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Customary law in search of balance: Bolivia's quest for a new concept of "rights" and the construction of ethnicity.


On 7 March 2009 an angry crowd of Aymara inhabitants of the hamlet of Sank'ajahuira and surrounding rural communities gathered on the shores of Lake Titicaca in the highlands of Bolivia, then attacked and occupied the house of Victor Hugo Cardenas, the country's former vice-president. His wife Lidia, her sister-in-law, a son, a daughter, and a nephew were battered and suffered injuries during the attack. Cardenas himself was not present during this act of "communal justice."

When explaining and defending the assault, people such as the canton spokesperson Alfredo Huanapaco Quispe, stated that the act was justified because "[Cardenas] abandoned his property, his lands did not fulfil a social function [and] he did not heed the ancestors. For that reason the people have decided to take his house, gentleman-like, without violence" (La Razon, 8 March 2009). (1) In other statements, Cardenas, who is himself of Aymara origin, was accused of not complying with community obligations and of having campaigned against the new constitution launched by the administration of President Evo Morales. Notwithstanding protests from Cardenas and others, that constitution had been approved by over 60% of voters in a national referendum on 25 January 2009. And that very constitution was cited to justify the legitimacy of the act. Locals argued that communal justice, without interference from national statutory justice, was now acknowledged as lawful and valid. A spokesperson for the ponchos rojos--a militant pro-Evo Morales group from the adjacent village of Achacachi--ruled out suggestions that a legal investigation would start and declared that they would not accept any public prosecutor in the region: "these prosecutors should first read articles 190, 191 and 192 of the new constitution" (La Prensa, 11 March 2009). At the occasion, and responding to questions by journalists, comunarios (community members) added other accusations against Cardenas, implying that he was a "traitor to his race," had been disloyal to his community, had refused to appear at community meetings to which he had been summoned to settle discords, and that, because of all that, the local people had decided to act according to communal and customary rule (La Prensa, 10 and 11 March 2009; La Razon, 9 and 11 March 2009). According to La Prensa (8 March 2009), a comunario stated that "[w]e don't want the k 'aras [whites] [any longer], we need to rule ourselves, this is the change, the transition now, and for that reason we came to do this."

Some of the key controversies haunting the country converged in the incident. These controversies are about the span of communal rights and guarantees for all citizens, the disputed need for a "decolonization" of the country and its institutions, the scope and content of plural democracy, the relation between statutory and customary law, and how all of these factors are addressed in the new constitution. They become evident when reviewing the comments of both supporters and opponents of the current administration, and through a check of the new constitution that, despite having been approved by a large majority, still has many adamant opponents (Molina 2009; Ortiz 2009; Dabdoub 2009). Moreover, a consolidated institutional structure to deal with conflicts such as this one is absent in Bolivia. The main reason is that the judiciary system has always been inefficient and corrupt; additionally, it is now strongly politicized. (2)

The debates about the place and scope of communal rights are characterized by claims about respect for indigenous traditions, identities, and customs--all of which have been under threat throughout the colonial and republican periods in Bolivia (Acosta and Martinez 2009; Sieder 2002)--versus the primacy of a liberal edifice of rights and guarantees centred on the individual citizen. The election of the country's first indigenous president, Evo Morales, in December 2005, backed by the Movimiento al Socialismo (MAS) party, allegedly overturned a history of rights-on-paper that in fact often did not really practice respect for indigenous traditions. And now, at long last, the indigenous majority (3) had obtained conditions in which it could realize a recovery of its history, and could enforce official, public, and legal legitimacy for its cosmologies, practices, values, and concepts of justice.

The new constitution spells out the traditional individual citizen rights, but also explicitly acknowledges the indigenous worldviews and endorses their application and consequences in realms like the definition of the nation-state as plurinacional, the complementary administration of justice through communitarian justice (justicia comunitaria), the educational curriculum, the economic sphere--fostering the idea of buen vivir (living well) instead of Western greed and expansion, and respect for Mother Earth, or pachamama--healthcare, including rehabilitation for traditional practices and intellectual property rights on knowledge of medicinal plants, and territorial autonomies for indigenous peoples (Assies 2011).

Criticism is voiced, first, by some non-indigenous Bolivians who express concern about the place of their identities, rights, and beliefs (Molina 2007; Moreno Morales 2011), and find themselves in the awkward position of feeling the need to search for an ethnic identity. (4) Behind this feeling is the fact that in the new constitution two types of rights seem to be present, each concerning different types of carriers of such rights. One type of rights seems to apply to someone other than the individual Bolivian citizen, thus inevitably affecting the universality and indistinctiveness usually associated with the very idea of rights. These rights especially and exclusively refer to indigenous peoples and their communities, thus underlining their special status. For all other citizens, the common civil, political and social rights would apply.

Second, some critics lament the compromising of the established rule of law, of democratic institutionality, and the denial of distinctions between citizens. Cuellar Nunez, president of the Santa Cruz Colegio de Abogados, asserted in an interview in May 2008, in perhaps overstated terms, that "the rule of law has broken down, and that is dangerous because we could relapse into a state of barbarity where the law of the strongest rules." (5) Third, many critics express doubts about the communal administration of justice, because they are concerned that "mob justice," (6) inequality vis-a-vis the law, and violations of individual rights might be the outcome. In sum, many non-indigenous people in Bolivia find it hard to witness the amendment of the allegedly ethnically blind, Western-inspired democratic political structure. Many indigenous peoples, however, insist that such a structure was never really practiced, especially with regard to the indigenous population, and point to the unfairness of the incumbent Western monopoly on the definitions and administration of justice (see Zegada, Arce, Canedo, and Quispe 2011, 111).

Yet another crucial issue is the way the "indigeneity" now recognized in the constitution is actually lived, practiced, and embodied in contemporary indigenous worlds. (7) Various authors have pointed out that the constitution is biased toward the indigenous highland populations: the Quechuas and especially the Aymaras (Albro 2010a, 72). The remaining, smaller indigenous populations--totalling over 30 groups and languages, mostly in the eastern lowlands--find their cosmologies and ways of living hardly reflected in the new constitution.

Apart from that, the depictions of indigeneity in the constitution may echo idealized, homogenized, and imagined images rather than the much more hybrid and mixed lives the majority of Bolivian indigenous people actually live (Albro 2010a). These untainted images, however, can still influence and even trigger indigenous groups' self-awareness, visions about new entitlements, and actions that do not really correspond with the quotidian, habitual, routines. These images highlight a group's identity and collectively based traditions, but hardly reflect the multiple spheres, activities, engagements, and networks in which the members of the collective navigate (Albro 2010a, 74). But, being the embodiment of new rights and prestige, they are strong enough to reaffirm a feeling of collective belonging that, at least in specific situations or conflicts, can reduce the effects of the daily multiplicity of engagement spheres and convert the indigeneity marker into a powerful inducer of action. (8) In doing so, these images distort the multifarious ways in which, for decades, indigenous citizens have struggled for their rights; made themselves present in local, regional, and, recently, national politics; made use of opportunities offered by earlier constitutional reforms and legal acknowledgements that have been underway since before 1994; and engaged in multiple organizational forums (Lazar 2008), ranging from trade unions, committees taking initiatives for local schools, neighbourhood councils, peasant associations, urban religious and folklore brotherhoods (fraternidades), traditional rural territorial and political kinship formations such as ayllus, and national ethnic movements such as CIDOB and CONAMAQ.

In a way, the discourses employed by the Sank'ajahuira inhabitants seem to fit in with the idea of "strategic essentialism" (Spivak 1988), which is also embodied in the constitution. However, things might be a bit more complicated. Invoking any strategic-essentialist idiom is to be understood in the context of specific situations and frictions concerning the status and contents of legal stipulations, that make the indigenous peoples the bearers of particular rights or autonomies. In an effort to unravel the dynamics prompted by the new constitutional articulations of indigenous identities, and how these interact with earlier and less high-profiled practices of indigenous cultural and political participation in Bolivia, I will first sketch Bolivia's recent political history and how this translated into a specific parlance in the new constitution. I will subsequently provide more details about the sequence of the Sank'ajahuira events. I will then address the issue of how adequately the new stipulations represent the plural, actual lives and beliefs of Bolivia's indigenous population, and discuss how the constitutional text induces a selective and self-referential use of the notions of the "rights" it mentions. Finally, I will look at how the new constitution enables but also moulds a recourse to communal justice, even in cases in which its legitimacy is questionable.

A Brief Sketch of Bolivia's Political Landscape

As in many other South American countries, in Bolivia the return of democracy in 1982 was euphorically welcomed and met with high expectations. But, as elsewhere, the contentment soon faded, and disillusion and frustration grew (see, for example, Rojas Ortuste 1994; Tapia Mealla et al. 2008). (9) Although basic civil rights were now, in general, respected--albeit that discrimination toward indigenous peoples went on in politics and in daily societal interaction--democracy failed to deliver on crucial issues (Diamond and Plattner 1996). Further, being accompanied by a neoliberal transition (Assies, Calderon, and Salman 2005, 6, 22-23), democracy did not manage to reduce poverty, it failed to improve the provision of services, it witnessed a growing gap between the prosperous and the deprived, and it demonstrated frustratingly low levels of economic growth (Klein 2011, 42). Instead of jobs being created, thousands of workers were dismissed as state companies were liquidated. As a consequence, it fell short of delivering social rights. (10) Moreover, democracy was usurped by corrupt, elitist, and exclusionary party systems, which were incapable of transparently presenting their policy proposals or adequately representing societal sectors (Assies and Salman 2004; Koonings and Mansilla 2004). It also largely preserved a de facto exclusion of indigenous voices, interests, and political alternatives. Democracy thus ended up respecting political rights often in the breach (Assies and Salman 2003). (11)

From the early 1990s onward, these processes led to intense academic and political debates and to a fierce questioning of the traditional democracy (Fraser and Honneth 2003; Salman 2009). "Formal" and "liberal" democracy was accused of, in effect, blocking real influence and participation for subaltern societal sectors and political viewpoints, as well as of perpetuating discrimination against Bolivia's indigenous majority, of fostering corruption, and, basically, of not fitting in with indigenous cultures and local governing traditions. In an attempt, for example, to respond to the increasingly ethnic overtones, which originated in the 1960s and 1970s (see Albo 2008a), in many of these criticisms (Klein 2011, 49-53), and in following up the ratification in 1989 of ILO Convention 169 of that same year on indigenous rights, Bolivia reformed its constitution in 1994, acknowledging for the first time its multi-cultural and multi-ethnic make-up (Assies and Salman 2005).

That same year saw the implementation of a decentralization policy, in which local and indigenous forms of social and political organization were acknowledged as traditional local or grassroots associations, including neighbourhood committees, agrarian unions, and indigenous ayllus, while identifying and equating them all as "territorial base organizations" (Albro 2010a, 75). Many observers (Lucero 2008; Van Cott 2008; Albro 2006; Klein 2011, 57-60; Calla 1999) agree that this decentralization policy both stimulated and strengthened indigenous organizations and movements, and, eventually, the national political presence of indigenous peoples. (12)

Despite these reforms, Bolivian politics--in particular during the administrations of Banzer/Quiroga (1997-2002), Sanchez de Lozada II (2002-03), and Mesa (2003-05)--continued to vex large segments of the population, the first for disastrous ineptness, the second for neoliberal stubbornness, and the last for Mesa's inability to solve any of the pressing issues. A prolonged series of massive protests between 2000 and 2005 (Crabtree 2005, 2009; Kohl and Farthing 2006; Arbona 2006) eventually led to electoral victory for the leftist and indigenous MAS party, led by Evo Morales. During the run-up to this triumph, an indigenous discourse on the colonial and postcolonial history of discrimination and exploitation, and on the need for a revival of indigenous thinking and acting to set a new course for the country, grew in strength (Garcia Linera, Chavez Leon, and Costas Monje 2008; Lucero 2008; Yashar 2005; Salman 2009; Webber 2011). The victory was obviously accompanied by the adoption by many indigenous peoples in Bolivia, and most conspicuously various Aymara intellectuals, of a new political, public, and academic brazenness.

One of the many initiatives undertaken by the new administration was the launch of a constituent assembly--which gathered in the country's formal capital, Sucre--and the drawing up of a new, indigene-friendly constitution, the Nueva Constitucion Politica del Estado (NCPE; see Assies 2011; Rodriguez 2008). The project, however, met with fierce resistance. After much bickering, endless negotiations, recurring deliberate absences of certain minority fractions, violent street protests, and the transfer of the assembly to the city of Oruro, the new constitution was finally approved in a popular referendum in January 2009. However, the new constitution was criticized for allegedly undermining individual citizen equality, favouring customary over statutory law, and privileging some citizens over others. In a way, the debate was on ethnicity as one of the ingredients of legal arrangements: should ethnic identity play a role in how rights and prerogatives were to be distributed over the population (Gros 2008)? And what precisely were the contents of these ethnic differences? In the end, "[w]hile a broad variety of individual rights is spelled out in the constitution in Articles 15-29 and elsewhere, Articles 30-32 identify distinct indigenous rights. Throughout the constitution collective indigenous political, economic, social, cultural, and territorial rights are spelled out in detail, establishing a legal framework for the 'autonomy' of the 'communitarian democracy' of Bolivia's indigenous people" (Albro 2010a, 79).

One of the key issues of debate is the communitarian administration of justice and the scope of its applicability in terms of legal formulation and the population it was to apply to. As I will elaborate below, one of the problems is that the concept of "community" used in the new constitution tends to be too organic and history-based to really fit contemporary community life, whereas indigenous voices use the constitution to portray the old community life as intact and entitled to all the prerogatives that the constitution stipulates.

In December 2010, the Ley de deslinde jurisdiccional (Law on jurisdictional limits or delineation), which detailed the precise span of customary law and, in particular, community justice, was finally passed by Parliament. It sets the limits on where communal justice can be applied and determines which sanctions can be imposed. Conspicuously, and against the demands of more radical indigenous voices, it states that cases of homicide, rape, or terrorism should go to statutory courts. And, of course, the law explicitly states that practices like lynching are forbidden and can never be seen as forms of communal justice. It also confirms that non-indigenous individuals should not be tried according to indigenous customs, even if they commit crimes within indigenous communities, and that women's equal rights are to be guaranteed.

Even though this law was passed almost two years after the events described in the introduction took place, what happened in Sank'ajahuira can still be seen as one of the litmus tests for the status of the constitutional and the law text. In particular, the way in which "indigeneity" was defined, distinguished, and portrayed turned out to be more than just a matter of accuracy; it was also a political issue (Zavaleta 2008). To provide the idea of indigenous rights with a solid, legitimacy-providing basis, a well-articulated, delineated, and affirmative definition was needed. But in real life, indigenous people are often engaged in a range of mutually porous, hybrid worlds and activities. Nevertheless, legal formulations appeal to and sustain the revival of things long lost, especially among Aymara intellectuals, as is illustrated by a more detailed exposition of the processes that led to this result and how it was applied in the Sank'ajahuira event.

Contextualizing the House Raid in Sank'ajahuira

Bolivia's current administration is typified by an undeniable turn to a revaluation of indigeneity, accompanied by a fierce rejection of former neoliberal policies (Van Cott 2008; Tapia Mealla 2009; Tapia Mealla et al. 2008; Pati Paco, Mamani Ramirez, and Quispe Chipana 2009; Mayorga and Cordova 2008; Albo 2008b; Combes 2005; Ticano Alejo 2005). Both discourses converge in an argument in which indigenous values, traditions, and cosmologies are contrasted with the greediness, injustices, alienation, and foreign nature of dominant Western economic and political prescriptions. This argument fed into the process during which, amidst fierce contention, the new constitution was drafted and approved. In this constitution, ample space is reserved for these indigenous legacies: their territories, their collective self-determination, their customary law and communal justice, and their autonomies are all warranted (Assies 2011). Additionally, indigenous legacies and worldviews are cited to imply how governance can be done in an ethical way (Articles 8, 11, 30[5]).

To appease critics, such formulations are often accompanied by such qualifications as the jurisdiccion indigena, which will "respect ... the rights and guarantees established in this constitution" (NCPE, article 199, II), with "rights" referring to traditional, liberal, individual rights. Thus, the constitution is marked by a mixture of indigenous inspirations and the canonical individual rights that are common to all liberal democracies (Albro 2010a, 78-80). It is telling that in the constitution, the common phrasing of indigenous usos y costumbres (usages and customs) has been changed into normas y procedimientos propios (our own norms and procedures). The change is because the first concept has been criticized for being a Spanish invention, distinguishing in a biased and ethnocentric way the "real" judiciary from mere "habits" (Velasco Rojas 2009).

The text is thus also keen on emphasizing equality between inspirations of both Western and indigenous origin, instead of suggesting that one overarching system will allow for some leeway for an alternative, secondary, system. Due to this ambivalence, many (see Gamboa 2010) have censured the constitution for being inconsistent because it refers to both collective and individual--or "cultural-particularistic" and "universal"--rights, whereas others have lauded the brave attempt to combine the classic, individualized citizen rights with the recognition of cultural and ethnic differences and the right to practice these differences. (13) At any rate, the constitution seems to allude to different types of rights. This differentiation naturally encourages different emphases on which brand of rights should prevail in specific situations, and it hampers a comparison of rights as though they were of the same nature.

It was in this context of unsettledness of the precise meanings and interpretations of the clauses of the new constitution that the events in Sank'ajahuira and the subsequent row over its implications occurred. The declarations of the defenders of the local right in this case resonate with an image of the wholeness of the indigenous rural universe and distinctiveness. This they took from the formulations in which the indigenous tradition is portrayed as intact and as equally well articulated as any other legal and institutional universe. Moreover, it was not so much the dispute over the precise nature and reconcilability (or irreconcilability) of two realms of right definitions that took central stage in the row. Rather, it was the claim for autonomy and local sovereignty that dominated. Their reading of the new constitution apparently selected the new status and mandate of "their" tradition to be the main issue, rather than entering into a debate on different right discourses.

To illustrate this point, let us return to the Sank'ajahuira incident. Victor Hugo Cardenas is a prominent Bolivian politician and intellectual. During the first administration of President Gonzalo Sanchez de Lozada (1993-97), Cardenas became the country's first indigenous vice-president. At the time, he was admired by many for his rise to power and for his accomplishments. As vice-president, he was one of the initiators of the decentralization law that acknowledged indigenous forms of local political organization and eventually helped both the entry of indigenous peoples into municipal and national politics and Evo's ascent to power (see Albro 2006). He also inspired national educational reforms comprising bilingual and multicultural instruction, and he was behind the constitutional reform of 1994 that acknowledged the "pluri-multi" composition of the population. But the political tide turned. Whereas Sanchez de Lozada's first term was often hailed for its efficiency and innovation--but rejected for its privatizations and other neoliberal traits--his second term (2002-03) ended in disaster: the president was toppled in October 2003 (Mihaly 2006). As Sanchez de Lozada was more and more categorically identified as an inveterate neoliberal, Cardenas's legacy became tainted with the same brush. Everything initiated by or connected to the governments of those years now became disqualified as neoliberal--as did Cardenas.

In later years, Cardenas became a critic of Morales's administration, denouncing its "indigenous fundamentalism" and intolerance toward others. In other words, Cardenas's ethnic identity was affected by his political stance. The issue of his rights became less highlighted than the issue of his not belonging. Cardenas's stance was interpreted by ideological hardliners as incompatible with indigenous and Aymara distinctiveness. Moreover, this distinctiveness was interpreted in line with the constitution: it was taken as unequivocal and covering organically interconnected political, legal, and ethnic realms.

Although Cardenas mainly lives in his house in La Paz, his Aymara roots still tied him to the community in which he was born, even after his migration, his success, and his status after completing his term as vice-president. This is the case for many thousands of migrated Aymaras. Despite their migration to the cities or the eastern regions of the country, many regularly return to their communities, and may, during their intermittent presence, still assume leadership tasks (cargos) there, or contribute--if they have fared well--to the hamlet's infrastructural improvements and annual celebrations. The community expects this of the migrants; they are still considered members of the collective and are granted, albeit virtually, ownership rights to a piece of the communal land. (14) Cardenas, according to his community, did not live up to his obligations. He "let them down." He was therefore no longer a genuine community member. This sentiment was easy to mobilize when political accounts needed to be settled. It suggests that what was behind the incident was not real community business, but political matters.

The debate on the precise sequence of events, and the political reactions of various protagonists, are also telling about the turning to legal arguments and identity politics. Felipe Cruz Alarcon is one of the voices of the collective that carried out the attack, and one of the defenders of the communal justice argument. He asserted (La Prensa, 9 March 2009) that the decision to occupy the house had been taken by a meeting that united the nine communities in the immediate vicinity of Sank'ajahuira, and that the decision could have been reversed only if a new meeting of these communities had decided to do so. He thus claimed that authentic communal justice processes had backed the collective decision. He accused Cardenas of having betrayed his community and his province, both during and after his vice-presidency. Cardenas had therefore been turned into a defector, and his house and properties into things that had, in effect, been stolen from the community, which was why the words !Recuperado para el pueblo, carajo! (Re-conquered for the people, dammit!) were painted on his door (La Prensa, 8 March 2009).

Community members interviewed by national newspapers like La Prensa, La Razon, and El Deber, also mentioned Cardenas's last name as an issue that had aroused their anger. His indigenous last name had originally been Choquehuanca (Los Tiempos, 14 March 2009): he had thus betrayed his roots. These accusations fit in well with an idea that had been strong in more radical indigenous circles in Bolivia, namely that Cardenas had been a sycophant since he had accepted the vice-presidency in the 1990s. The Aymara word for it is llunk 'u. Such people forsake and, in a way, despise "their own people" for their own advantage. This notion is a strong one in Aymara discourse, and it undoubtedly contributed to the ambivalent views held by many Aymaras on Cardenas's successful career (Albro 2010b). It boiled down to a discourse in which autonomous collective rights played down the individual citizen's rights.

The attackers admitted that some violence had been used, because Cardenas's wife had insulted them, shouting from the window as they approached. But they insisted she had left the house "voluntarily." Conspicuously, the house was abandoned by the occupiers immediately after the assault. Furniture--of which there allegedly was not much--was looted, and a small fire was rapidly extinguished. The house was apparently not seriously damaged (La Prensa, 14 March 2009). The assailants patrolled outside, but insisted they would not allow the police, or any other delegates of state entities or the judiciary, to enter the house. For days, the police kept an eye on the site from 200 metres away. The assailants insisted that the area was under communal rule, and would not accept interference from outside. The house, they explained, would obtain a new function as a home for the elderly from the surrounding communities. All this talk was intended to underline that due communal justice had been done. But no one explained why other community members in similar conditions had not been evicted or why no transparent run-up to the act, including warnings to the person involved, had taken place. Not right, but self-rule, emerged as the key element in the local justification.

On Friday, 13 March, six days after the assault, a meeting (cabildo) of over 500 comuneros from the direct vicinity was held. This cabildo reaffirmed that Cardenas and his family had been expelled from the canton. Symbolically, Cardenas had now died. To commemorate the death, one minute of silence was held, after which a muneco, a straw doll personalizing Cardenas, was buried. Once again, the independence of the province and the legitimacy of the measure were underlined. An apthapi (perhaps best translated as a ceremonial, communal Andean picnic) concluded the gathering. The meeting, which was held under the eyes of the national broadcaster's television cameras--albeit from a distance, as it was an "internal affair"--nevertheless strengthened the impression that the initiative was not as duly prepared and collectively agreed upon as the first declarations by the assailants had suggested and as the constitution suggests are the procedural prescriptions for such communal justice.

Cardenas, his legal counsellors, and opposition spokespersons basically stated that this was exactly what they had indicated as a possible consequence of the new constitution. It would lead, as they claimed to have suggested from the outset, to communal arbitrariness, to "fickle crowds" imposing their will, and to individual citizens seeing their properties threatened. A La Prensa columnist, Carlos Morales Pena, used the term "indigenous fascism" to express his indignation (15 March 2009). Another journalist, Rery Maldonado, writing in the weekly Pulso (29 March 2009, 495), angrily asked about the position of those who "are not part of that community, or of any other one, or those for whom no other thing remains than to be just citizens of this country, without the bonus of an ancestral gang of thugs." Cardenas himself further explained that his last name had been changed by his father in the 1940s in order that he might enter university: the university would not have accepted him had he used his indigenous last name. It should be noted that many thousands of Bolivians of indigenous descent changed their names, mainly during the twentieth century, in an attempt to avoid discrimination.

Cardenas and his defenders further emphasized that while he had been vice-president he had done his utmost to foster projects for his community and his province. They added that, according to their information, most of the attackers had not even been members of his community, that this was not an example of communitarian justice because a whole series of prerequisites to such a process had not duly been honoured, and that indiscriminate dispossession of properties was not part of the tradition in the first place. Cardenas further commented that such a thing as a home for the elderly in the communities was profoundly "un-indigenous." As to the course of events, some suggested that many of the attackers had been drunk, that violence had indeed been used, that it had been a whimsical outburst and not a communal process--the cabildo was an attempt to suggest so, after the event--and that politics had been behind it.

However, most of the reactions focused on the alleged illegality of the act. The constitution, they asserted, even in its present shape, did not condone this type of communal punishment. It was not a communal right. It was highlighted that if such practices were really authorized, it meant that dissidence would not be tolerated in the quasi-autonomous indigenous communities, and that private property and the rule of law would be in permanent danger in regions where indigenous communal ruling prevailed. Many MAS authorities agreed with these diagnoses. The vice-minister of the Interior, Marcos Farfan, declared that the public prosecutor should act, and offered in the name of the government full guarantees for Cardenas. Prominent MAS member Raul Prada stressed that this was not communal justice, and that the ordinary justice system ought to take action (La Prensa, 14 March 2009). The vice-minister of Justice, Wilfredo Chavez, agreed (La Razon, 8 March 2009).

But the general picture was more ambiguous. The police had not interfered, apparently to avoid a violent confrontation, but also because no one had ordered them to do so. More conspicuously, both the president and the vice-president expressed themselves with equivocal words. Evo deplored the act, but added that "[t]he Bolivian people can't stand nor forgive traitors" and wondered what Cardenas had done to infuriate his people so much (La Prensa, 10 March 2009). Vice-President Alvaro Garcia Linera condemned any attack on private property, but at the same time severely criticised Cardenas for his earlier contributions to neoliberal policies. He said that he understood the comuneros' anger (Agencia Boliviana de Informacion, 9 March 2009).

Whereas the defenders of the act insisted upon communal justice as acknowledged by the constitution, even most pro-Evo authorities contended that this was not what the new constitution was about, that this was not communal justice in the way that the constitution had meant it, and that rights and guarantees for all Bolivians were secured in the new constitution as equally as in the old constitution. Opposition spokespersons, however, often stressed that the new constitution revealed its flaws precisely because it offered excuses for this type of act. Behind such accusations was the implication that the way indigenous autonomies and distinctiveness were portrayed in the constitution did not genuinely reflect the ways indigenous people lived and thought. Rather, it endorsed unjustified resorting to "untouchable" local self-management.

Moulding Integrity in the Midst of Miscellany

The issues are, beyond any doubt, rights and ethnicity. Observers who are sympathetic to Bolivia's attempts to modify or improve the hitherto unsatisfying constitutional system hold that there are different possible forms of rule of law and justice. Indigenous traditions should be recognized, honoured, and respected, and the false homogeneity of colonial inspiration should be abolished. Ethnic pluralism should be reflected in a plurality

of rights, procedures, and autonomies. These values were what the new constitution was about (Lecona Camacha and Quiroz Quispe 2009, 176-179 and 243-248; Ministerio de Justicia 2008, 93-123; Schilling-Vacaflor 2008; Saavedra 2009; Mamani 2008; Balderrama et al. 2009). In this discourse, however, the nature of indigeneity is often idolized and viewed through blinkers. As a consequence, it alludes to indigenous self-esteem and pride, rather than to alternative ways to enjoy and exercise rights in contemporary indigenous life-worlds.

Others have stressed the danger of fiddling with the foundations of the established democratic system, and of experimenting with potentially dangerous forms of interest promotion, collective access to government circles, the weakening of conventional and institutionalized checks and balances (Barrios Suvelza 2008; Molina 2007), and the strengthening of autonomies. Such changes would, in their view, put at risk the rule of law that has proven its value in the Western world and, as they claim, beyond (Zenker 2011, 64; Sen 2001; Dalton, Shin, and Jou 2008). Some, such as columnist Carlos Morales Pena, add that the current administration in Bolivia tends toward an "indigenous fundamentalism" that "shatters the rule of law in favour of territorial and institutional fragmentation" (La Prensa, 15 March 2009). The emphasis on collective rights and ethnicity as its basis is thus deeply questioned.

At the same time, there is a strong, renewed interest in indigenous governance traditions and communitarian practices. These traditions, it is claimed, are based on a reciprocal complex of rights and obligations for all members of a community. Moreover, regular assembly-like meetings often take place, and these are characterized by massive communal participation. The mode of decision-making is frequently deliberative, lengthy, and consensus-seeking. Instead of referring to a personal sovereign status as "representative," authorities consider themselves "delegates" who must constantly relate and seek reconfirmation of their position and legitimacy (Rivera 1990; Delgadillo Terceros 2004, 107-109). These practices, the argument goes, could heal the corrupted routine that neoliberalism-cum-liberal democracy had brought to the country. These ideas are now often called upon by President Morales and representatives of his administration, and even more assertively by ethnic social movements and communities when emphasizing their ethnic difference. (15)

To strengthen their point of view, those in more radical indigenous circles often not only plead for collective rights, but also idealize the indigenous universe. They make uncountable references to millenarian traditions, values, cosmologies, and practices. The constitution itself also contains these types of formulations. On autonomy, it is stated that "indigenous, originals, (16) and peasant autonomy consists in self-governance as the exercise of free determination of the originals' indigenous peasants' peoples and nations, whose population shares territory, culture, history, languages, and judicial, political, social and economic institutions" (Article 289; Articles 290, 291, and 292 elaborate on this idea). The idea of communitarian justice departs from similar suppositions about the indigenous as organically tied to their traditions and territories, as basically rural, and as genuine reproducers of their cultural legacies (Ley de deslinde jurisdiccional, Articles 2, 4). However, this is not the case.

Calling upon the Constitution, Discarding Real Developments

The comuneros of Sank'ajahuira and the surrounding communities appeal to communal laws, or rules, or "one's own norms and procedures" (normas y procedimientos propios), and state that the new constitution entitles them to install and apply the concomitant prerogatives in their territories. There are two debatable issues related to the matter. The first is about the constitution and the Ley de deslinde jurisdiccional: the ways in and degrees to which these actually create scope for communal law, and restrictions on--and curtailments of--their legitimacy. The second issue is the degree to which the actual configuration and realities of this and other communities ask for adaptations and qualifications with regard to the tenability of what is considered the original package of communal members' rights and obligations.

On the first issue, many defend the idea of an equal, legitimate place for collective and communal rights in Bolivia. The Ley de deslinde jurisdiccional affirms that "the indigenous jurisdiction enjoys equal hierarchy as the ordinary jurisdiction" (Article 3). Indigenous ways of self-governing and administering justice have hardly been taken into account historically in the make-up of Bolivian state institutions. The demand today goes beyond requesting some enclaves in which indigenous traditional practices would be tolerated; instead, it is demanded that the whole governmental and judicial edifice of the Bolivian state ought to integrate indigenous norms and procedures. Communal administration of justice is one obvious element of such a new state edifice. It is claimed that this communality is affirmed in the new constitution. But the constitution's text is actually a mixture of different inspirations. On the one hand, the Bolivian state is defined, for example, as "communitarian, democratic, intercultural, decentralized and with autonomies" (Article 1). Article 30.II.14 specifies that indigenous nations and peoples have the right "to the exercise of their political, judicial and economic systems in accordance with their cosmovision," and Article 30.II.5 adds that they have the right to "their institutions being part of the state structure." Here, other new and complementary ways of decentralized government seem warranted. On the other hand, Articles 21 to 29 clearly establish all the common civil and political rights, to las bolivianas y los bolivianos; in other words, to all individuals. This ambiguity, referred to above, is part of the problem, as it allows for selective quoting (Salman 2008).

The controversy is put to the test when we analyze in somewhat more depth the features of the communities that are now bearers of collective or communal rights, which was the second issue. These communities are of a diverse nature. Confining themselves to some regions in the western highlands of the country, many observers stress that historical contingencies exerted a great influence on how such communities function and identify themselves today. In various southern provinces of the area, the presence of haciendas was historically limited. As a consequence, indigenous communities' norms and procedures survived relatively unscathed. When, after the 1952 revolution--which brought universal suffrage, the ousting of the oligarchy, and citizenship rights--haciendas were abolished and land was given back to the communities, all these communities were initially organized as agrarian trade unions or sindicatos. The idea was inspired both by the strong tradition of trade unionism in Bolivia, which had contributed decisively to the success of the revolution, and by the emphasis in the policies of the time on a class analysis above an ethnic one. "Indigenous" people and Indians became peasants, campesinos. Traditional leadership positions such as the jilaqata were now rebaptized as secretary-general, and on higher levels--such as the marka, or group of communities--in Aymara one would distinguish between the jach'a mallku (executive secretary), the sullka mallku (secretary for external relations) and the qillkiri mallku (administrative secretary).

Nevertheless, in the 1970s and 1980s, a reversal occurred: many sindicatos returned to traditional organizational structures, and they revived the ayllu (Plata 2007). The ayllu is a pre-Columbian organization of communities in the Andes, combining kinship-like links with political and territorial features. It includes the most commonly known elements of Andean rural structures: traditional rotative leadership positions (cargos), reciprocity (ayni), collective work projects (minkas), and the internal administration of justice, usually through extended plenary deliberations. In practice, most of this jurisdiction concerned land issues. Violence, murders, rapes, and other criminal acts were often addressed by ordinary justice. Internal social control is strong but "soft" in such communities, and in the ayllus, state territorial division (into municipalities and provinces) is often uncared for and land is collective property. At the same time, however, these communities provide much leeway for de facto long-term individual and family land use, and react flexibly to processes such as out-migration and new socio-economic stratifications resulting from, for instance, an ayllu member buying a truck (Plata 2007, personal communication 25 May 2009). Nevertheless, this type of community, which has relatively close links to precolonial local arrangements, is often presented as exemplary of "the" indigenous universe for which the autonomies were meant.

But the rural indigenous world is more heterogeneous than that. In the northern provinces of the Altiplano, the hacienda system was more widespread. It contributed to associative forms in which sindicato features were much stronger. In these areas, the state presence was stronger, and consequently both state territorial divisions (breaking up the old ayllu configurations) and responsiveness to trade union structures and demand-making was greater. In these communities, strong social cohesion is combined with much more hierarchy and authoritarianism, with more severe and relentless internal control, and with more rigorous practices when internal regulation is at issue (Plata, personal communication).

Simultaneously, however, the ownership of land tends to be more mixed: the community's territory is collective in name, but the land cultivated is often de facto or even de jure individual. Also, the heritage system with regard to these individual entitlements is managed pragmatically: siblings negotiate amongst themselves to distribute the nature of community belonging, the obligation to assume cargos connected to it, and the liberties obtained once you no longer possess land. These siblings often come to an agreement on which compensations are paid for both the out-moving individual's liberties and the member's obligations. The result might be that individuals who mostly live in the cities have more membership entitlements than those who actually work the land. Thus, in terms of habitat, the communities are more dispersed: many live in the cities, work as schoolteachers or traders, and no longer cultivate land. The wealthier among them sometimes contribute to the community's well-being or infrastructure. And to complicate things even further, in recent times plots of land have often been sold to "foreigners"--individuals from outside the community. These individuals often build holiday homes or hotels on their plots, and the degree to which they partake in community life ranges from total detachment to doing their share in the rotation of cargos and contributing financially to the community's development. These features obviously affect community leadership, as they might be at odds with the traditional criteria for choosing leaders, such as prestige, age, or wisdom. Party politics might also penetrate the community's governance. Heterogeneous schemes of community leadership are the result. Conspicuously, although these communities are in fact quite hybrid, they tend to defend their right to community justice much more fiercely than the ayllus (Plata, personal communication). Sank'ajahuira is one of these communities.

Today, moreover, more than half of the Bolivian indigenous population lives in cities. There, they have the possibility of both keeping in touch with their communities of origin (Crandon-Malamud 1993) and adhering to claims about the appreciation of upholding traditions, including those related to governance. Additionally, they will often become involved in urban ways of organization, association, and political practice, changing their ways of thinking, abandoning traditions, rituals, celebrations, and teaching their mother tongue to their children. Their indigeneity transforms into an urban variety, in which both the individual and the collective have a place (Albro 2010a, 80-84) and to which the imagery of the indigenous universe as portrayed in the constitution and even more strongly so by various indigenous intellectuals (Cordero 2011; Munoz 2011) no longer applies. In other words, the "community" the constitution talks about and provides with a series of prerogatives is dissimilar to most of the communities that exist today. At the same time, however, it provides defenders of the new constitutional scheme on legal pluralism with arguments to suggest the communities are intact and with an uninterrupted prolongation of precolonial cultures and traditions.


Today, the indigenous peoples of Bolivia tend to be volatile, migrating, largely urban, path-dependent in their current practices, and heterogeneous in lifestyles and livelihoods. The constitution hardly refers to these indigenous peoples. Instead, it tends to speak to the indigenous voices that still point at rural, intact, uncontaminated, categorically different cosmologies, values, and institutions to defend their radical difference and therefore demand substantial autonomies and self-governance. In many of its formulations, the constitution was clearly inspired by the 2007 United Nations Declaration on the Rights of Indigenous Peoples. In the declaration, little room is given to the acknowledgement that many indigenous peoples and individuals now live hybrid lives and are at odds with entitlements of that declaration that refer to "Indigenous peoples [that] have the right to maintain and strengthen their distinct political, legal, economic, social and cultural institutions, while retaining their right to participate fully, if they so choose, in the political, economic, social and cultural life of the State." Although stating this right is of course correct and important, the "distinct political, legal, economic, social and cultural institutions" have in many cases adopted external elements, or have been in close interaction with similar institutions of the surrounding society for decades or even centuries.

Additionally, many indigenous people no longer live with or in these institutions. For instance, as argued by Toranzo (2008, 38), speaking Spanish "involves a change in customs and culture. In these circumstances, being indigenous is no longer a categorical distinction; it becomes a matter of combining things in ways that render reality more complex and differentiated." Toranzo added that "rigid concepts are often employed that bring fixity just when history involves ever-changing situations and concepts" (40). This is the paradox: given the history of discrimination against, and the exploitation and exclusion of, indigenous peoples, there are good reasons to use rigid and unhistorical vocabularies to define and delimit them as radically different rights-bearers, in order to better counter these attitudes of hegemonic societies.

And to add paradox to paradox: these rigid and unhistorical categories, and the discourses based upon them, turn into ingredients in and for ongoing history. They are raised and applied to respond to a history that is now perceived--and legally acknowledged--as unjust and exclusionary. Unreal categories, distinctions, and delineations turn out to have real effects. Communities turn to these images and depictions of the indigenous identity to support their autonomy claims, and also to back up their more general demands. The incongruence between their daily lives and the picture painted in the constitution and by community spokespersons and some indigenous intellectuals does not mean they will not use these texts in their strategic operations, especially if these are likely to produce benefits in specific societal spirits of the age--the specific hegemonic discourse of the time. This is even more the case if these images are widely communicated and resonate in different national and international public spheres.

In Bolivia's recent history, both external and internal sources have articulated and supported such images. Externally, international support for indigenous identities, autonomies, and rights stimulated the awakening of awareness about lost traditions and concepts, about entitlements to "development with identity" (Andolina, Laurie, and Radcliffe 2009, 53), and about the added political value of insistence upon the ethnic difference (Zenker 2011; Van Cott 2008; Andolina et al. 2009; Lucero 2008). "Indigenous identity has become a vehicle for the empowerment of marginalized peoples" (Breidenbach and Nyiri 2009, 223). Additionally, the rise to power of the MAS party was characterized by a strong emphasis on indigeneity as criticism of and remedy for all the bad things that Western neoliberalism had brought. The whole process was furthermore inspired by the 1989 ILO Convention 169, and the constitution was clearly directly induced by the 2007 UN Declaration on the Rights of Indigenous Peoples.

To strengthen their prestige, these traditions inevitably tend to be exaggerated, fixed, romanticized, and homogenized, leading to a "heritage-ization of living cultural traditions" (Breidenbach and Nyiri 2009, 247; see also Zenker 2011, 64; Eriksen 2001, 145; Canessa 2006b; Conklin 1997; Norval 1996). If the differences were gradual, or dynamic, or fading, the political impact of the claim would inevitably wane. In the current political setting in Bolivia, it is of crucial importance to make a strong case of the ethnic difference. It is, in a way, an example of "strategic essentialism" (Spivak 1988), although we need to qualify that claim. The construction of the ethnic difference obtains its significance not so much from the actual cultural or ethnic contents, but from the historical and political circumstances in which it is turned into an asset. In these circumstances, indigeneity needs to be idyllic, a bit mystical, and declared perfectly capable of dealing with such issues as serious crime, self-governance, the identity of the nation-state, and "racial betrayal." It is notable that such reasoning taps into the vocabularies and legitimacy offered by the "other," non-indigenous worlds to underline and ensure the distinctiveness and legality of the indigenous world. The latter's claim to be considered equal in rights and dignity is an argument borrowed from a rights discourse on cultural and human equality and entitlement to liberties that is profoundly un-indigenous.

Be that as it may, there exists the new constitution. This makes the whole process more than strategic essentialism. This constitution gives legitimacy to a strong, uncompromising claim for self-governance--even if in the textual version there are built-in restrictions to this right to unlimited and unsupervised autonomy, and even if this version does not allow communities or their individual members to settle all matters themselves. Given the history of repression, slight, and discrimination, the assertiveness and pushiness of the claims for respect and an equal (or even a bit larger) share in the decisions on national identity and the country's future is very understandable and in a way justified. The constitution gives it extra prestige, the incumbent government gives it a boost. However, it also stimulates an appeal to a reality that is suggested in the constitutional text, but often no longer exists in the communities that make this appeal.

This situation encourages a selective emphasis on types of rights, in which the dimension of collective rights--recapturing a history that, in fact, has withered--is privileged and the dimension of individual rights is downplayed. The reading of the constitution by today's assertive sectors of the indigenous population highlights the autonomy dimension and underrates the rights dimension. In that sense, a genuine intercultural exchange on the reconciliation of different dimensions of rights, instead of mainly on their respective scopes and applicability, has yet to be started in Bolivia. The political situation stimulates a tug of war over the scope and prevalence of different types of rights, rather than a dialogue on compatibility.


The author thanks the members of the Department of Social and Cultural Anthropology of the VU University Amsterdam, Wilfredo Plata, Ricardo Calla, and the others informants for their valuable comments and information.

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Department of Social and Cultural Anthropology, VU University, Amsterdam


(1) This article is based not on ethnography, but on press articles and some interviews. It was not possible to visit Sank'ajahuira at the time because feelings were still running high. Besides, the aim of this article is not first and foremost to provide an ethnographic account, but to reconstruct the ongoing debate in Bolivia. All translations are by the author.

(2) To illustrate political interference in the judiciary, the pre-selection by political parliamentary majorities of candidates for an election to the Constitutional Tribunal, the Magisterial Council, and the Supreme Justice Tribunal has often been mentioned and denounced as a manoeuvre to ensure that all senior magistrates would be MAS people. The selective persecution of local and regional authorities belonging to the opposition (accusing them, in most cases, of corruption) confirms the idea held by many that the judiciary is not impartial. According to the opposition, the politicization of the judiciary is a typical example of foul play by the current government.

(3) A majority of 62% according to the 2001 census. But there is debate on this idea of ethnic majorities and minorities in Bolivia (Toranzo 2008). Zavaleta (2008, 60) stresses the "debatable nature of many of the suppositions that underlie discussion over what is indigenous and what is mestizo in contemporary Bolivia." In Bolivia, 36 indigenous peoples have been identified, many of which live in the eastern lowlands of the country and most of which (with the exception of the Guaranis) are small in number. The largest populations are the Quechuas (30%) and Aymaras (25%), both traditionally living in the western highlands. The Aymaras are renowned for their assertiveness.

(4) Often "nations tend to be dominated by ethnic groups which deny their ethnic identity (instead presenting themselves simply as citizens or humans) and relegate others to minority status or assimilate them" (Eriksen 2001, 51). In Bolivia, this scheme is now in tatters, and the dominant group finds itself no longer in the position of being simply "standard" citizens.

(5) In Revista Legal Lex, 17, May 2008, < defenderemos-el-estado-de-derecho-en-bolivia/>.It should be noted that many Bolivians believe that this legacy of the rule of law never worked well in their country.

(6) Of course, there were lynchings in Bolivia long before the new constitution was approved. However, most commentators point out that this is not to be confused with, or seen as a form of community justice. The practice takes place in poor city neighbourhoods more often than in the countryside and, further, it simply does not follow the rules that should be applied in communal justice. Moreover, as Goldstein (2003, 32) argues, lynchings are not justified so much as rights to practise indigenous traditions, but more as a reaction to "[t]he failure of authorities to prosecute or punish vigilantes [which] has itself been interpreted as an indictment of the police and the formal justice system." Nevertheless, opponents of communal justice use lynchings as examples to show "where all this could lead to."

(7) A friction already alluded to by Canessa (2006a, 195-202) and Calla (1999), when talking about the mismatch between municipal autonomies and the ayllu logics.

(8) Although this article does not have a major theoretical pretension, it is worthwhile to recall here the work of various theorists on the link between the legal and the cultural, or the legal and the production of political action or justifications thereof. Sarat and Kearns (1995, 22) hold that "law shapes society from the inside out, by providing the principal categories that make social life seem natural, normal, cohesive and coherent." Further on, they add that "law occasionally constructs new practices, if not from whole cloth, then from unfamiliar weaves" (27). The law and legal formulations are thus constitutive for society. Without delving further into the issue, it seems important to bear in mind that legal stipulations can, and often do, provide people with "tools" to decide on specific actions and justifications for them.

(9) It might be worthwhile to distinguish three phases: the failed attempt (1982-85) to mitigate through leftist policies the social debt that dictatorship had left behind; the coalition governments (1985-2005), all of which were inspired by neoliberal policies; and the administration attempting to achieve post-neoliberal, inclusive, multi-ethnic democracy (2006-present).

(10) Debatably, those social rights are exactly the sort of outcomes of democracy that the poorer and lower educated sectors of a population value most. In Baviskar and Malone's (2004) terms, they appreciate the "ends" just as much as the "means"; for example, they believe that democracy should bring jobs, decent incomes, and state protection, just as much as "clean" and fair procedures. But as we will see, additional criticisms of the failing democracy in Bolivia also arose.

(11) This is not the place to reconstruct the political events of the 1990s and the first half of the 2000s (see Assies and Salman 2003; Crabtree 2005).

(12) The new constitution acknowledges several forms of "autonomy," both of regional and of ethnic nature. The pending definition of the precise scope of these various autonomies (e.g., departmental vs. municipal vs. indigenous) led in several cases to confusion and debate. Most controversial proves to be the indigenous autonomy, especially in cases where it clashes with national economic-strategic plans of the government. The case of TIPNIS (Territorio Indigena y Parque Nacional Isiboro Secure) national park and indigenous territory (where the government plans to build a road) is the most conspicuous case in point. Autonomy, according to the government, should not be interpreted as the full-fledged right of locals to veto any state intervention. When local interests differ from government plans, the inhabitants of such territories interpret "autonomy" as exactly that: a veto right. In the Sank'ajahuira case, a similar argument was used: statutory justice had no business there, because community justice overruled it.

(13) See for instance the Bolivian vice-president's comments at <http://www.vice Default.aspx>.

(14) There are also, however, many accounts of such social cohesion slowly disintegrating. For a detailed analysis of the intertwinedness of rural and urban worlds (like the one of the Aymara city of El Alto), see Crandon-Malamud (1993, 2009), who focuses on the changes these linkages produce in both the countryside and the city. Here we are mainly concerned with the expectations that the rural population has toward out-migrants.

(15) On the other hand, in concrete legislation the state often proves unsteady about the precise scope of autonomies and the prerogatives to be allocated to ethnic groups or communities.

(16) Originarios in Spanish; perhaps translatable as first-comers.
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Author:Salman, Ton
Publication:Canadian Journal of Latin American and Caribbean Studies
Date:Jul 1, 2011
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