If a man kills another man in the harsh high plains of Jesús de Machaca or the lush lowlands of Beni, the people who catch him might not call the police. Instead they might call a meeting.
Far from courthouses and police stations that may not know their languages, and despite having no jails to lock up criminals, remote villagers in Bolivia have quietly kept justice in their own hands for centuries, handling everything from malicious gossip to murder. They have demanded fines, doled out whippings, even banished people from the pueblo. These community courts have sometimes been criticized for trampling on human rights, especially when it comes to the rights of women, but indigenous leaders say they work better for them than the regular system.
To press a case in the ordinary courts, “you must hire a lawyer and spend money on paperwork,” says Justina Vélez, who represents Pando, the northernmost province of Bolivia, in an organization of female peasants named for the indigenous hero Bartolina Sisa. “All the courthouses are located in the main cities.… The indigenous authorities are right here where we live.”
Vélez and her neighbors were thrilled six years ago when Evo Morales became the first indigenous president of Bolivia. He was so beloved that people often refer to him simply as Brother Evo. He swore to restore and protect indigenous rights. The new constitution that he championed said “indigenous justice” would be equal to the ordinary courts, a parallel system with the same force.
Then a new law was passed in December 2010. “It’s a major setback,” says Miriam Campos, a lawyer who has worked with indigenous pueblos for more than a decade. “It only leaves them little things.… It’s unconstitutional.”
The government pared back the powers of Indigenous Peoples in this sweeping new law. Pueblos can legally handle petty crimes and land disputes—and little else. For example, they are now banned from judging and punishing rapists, murderers or drug traffickers.
This was a stunning about-face for pueblos such as Jesús de Machaca, which has been hammering out its own constitution to gain autonomy from the state. For months, men in ponchos and women with braids have met in a chilly conference room and chewed coca leaves through lengthy meetings, trying to put their rules to paper. Jesús de Machaca is one of 12 indigenous municipalities that voted for autonomy two years ago. Autonomy affords a pueblo the chance to gain more control over how it uses state money and renewable natural resources on their land.
Gaining independence would also give pueblos the official right to try their own cases, something that has been done unofficially for centuries anyway, says Santiago Onofre, who is leading the autonomy movement. But in the shadow of the new law, they are unsure what will happen if, for example, they try someone for manslaughter.
Under Morales, Bolivia has declared itself a “plurinational” state. It pledged to honor the rights of dozens of diverse groups—nations—with their own ways of life.
But the government has battled over just how far those rights extend. When Morales lobbied for a highway to cut through a pristine forest last year, Native people protested, arguing that the constitution said they should be consulted. Morales argued that “consultation” didn’t mean they could veto the road, merely that they would get to weigh in. Protesters derided his idea of “consulting” as a farce.
Facing massive protests that spread far beyond tree-huggers, Morales caved and declared the forest untouchable. But the bigger question was never settled: Could pueblos actually nix the highway or not? What kind of power do people like Onofre and his neighbors have?
The battle over indigenous justice has been much quieter than the highway fracas and other disputes that have challenged Morales over the past year. The new law was passed in the middle of a political firestorm over skyrocketing prices for fuel and food, one that drowned out all other debates. But it poses the same burning questions for Bolivia: Will the country give real power to pueblos like Jesús de Machaca? Or is the constitution just a bit of leftist lip service, a piece of paper with no real impact?
Morales has faced increasing skepticism since the highway dispute, which pitted a chance to develop the country—one of the poorest in the Americas—against Mother Earth and the wishes of Native people. What happens with the justice system is another test of whether Brother Evo will live up to his promises to empower the pueblos. Critics argue the law that curbs the powers of indigenous justice will have to be shredded once Bolivia checks whether it jibes with the constitution. They anticipate that Bolivia will put the question to a new tribunal.
“The law is colonial,” says Raúl Prada, a sociologist who helped craft the Bolivian constitution. He has
grown increasingly critical of Morales. And he isn’t very impressed with the added powers that the indigenous community courts do have, such as stopping disgruntled people from appealing verdicts against them in indigenous courts to the ordinary system.
There is also a looming practical problem. If the pueblos cannot handle murder or rape cases themselves, that means the ordinary courts must take them. But Bolivian justice has never reached that far. Courts are distant and slow. If Bolivia doesn’t step it up, the risk is that no justice will be served at all.
“It could be a way of the government just washing its hands” of the responsibility to serve justice in indigenous communities, said Rodrigo Gazahui, a Cochabamba researcher who assisted with UNICEF research on judicial pluralism.
Not everyone is peeved about Morales’s new law and its limits. Vélez says the law makes it clear where the pueblos stand when it comes to crime and jurisdiction. If a drug dealer comes to her pueblo in Pando and kills someone, Vélez says, it makes sense that he should be taken to a police station, because they have forensic investigators; the pueblos do not.
Clamping down on indigenous justice also reassures urbanites who worry about human rights violations in indigenous courts, recounting horror stories of whippings and wrongdoers being lashed to a palo santo tree infested with biting ants. Sexism in Native justice systems is also a common concern. Gazahui tells the story of a widow who was cast out of her community because she, as a woman, had no right to demand any land. Other stories are even uglier. “What worries me is that in some communities, when a little girl is raped, they make her marry the man,” says Victoria Mamani, part of the La Paz-based feminist group Mujeres Creando. “When problems are serious, I think they should go straight to the ordinary system.”
Bolivian newspapers have sometimes wrongly conflated indigenous justice with mob violence, a persistent problem for the country. Lynchings in Bolivia tend to happen on the fringes of cities or small towns where people do not trust that the police will come through–not in the tight and distant communities that handle their own justice. In the chaotic sprawl of El Alto outside of La Paz, citizens hang bloated dummies from telephone poles to scare would-be-thieves, a constant reminder that neighbors are willing to take justice into their own hands. In one notorious case, four policemen were lynched in Potosí by a group that claimed they were extorting money from local people to overlook the illegal smuggling of Chilean cars through the region.
But the reality of lynching has made the idea of empowering communities to take justice into their own hands a disturbing idea for some Bolivians, especially since lynch mobs have sometimes justified their actions by claiming to carry out “community justice.”
Activists say the solution to sexism and human rights violations is not to clamp down on the power of indigenous people. Campos argues that the pueblos can reform from within. While scholars sometimes give broad-brush depictions of indigenous justice, practices differ from place to place and pueblo to pueblo. And they have shifted over time, adjusting to new ideas and realities.
The Guaraní people, for instance, have abandoned the practice of putting people in stocks, Campos says. She adds that the Constitution also says all justice systems must hew to human rights. It bans the death penalty.
“It’s a false debate to say, ‘Human rights or indigenous justice?’?” says Ramiro Orias, director of Fundació Construir, which aims to strengthen access to the justice system. “We don’t have a mythic vision that Indian justice is better. It has problems. But so do the ordinary courts.”
More than 75 percent of Bolivian detainees have yet to be sentenced because of the backlog of cases, according to a U.S. State Department report published last year, which is why some Bolivians have given up on the ordinary system. In El Alto, Virginia Ticona makes her living reselling candies and cheap plastic toys to high-schoolers. Four years ago she found that her little home had been robbed, leaving her with nothing. But Ticona said she never reported the theft because she had no money. Police sometimes charge for ink and paper to file a report. Trust in the Bolivian justice system is thin, Amnesty International has found.
“There isn’t safety. Not in the street. Not in your own house,” she says softly.
In bustling La Paz, elderly Asunta Quinayata and her neighbors camped outside of the old home they are locked in a legal dispute over, surrounded by handwritten posters filled with allegations from infuriated people. They claim their attorney bilked them of $2,000 to bribe the district attorney in a dispute over the house. The women were angry not that they had to pay a bribe, but that it did not work. “I won’t be afraid of going to jail. It doesn’t matter!” Quinayata wailed. “I just want my money back!”
Such tales make it hard to argue that justice is better served by the ordinary system. But the same problem that spurred pueblos to handle their own crimes in the first place—the fact that the Bolivian government does not reach them—means it is difficult to check if they adhere to human rights. It is extremely difficult for Bolivia to monitor what happens all over the country: The country is so disconnected that forced labor was still happening in the east just a few years ago.
And Gazahui points out that even if Bolivia could monitor whether communities follow human rights rules, it would be tricky to reconcile the laws of the many communities. For instance, in some pueblos children are seen as adults once they turn 12 or 13, Gazahui says. Does it violate the rights of those young people if they marry and have children, but Bolivian law treats them as adolescents until they turn 18?
Bolivia will have to sort out sticky questions like that and many others if it really wants to reconcile community justice and human rights. But some activists believe nothing will actually change. The pueblos will keep quietly handling their own crimes, as they did in the past. Indigenous justice was illegal in its colonial past, but Bolivia often looked the other way, unwilling or unable to step in. Some activists are angry that Morales has curbed their powers on paper—but they don’t think the Bolivian government can actually enforce those rules.
And it isn’t hard to believe that may indeed be the case when you make the lengthy journey from La Paz to pueblos like Jesús de Machaca and realize just how distant all that talk in government halls really is for Onofre and his neighbors—or when you ask people who have quietly managed their own matters for centuries what the law means to them.
“I don’t think this is going to affect us. We decide things for ourselves. We follow our traditions,” says Fanny Juana Huarachi, who leads the municipal council in Curahuara de Carangas, a small town in the west. In the middle of a throbbing rally for Morales, she points to a few people with white ponchos carrying whips. “They are our leaders,” she says.
Emily Alpert reported this story while on a fellowship with the International Reporting Project.