Bolivian Strategies: Empowering Human Rights And Its Citizens

Bolivia has a history of political interference with its justice system, with both the current government of Luis Arce and the former government of Jeanine Áñez pursuing unsubstantiated charges against political opponents. In addition, Bolivia has been criticised for its failure to protect the rights of women and girls, who remain at high risk of gender-based violence. The country has also been scrutinised for its treatment of Indigenous peoples, who face barriers to exercising their right to free, prior, and informed consent regarding measures that may affect them. Furthermore, Bolivia has been accused of restricting freedom of expression and association, with journalists facing threats and harassment. The country has also been criticised for its handling of the COVID-19 pandemic, with thousands of students unable to access online classes due to a lack of devices or internet access.

Bolivia's justice system and the need to reduce political interference

Bolivia's justice system has been plagued by political interference for years. This was the case under the governments of former President Evo Morales (2006-2019), former Interim President Jeanine Áñez (2019-2020), and current President Luis Arce (2020-present).

Political Interference under Evo Morales

During his almost 14 years in office, Morales repeatedly rejected the idea of judicial independence. His administration weakened the independence of the judiciary through a range of reforms and other actions. For instance, the 2009 constitution, enacted under Morales, empowered voters to elect high court judges from lists created by the Plurinational Assembly. Legislators from Morales' party, the Movement toward Socialism (MAS), packed the lists with their supporters. In 2010, all judges appointed before 2009 were deemed "temporary", and scores were summarily removed.

Under Morales, prosecutors filed what appeared to be politically-motivated charges against several of his political rivals.

Political Interference under Jeanine Áñez

After Morales resigned in November 2019, Áñez had an opportunity to ensure judicial independence. However, her government publicly pressured prosecutors and judges to act in its interests, leading to criminal investigations of more than 150 people linked to the Morales government, for sedition, terrorism, or membership in a criminal organization. Many of these cases appeared to be politically motivated.

Political Interference under Luis Arce

After winning the October 2020 presidential election, Arce said the justice system should be independent from politics and established a commission of experts to propose reforms. However, in February 2021, he decreed an amnesty that appeared to be designed to favor his supporters and opened the door to impunity for serious crimes. In March 2021, authorities detained Áñez and two of her former ministers on terrorism and other charges. In August, the attorney general accused Áñez of genocide in connection with two massacres that occurred during her government. Human Rights Watch examined the charging documents and did not find evidence that she had committed terrorist acts or genocide.

In addition, the Arce administration supports unsubstantiated and excessive charges of terrorism and genocide against former President Áñez.

Reducing Political Interference

To reduce political interference in Bolivia's justice system, the country should implement far-reaching changes that prioritize reforms allowing judges and prosecutors to act independently without fear of reprisals. Specifically, prosecutors should drop the terrorism charges against Morales and carry out an independent, thorough analysis of evidence and due process in all cases involving former members of the Morales administration and supporters.

Prison overcrowding and the excessive use of pre-trial detention

Prison overcrowding is a significant issue in Bolivia, with the country's prison system at over 250% of its total capacity. This is the fifth-worst overcrowding situation in Latin America, after Haiti, El Salvador, Guatemala, and Venezuela. The primary cause of this overcrowding is Bolivia's pervasive use of pre-trial detention, which is the second-highest in the region. As of 2015, 69% of prisoners were awaiting trial, and this figure has decreased from 85% in 2012.

The extensive use of incarceration, including pre-trial detention, is driven by the fact that the majority of Bolivians prefer punishment to preventative strategies against crime. According to a 2014 survey, "Bolivians generally see prison as the best way to solve citizen insecurity, with little confidence in policies that prevent crime or encourage prisoner rehabilitation." This perception persists despite Bolivia being one of the least violent countries in the region.

The overuse of pre-trial detention has severe consequences. Firstly, it contributes to the critical levels of overcrowding in Bolivian prisons, which, in turn, has a negative impact on the social rehabilitation of prisoners and violates their fundamental rights, including their rights to health, food, education, work, security, and minimum conditions compatible with human dignity. Secondly, it results in prolonged detention periods, with Bolivian law allowing for up to three years of pre-trial detention, often exceeding this limit in practice. This extended detention can lead to increased overcrowding and further exacerbate the issues mentioned above.

To address prison overcrowding and the excessive use of pre-trial detention, the Bolivian government has implemented several measures. These include legislative reforms such as the 2014 Penal Decongestion Law, which limited the application of pre-trial detention, and amnesty initiatives under President Evo Morales. Additionally, a 2016 penal code reform made preventive detention the exception rather than the rule. However, past penal reforms have only resulted in short-term reductions in the prison population, and negative public opinion has hindered long-term success. Therefore, addressing the underlying perceptions of punitive justice among the Bolivian public is crucial for the effectiveness of any new initiatives.

The need to protect the rights of women and girls

Bolivia has taken several steps to protect the rights of women and girls, but there are still significant challenges. Here are some key points:

• Violence Against Women and Girls: Despite laws criminalizing femicide and domestic violence, women and girls in Bolivia remain at high risk of violence. This includes gender-based violence, sexual violence, and domestic abuse. Bolivia has introduced measures such as the "Children for Equality" campaign to combat gender stereotypes and raise awareness, but more needs to be done to address the root causes of violence and provide effective protection.
• Legal and Judicial System: The Bolivian legal system has been criticized for its failure to adequately address gender-based violence and protect the rights of women and girls. Issues include a lack of enforcement of laws, judicial independence, and corruption. There have been reports of impunity for perpetrators of violence against women, with high rates of cases being closed without action or proper investigation.
• Reproductive Rights and Sexual Health: Bolivia has made some progress in this area, such as allowing abortion in cases of rape, incest, or to protect the life and health of the pregnant woman. However, access to safe and legal abortions remains limited, and there is a lack of understanding among health staff about the requirements for legal abortions. Additionally, reproductive rights organizations have noted the difficulty in accessing reproductive health information and services in rural areas.
• Education and Empowerment: Bolivia has implemented programs to improve access to education for girls, especially in rural areas and for indigenous communities. They have also introduced sexual health education in schools to raise awareness. However, early pregnancy and the resulting dropout rates remain a significant challenge, with 25% of pregnant girls leaving school in 2019.
• Economic Empowerment: Bolivia has made efforts to improve women's access to land and support women-owned businesses. They have also prioritized productive employment and promoted community-based activities with funding for investment. However, there is still a significant gender gap in the formal sector, with only around 40% of women employed compared to 90% of men.
• Human Trafficking: Bolivia has established multidisciplinary teams and launched awareness campaigns to address human trafficking, with a focus on protecting vulnerable groups such as women, girls, and migrants. However, the issue persists, and there are concerns about the effectiveness of the response, including the need for dedicated shelters for trafficking victims.

In conclusion, while Bolivia has taken important steps to protect the rights of women and girls, there are still significant challenges to be addressed. These include reducing violence, improving access to justice and reproductive health services, addressing educational disparities, and promoting economic empowerment. A comprehensive approach that tackles systemic issues and ensures effective implementation of laws and policies is necessary to strengthen the protection of the rights of women and girls in Bolivia.

The rights of Indigenous communities

Bolivia is home to 36 recognized indigenous peoples, including the Aymara, Quechua, Chiquitano, Guaraní, and Moxeño. According to the 2012 National Census, 41% of the Bolivian population over the age of 15 are of Indigenous origin, though this number is likely to have increased to 48% by 2017.

Indigenous peoples in Bolivia have a long history of marginalization and lack of representation. However, the late twentieth century saw a surge of political and social mobilization in Indigenous communities, with movements such as the Katarista movement attempting to pursue an Indigenous political identity through mainstream politics.

• Constitutional Reforms: In 2004, constitutional reforms acknowledged the 'multi-ethnic and multicultural' nature of the republic, recognizing the right of Indigenous peoples to full and effective political participation.
• Election of Evo Morales: In 2005, Evo Morales became the country's first Indigenous president. He attempted to establish a plurinational and postcolonial state to expand the collective rights of the Indigenous community.
• 2009 Constitution: The new Constitution recognized the presence of different communities in Bolivia and granted Indigenous peoples the right to self-governance and autonomy over their ancestral territories.
• Framework Law of Autonomies and Decentralization: This law outlined the legal rules and procedures for Indigenous communities to obtain autonomy. Through these decentralization efforts, Bolivia became the first plurinational state in South America.
• Law against Racism and All Forms of Discrimination: Also known as Law 045, this law criminalizes a range of racist or discriminatory actions, including violent incitement and the dissemination of racist or discriminatory material through the media.
• Consolidation of Collective Property: To date, Indigenous Peoples have consolidated 23 million hectares of collective property under the status of Community Lands of Origin (TCOs), representing 21% of the country's total land mass.
• Self-Governance: Thanks to the Framework Law on Autonomies, several Indigenous Peoples are now forming their own self-governments. 36 Indigenous autonomies have commenced the process, with three already establishing their self-government.
• Protection of Indigenous Lands: Lands collectively held by Indigenous Bolivians are known as Native Community Lands or Tierras Comunitarias de Origen (TCOs). These lands encompass 11 million hectares and include several national parks and protected areas.
• Indigenous and Tribal Peoples Convention: In 1991, Bolivia signed the Indigenous and Tribal Peoples Convention, a major international convention protecting Indigenous rights.
• UN Declaration on the Rights of Indigenous Peoples: In 2007, the Bolivian government passed Law No. 3760, approving the UN Declaration on the Rights of Indigenous Peoples.
• Law of Constitutional Reform: In 1993, the Bolivian government passed this law to recognize Indigenous rights in the country's culture and society.
• Law of Popular Participation: Passed in 1994, this law decentralized political structures, granting municipal and local governments more political autonomy.
• Electoral Law: The 1996 Electoral Law further expanded Indigenous political rights, transitioning the national congress into a hybrid proportional system and increasing the number of Indigenous representatives.

Despite these efforts, Indigenous communities in Bolivia still face challenges. One significant issue is the government's promotion of extractive industries, particularly mining, which has reduced the ability of Indigenous communities to resist extractive activities in their territories. Additionally, Indigenous Peoples are directly impacted by seismic work in search of new oil and gas reserves, as well as hydroelectric projects.

The need to improve the independence of the judiciary

Political Interference and Lack of Independence

Bolivia's judiciary has long been susceptible to political influence, with both the executive and legislative branches exerting undue influence over judicial decisions. This has led to a situation where the judiciary is not truly independent and impartial, as required by the country's constitution and international standards.

Temporary Judges and Prosecutors

A significant number of judges and prosecutors in Bolivia are "temporary," which means they do not have the security of tenure guaranteed by international principles of judicial independence. This situation heightens the risk that these legal professionals will issue decisions to please the authorities in order to maintain their positions.

Inadequate Resources

The Bolivian judiciary also faces significant resource constraints, with insufficient funding allocated to enable judges to fulfill their duties effectively. This lack of resources hinders the development of strong judicial institutions and makes it difficult to attract and retain qualified professionals.

Delayed Judicial Elections

The delayed election process for Bolivia's highest judicial authorities has further undermined the independence of the judiciary. The absence of political agreements has led to the expiry of the terms of judges in several key tribunals and the Council of the Judiciary, without new elections taking place.

Recommendations for Improvement

To improve the independence of the judiciary, Bolivia should:

• Implement the recommendations of United Nations Special Rapporteurs on the independence of judges and lawyers.
• Secure sufficient financial resources for judges to fulfill their duties, including adequate salaries and funding for court personnel and infrastructure.
• Implement a transparent and merit-based process for appointing judges to fixed-term positions, reducing the number of temporary appointments.
• Ensure that the judicial selection procedure is based on objective criteria and is independent of the executive and legislative branches.
• Establish an independent and impartial body to oversee discipline and removal procedures for judges, with clear grounds for removal that exclude disagreement with rulings.
• Involve civil society and legal experts in developing and implementing reforms to increase transparency and credibility.

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