307.asp.

16 "Social Security Throughout the World: The Americas 2003" (Washington, DC: U.S. Social Security Administration, March 2004), http://www.ssa.gov/policy/docs/progdesc/ssptw/2002-2003/americas/bolivia.html.

17 "Algunas caracteristicas del proximo Parlamento," La Razon, 7 July 2002; interviews by author in Bolivia, April-July 1997, June 2002; Mala N. Htun, Advancing Women's Rights in the Americas: Achievements and Challenges (Washington, DC: Inter-American Dialogue, 2001).

18 Trafficking in Persons Report (Washington, DC: U.S. Dept. of State, 14 June 2004), http://www.state.gov/g/tip/rls/tiprpt/2004/33198pf.htm.

19 Mesa, Mensaje-Informe.

20 "2004 International Disability Rights Monitor," Bolivia (Chicago: Center for International Rehabilitation, 2004), http://www.cirnetwork.org/idrm/reports/americas/countries/bolivia.html.

21 Advancing Judicial Reform: An Environmental Case Study in Bolivia (New York: Human Rights First [formerly Lawyers Committee for Human Rights], n.d.), http://www.uoregon.edu/~caguirre/bolivia/html; interviews by author, La Paz, March-June 1997, December 1998.

22 "Bolivia: Strengthen Investigation into Protest Deaths" (New York: Human Rights Watch, 22 December 2003), http://hrw.org/english/docs/2003/12/22/bolivi6847.htm.

23 "Bolivia," Report on Judicial Systems in the Americas 2002-2003 (Santiago, Chile: Centro de Estudios Judiciales de las Americas, n.d.), 88, http://www.cejamericas.org/report; Daniel Mogrovejo, Informe sobre la Implementacion de la Reforma Procesal Penal en Bolivia (Ciudad de La Paz) (Santiago: Centro de Estudios de Justicia de las Americas, n.d.).

24 "Bolivia: Judicial reforms underway," Report of the Justice Study Center of the Americas (2003) (Santiago: Centro de Estudios de Justicia de las Americas, 2003), http://www.cejamericas.org/reporte.html.

25 USAID-Bolivia Administration of Justice Program (BAOJ)-phase III, Final Report, August 2001-December 2003 (Washington, DC: U.S. Dept. of State, Agency for International Development, n.d.), 7; Mesa, Mensaje-Informe.

26 USAID-Bolivia Administration of Justice Program, 6.

27 Nardy Suxo, "La necesidad de un derecho a la informacion en Bolivia," in La Promocion de la democracia a traves del acceso a la informacion: Bolivia (Atlanta: Carter Center, 2004), 11-12; USAID-Bolivia Administration of Justice Program, 1-2.

28 "La justicia sale de los palacios a los barrios populares," La Razon, 17 September 2004, http://ea.gmcsa.net/2004/09-septiembre/20040915/seguridad/septiembre/seg040915a.html.

29 "El Presidente da el primer paso para renovar la justicia en el pais," La Razon, 1 August 2004, http://ea.gmcsa.net/2004/08-Agosto/20040801/El_Evento/Agosto/eve040801a.html; "La designacion de Mesa no es legal, segun Crespo," La Razon, 1 August 2004, http://ea.gmcsa.net/2004/08-Agosto/20040801/El_Evento/Agosto/eve040801c.html; "Los politicos pretenden retomar el control de los cargos judiciales," La Razon, 13 August 2004, http://www.la-razon.com/El_evento/Agosto/eve040813a.html.

30 "Las acefalias en el Poder Judicial seran cubiertas hasta octubre" and "Los malos jueces seran alejados de sus cargos," La Razon, 11 August 2004, both at http://www.la-razon.com/El_evento/Agosto/eve040811a.html.

31 "Rebellion succeeds, then fades from sight," Latin American Weekly Report, 18 May 2004, 5.

32 "Las FFAA acusan a la justicia civil de afectar su integridad," La Razon, 8 August 2004, http://ea.gmcsa.net/2004/08-Agosto/20040808/Seguridad/Agosto/seg040808b.html; "Mesa promete a los militares una ley de proteccion especial," La Razon, 8 August 2004, http://ea.gmcsa.net/2004/08-Agosto/20040808/Seguridad/Agosto/seg040808a.html.

33 Juan Forero, "Where the Incas Ruled, Indians Are Hoping for Power," the New York Times, 17 July 2004.

34 "Corruption Perceptions Index 2004" (Berlin: Transparency International, 2004), http://www.transparency.org/cpi/2004/cpi2004.en.html.

35 "La aprobacion de Mesa cae ocho puntos."

36 Guadelupe Cajias de la Vega, "Certezas y dudas en el debate de una nueva norma," in La promocion de la democracia a traves del acceso de la informacion: Bolivia (Atlanta: Carter Center, 2004), 85.

37 Unpublished report by Plan de Trabajo, Programa de Apoyo a la Lucha Contra la Corrupcion, Casals/USAID, November 2004-November 2005.

38 Lupe Cajias, "Bolivia" (Washington, DC: Organization of American States [OAS], 2004).

39 "Lupe Cajias no ve corrupcion en el Gobierno y se fija en las alcaldias," La Razon, 16 August 2004, http://www.la-razon.com/info_lunes/agosto/inf040816a.html; confidential interview by author, October 2004.

40 Mechanism for Follow-up on Implementation of the Inter-American Convention against Corruption, Sixth Meeting of the Committee of Experts (Washington, DC: OAS, 26-30 July 2004).

41 "El nuevo Fiscal hace planes y pide dinero para ejecutarlos," La Razon, 13 August 2004, http://www.la-razon.com/el_evento/Agosto/eve040813b.html; "Fiscalia General declarara 740 cargos en vacancia," La Razon, 11 August 2004, http://ea.gmcsa.net/2004/08-Agosto/20040810/Seguridad/Agosto/seg040810a.html.

42 Aruquipa, "Terrorism Intensifies," 3-4.

43 "Los partidos revelan como se cuotean el Parlamento," La Razon, 31 August 2004, http://www.la-razon.com/politica/Agosto/po1040831a.html; "Los escandalos en la Policia frenan los deseos de cambio," La Razon, 17 September 2004, http://www.la-Razon.com/seguridad/septiembre/seg040917c.html.

44 Antonio Birbuet Dias, "Administracion publica y acceso a la informacion," in La Promocion de la democracia a traves del acceso a la informacion: Bolivia (Atlanta: Carter Center, 2004), 20-22.

45 Mesa, "Mensaje-Informe."

46 Cajias, "Certezas y dudas," 87.

47 Miguel Solana, Portales de Transparencia: Delivering Public Financial Information to Citizens in Five Latin American Countries (Manchester, UK: University of Manchester, December 2003), http://www.e-devexchange.org/eGov/laportals.htm.

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