Improving Property Rights Protection

From MicroJustice

Chapter 1 1.1 Problem statement.

1.2 Target of this research.

1.3 Introduction on the work of Microjustice. 1.3.1 Microjustice-BOP Lab Master Thesis Project.

1.4 Research Questions. 1.4.1 Glossary.

Chapter 2 Theoretical framework. 2.1 Introduction.

2.2 The importance of land right protection. 2.2.1 Economical importance. 2.2.2 Conflict avoiding importance. 2.2.3 Emotional importance.

2.3 Land rights protection systems and frequently made mistakes. 2.3.0 Introduction. 2.3.1 Legislation and government structures. 2.3.2 Borders and registrations. 2.3.3 Effective dispute resolution.

Chapter 3 Land rights in the province of La Paz.

3.0 Introduction and a brief history of Bolivian land rights. 3.1 Legislation and government structures in La Paz. 3.2 Borders and registrations in Bolivia. 3.3 Effective dispute resolution in Bolivia. 3.4 Information about the used sources.

Chapter 4 A Comparison between the basis of a proper land rights protection system and the situation in practice in Bolivia

Chapter 1. 1.1: Problem Statement. The right to own property is one of the most important rights a human being can have. Land is one kind of property amongst many others. Nevertheless, land rights are very important property rights. Land rights give people the ability to farm, eat and live or further develop economically. Sadly, having land rights and being able to defend these rights is not always a normal case. It can for someone be very difficult to protect land rights because this person is in a bad position to defend his land against stronger parties. Stronger parties can be the government, big (multinational) organizations, large landholders, organized groups of landholders and persons he or she has agreements with regarding the property (land) he uses. In the Netherlands we seem to have dealt with this problem because of a functional legal system. This seems naturally, but the difficulty to defend your own property under which land rights in certain areas in the world (under which Bolivia) can exist because of several reasons. A fair outcome of a conflict regarding land usage in a country such as Bolivia could be withheld from someone because of a corrupt system, a land registration system that is faulty or a judicial process that is too expensive and therefore inaccessible for a lot of Bolivians. Next to this it is important to evaluate the role that powerful persons in a village or region might (or might not) possess (village elders, chiefs, government officials). These persons might operate under the radar of any official system. These might probably be some of the reasons why there is a problem regarding the protection of property in Bolivia. If the problems that lead to a breach in the protection of property in Bolivia need to be solved, it is important to take away or avoid the reasons that can lead to this unfair outcome of conflicts regarding property.

1.2: Target of this research. One of the goals of this research is to gain insight into the situation with regard to land rights in rural areas in the La Paz department in Bolivia. This research should make clear who the users (and owners) of the land are, how they make this clear to others, what sort of problems they face regarding their interest in land and what their legal position might be in case of conflict. In the end this research should primarily give answers to questions such as: are farmers only exploiting the land or also owning it? Can they sell the land themselves? A clear view of the situation with regard to land rights around the city La Paz should be obtained. Furthermore it is important to know what sort of conflicts exist and how these conflicts regarding the possession of land are being solved at this moment. It is unclear right now what the (official and unofficial) judicial procedures are like. The situation with regard to the Bolivian land rights will be compared to the basic requirements of a fully functional land rights protection system which is therefore complete and efficient in its working.

The ultimate goal of this master thesis would be to define ways by which Bolivian farmers are being more able to defend their interest in land. Looking at this goal, this research concentrates on creating ideas for simplifying or altering the procedures the Bolivians use by removing barriers they might face. Barriers could be an inability to pay for a lawyer, the inability to go to a court, the role of powerful persons who would dislike a judicial procedure, or the length of official judicial procedures. Next to these questions this research can contribute to the Microjustice organization in Bolivia by mapping out the situation with regard to land rights in rural areas around La Paz . The Microjustice organization can contribute to this research by sharing information about legal procedures in the vicinity of La Paz regarding property of land, or give help by sharing information about persons who have this knowledge. With this knowledge it might be possible to define a way by which Microjustice can improve the access to justice of the Bolivians (at least in the La Paz department) by promoting or incorporating the conclusions in this research. The research will be executed by using the Base of the Pyramid strategy. Therefore it is important to start thinking from the perspective of the Bolivian. Next to this, research questions cannot be too concrete because a situation might be entirely different than expected.

1.3: Introduction on the work of the Microjustice Initiative. Microjustice is an organization that promotes the accessibility of justice for the poor . Better access to justice can help these people to escape poverty. In Bolivia, a pilot program was launched. Many people since have been helped by Microjustice in the registration of personal information such as family names. The Microjustice initiative is preparing to also help people on the terrain of property protection and identity issues in the future.

1.3.1: Microjustice-BOP Lab Master Thesis Project. The Microjustice-BOP Lab Master Thesis Project is a project that support the Microjustice initiative in developing products, which on their turn can help improve the access to justice of the poor . The Microjustice-BOP Lab Master Thesis Project consists of a number of students that are willing to write their master thesis together and help each other. This research of land rights protection can be valuable for Microjustice, because it will be more clear to the Microjustice Bolivia organization what the needs of the people will be around La Paz. On the other hand, Microjustice can support this research by sharing connections with useful sources around La Paz.

1.4: Research Questions. The goal of the research in La Paz and the preceding research in literature should lead to the answering of two very important questions: - How is the current situation with regard to the security of land rights in the province of La Paz? - How can Microjustice help in improving the protection of land rights of weak farmers around La Paz?

1.4.1: Glossary In this paper, the following terms should be read as such:

Bolivians: inhabitants of Bolivia, living in the rural area northwestern of La Paz. They are poor or weak in protecting their land rights and they depend (economically) on the use of land in this region. La Paz Department Procedure: the rules by which a conflict has to be solved. This procedure can be informal (have a talk with the neighbor, or a big fight) and formal (go to court). Problem solving by one of the village elders is probably a grey area between those two sorts of procedures. Interest in land: when there is dependency of a stretch of land there is interest in it too. When a house if built on the land, there is interest, but also when there is stock walking around on it.

Barriers: those things that withhold Bolivians to be able to get a procedure that is righteous to them. Property: IS LAND TITLE REGISTRATION SOUTH AFICA Rights: These are the relations that people can have with a physical or non-physical object

Chapter 2. Theoretical Framework.

2.1: Introduction. In the previous chapter a short introduction was written about the possible problems with regard to the protection of land rights around La Paz. The next paragraph will show why property rights (under which land rights) are so important to humans. Next to this it is important to understand the most basic needs regarding the creation of a system that allows the protection of land rights and the problems that can occur when trying to create and maintain this system. Also present in this chapter are the lessons learned by Non Governmental Organisations who have been active on the terrain of land rights. The current situation of land rights on the district of La Paz (chapter 3) will be compared to the basic needs that are laid down in this chapter (chapter 4).

2.2: The importance of land rights protection. Introduction. Having the right to own and to actually have access to property is embedded in numerous declarations and international law . The right to own property and to not be deprived of it is considered to be a fundamental human right. The right to have access to land can be seen as part of the right to property. The fact that this right is considered to be a human right lies within different reasons. Access to property and the right to own property and having the means to defend property is important in at least three different ways. They will be briefly discussed below.

2.2.1: Economical importance. Firstly, and probably most relevant to the world that the western part of the world lives in today is the economical value of property. “Secure property rights facilitate economic transactions, ensure efficient and sustainable resource use, allow for the evolution of effective credit markets, improve business climate and investment opportunities, and ensure economic accountability and transparency” . This sounds logical, because property (for instance a house in the Western world) is often the basis for a mortgage so that new businesses can be created and profits can be made. An upward spiral situation then takes shape where profits can be invested in more property and where newly acquainted property can serve the same purposes . Personally I think that there might be a risk that Bolivians do not want to take a mortgage when they have secure property rights. The argument that secure property will lead to the availability of mortgages does not mean that Bolivians will actually use this possibility and therefore develop economically. But at least the chance on the possibility of getting a mortgage will be bigger.

2.2.2: Conflict avoiding importance. Secondly, adequate property protection can allow things that do not need changing to stay the way they are. Property rights and access to these rights can therefore prevent conflicts regarding usurpation or plain theft of property. When stronger parties know the value of property there will be a big risk of conflict if the weaker parties are unable to protect their own property by legal or other means. This subject will be addressed later, but land can be of symbolic importance to someone. Especially in this situation the ‘victim’ is less likely to move his assets to a different stretch of land because of his principles, there will be a large risk of conflict. Usurpation of ground used for agriculture in small communities might be stopped when the victims of these actions have the means to legally protect that what should be regarded as their property. Law and rule enforcement should afterwards serve the weak to minimize differences in power. A good system for property protection can therefore give peace and stability to a region where the use of land is important .

2.2.3: Emotional importance. Finally, the right to property itself is very important because property can contain emotional value to someone. A house or a farm for example, in which generations of the same family have lived can carry this emotional value. Getting deprived of this property might barely be a loss of economic capital but it can do a lot of emotional damage. In some regions around, the effects of colonisation on still existing indigenous groups might still be present. A feeling of anger and injustice that sacred land or land owned by a tribe for hundreds of years is lost might still be present. We will later see that this emotional or historical value can be a big catalyst for violence .

2.3: Land rights protection and frequently made mistakes.

2.3.0: Introduction. There is no way to determine a land rights protection system that can be imported into every legal system all over the world. Countries, cultures and people are by itself so diverse that each legal system needs its own additions. For example: The distance alone between communities and province capitals in Bolivia create a complete new challenge to a legal system when these are compared to the distances you can travel in the Netherlands. Next to this example there may be tribes who choose to live by their own rules which function perfectly, until their is a conflict about property with someone not belonging to this tribe, not respecting the tribes’ rules. A number of crucial elements can be discovered in each good functioning legal property system however. Maybe better said, is that a number of crucial mistakes are often made in dysfunctioning property systems . It will all be summed up in the next section of this paragraph. Since the right to own property and the access to land is worldwide regarded as very important, -but disrespected by a handful of powerful players in a big part of the world- , there have also been different Non Governmental Organizations (NGO’s) active on this terrain. A brief look at the lessons learned from these projects might give valuable information on how to approach problems regarding property and land rights protection, and what not to do. These lessons will also be integrated in the next paragraphs.

2.3.1: Legislation and Government structure. It seems very obvious that there has to be one set of nationally applied rules about how to deal with disputes regarding property. These rules will also have to be enforced by courts or other dispute solvers which all use the same processes. Economic stability and growth depend directly on effective administration of clear and transparent land laws. This might look like stating the obvious, but with numerous tribes and incredible distances in one country (read: more than one legal system) it poses an enormous challenge. Rules can be made by a government. Rules can be executed by a government. But rules are useless when the daily practices of farmers in disputes are not in line with the official rules and procedures. The primary principle is that law should reflect and respond to social reality rather than impose new structures . Therefore, rules only work properly when they are accepted, well known and then generally applied. They will be accepted and generally applied if they for fill in the need that the subjects of the rules have, if they are in line with their expectations of good and fair rules. Therefore, it would be better to form a judicial system, based on the system that is used (this might be unwritten) by the biggest part of the population for example. Importing western rules into Bolivia is most probably useless. Cultures, traditions and norms are so different that Bolivians will not accept these different norms. It is clear that the government has a vital role in improving the property system in its country. Therefore the government has the power to make changes in rule settings and in executing (enforcing) these rules. When this power is used in a fair way there is no problem, but misuse of government power can make a system that flourishes corrupt. This might prove to be dangerous to the weak in a very short period. Especially in a country that is so vast as Bolivia, there might be only little control of government officials at the lower levels of the government. Who will check whether they execute their jobs without taking gifts from civilians to see something through the fingers or strictly enforcing the rules when dealing with a certain individual? A strict system of checks and balances from the top to the bottom of the government will have to exist. Next to this a check on the higher levels of government could be done by an independent office, such as a supreme court. To prevent the misuse of state power, this power is often divided over a number of different government branches. In these systems, a division can be seen between the legislative, executive and judicial powers. In some systems, the division between the legislative and the executive power is in practice hard to see (in the Netherlands for instance: the cabinet depends on the parliament). Other countries try to keep the division between the legislative and executive power bigger (for instance: the United States senate and the president of the United States). A division between the judicial and the other powers is however in most systems very strict. Independence of the judicial system as a whole from the government is in most democratic states seen as very important. If the legislative or executive power would have direct influence on the judicial system, the judicial system might get corrupted or loose its neutrality in a short period of time. Constitutional courts, high councils and special prosecutors for government crimes can be appointed to avoid the misuse of government power. Political accountability is a strong deterrent for government crimes. A lack in accountability of government officials can result in misuse of power between the governments and the citizens An office of the Ombudsman could also be created in systems where an extra check on government actions (and accountability for those actions) is wished for. The Ombudsman can check compliance of the government with human rights, and investigate after a complaint or on own initiative. The Ombudsman is often the person that can function as an ‘antenna of society’. A close relationship between NGO’s and the Ombudsman can help in improving the effectiveness of work done by the NGO’s in a certain country .

2.3.2: Borders and Registrations The government has to be willing to be very effective in forming a registration system of some kind and executing it. They should process who owns what property in a transparent way, so that everyone can verify whether a stretch of land is already owned or used by somebody else. A system (registry system) in which is laid down who owns what is regarded as crucial. In the Netherlands we use a cadastre to register the property of ground, houses, airplanes and many other properties. The Dutch system is very transparent, and it does not take a lot of time to find out who the owner is (if there is an owner) of a certain object. This transparency is important as well. This way, the system becomes more effective and opportunities for gathering or selling land will increase. Information campaigns for the people in combination with legal advice might also help in empowering the weak to protect their land rights, because they might think they have a weak legal position when this is not true at all. Next to this, increased transparency about legislation can avoid disputes, because it can be better known what the legal positions are of the different parties.

Transparency Transparency can never do harm in a healthy system. Transparency is important in the entire land rights protection system. The Microjustice organisation regards transparency as one of the most functional ways in order to improve the justice system in total . But also on the terrain of land rights with regard to registrations it can be very important. Modern technologies such as computers in combination with a GPS system can help with creating a transparent, fully functional registration system while other registration systems are often labor intensive. Next to this, computers that could be stationed in public buildings with all available information about the registration of the land in the region can provide even more transparency .

Functional system In paragraph 2.3.2 we have already seen that there has to be a clear system in which can be written down what property belongs to whom, and that the more transparent the system will be, the more functional it will be. Different projects started by NGO’s have in recent history focused on registering land on different scales where there was not a functional registry yet. These projects were very promising in the beginning, but research a few year later showed that these new registers were not being held up to date so they would become less useful as time would go by. A lesson learned from this was that the registers would have to be made, land would have to be measured. But most importantly, that these actions would have to be continued from that moment. People should actually start to use and update the system for land registration, which in this case, was not fully functional.

The most common arguments in favour of land registrations are the following : • Land use will be more sufficient, because investments will be made quicker due to a better long term prospect bringing along less risks. • With the help of a land registration system, a market will develop and larger land holding companies will develop which will lead to more efficient production. • As stated before, land can serve for the acquaintance of a loan. • Taxes can be raised when a fully functional registration system is built.

Registering villages as a whole Decades long, projects regarding land registration often had as a goal to eradicate the customary tenure systems and completely replace them with modern land tenure system based on western norms. This modern land tenure system has as cornerstone the titling and registration of property. It was claimed that this system, (and only this system) could create the secure property rights that were definitely needed for more investments in land . The registering of land can obviously take place on different levels. Individuals for instance can register their own land, or at least the land which they use. But small village communities could also register their land as a whole, so their own system of land sharing can remain to be the same. These ideas are new , but it can help in respecting the lifestyles of thousands of villagers in small autonomic communities. They will be registered as a village, integrating them in the entire society but respecting internal rules will still be possible.

(legally) Recognizing the tenure systems As we have seen above, a lot of land is not owned but tenured or they are other rights to a stretch of land of different individuals. The real ownership can rest with one person, a family or a tribe. The land is divided using internal rules and it is used by a lot of different farmers. This system of dividing the ownership exists because this is a socially accepted system (as far as it is not slavery etc…). Incorporating and recognizing this system of customary land tenure might prove to be very useful in registering land. A centralized approach to ownership and land registration will not work in a customary system that has evolved over long periods of time in response to location-specific conditions . Moreover, in some cases for the indigenous groups, small farmers and herders in a family or tribe protection of property of the group in total might prove to be more effective. Rules of the group have been working for decennia, so there seems to be no further reason for improved property protection within the group. Registering is only needed at group level (which makes the registering process much easier) as long as the group as a whole is recognized and its property is registered and the group as a whole can defend itself against outsiders.

Land reforms In Latin-America and all around the world there have been land reforms in the past . In land reforms, large landholders (or the state) are often expropriated of their land. This land is then divided amongst many others, mainly poor original (indigenous) inhabitants of the certain region where the land is. The most important lesson learned from land reforms in Latin-America was that the land reforms were there on a large scale, but that the means for the beneficiaries of the land reform have never been there. They could not compete in trading with the stronger parties not effected by the land reforms in other parts of the country. Therefore the situation did not get better economically (it became even worse) resulting in a new dependency on large landholders. Also, land reform procedures often take a very long time and are not always completed (due to changed political situations). Property rights are then left insecure which could lead to a counter reform, leaving the beneficiaries even weaker than they were before the initial land reform.

It can be seen as a noble action from state governments to expropriate large landholders for the benefit of local inhabitants who will get their equal share of the property. Although this action might work in some countries, history has also shown us that this is a risky strategy : • (former) Large landholders who are often left uncompensated will seek for conflict. • The division of enterprises and the destruction of these enterprises (farming) will lead to more economic instability. • Bigger companies have often got a higher productivity. Division of land will not always lead to higher incomes and stability. The expropriation strategy might work, when the large landholders are compensated for the losses, and when the new owners of the land can be supported in creating a fully functional economic market by giving grants, credit or technical support. The new owners of the land will also have to be supported in creating the means that are necessary to maintain a stable property protection system (see paragraph two). Most of these measures cost money however, so this might not be a solution for a third world country .

2.3.3: Effective dispute resolution. Avoiding conflicts is something that is often almost impossible, even with a system that uses rules with which everybody can agree on, with a transparent registry system and no corruption. Sooner or later people will get conflicts with each other or with the government, regarding the different rights to land. Having efficient conflict resolution processes is important to ensure that lost production, other economical opportunities and lost stability resulting from land conflicts are eliminated as much as possible .

Dispute resolution for ownership of land and for all rights to land. Not only land owners should be protected by the land rights protection system but also the rights of those who actually use the ground, under a yearly fee for instance (land tenure). Dispute will often not be about the full land ownership but about rights attached to this land. Improving rights of the owners of property might for this reason not be the solution for solving problems with regard to the protection of the right on land of the weak (and these people often need this protection the most). Therefore the right to own property itself should not only be protected, but also the different contracts (or relations of other people with this property) that rely on the property being available. I will now further discuss what we call ‘our property’, and what is the legal status of this property might be. In the Netherlands we normally mean with owning property (in the form of land) that a stretch of land belongs to the owner and this owner can within the law do whatever he likes to do with this land. Usually, among the options there is using the land for agriculture, selling the land and building on the land. It would be logical to think that somebody that is not the owner of the property does not have these rights at all. It would however be too superficial to only make a distinction between owning property or not owning property. There is a number of steps with regard to what you can do with for instance a stretch of land (or any property). When somebody owns the land (if it is your property) he can do the most things with the land. But below the judicial term of 'owning' there are ways to use the land while not being the owner. Directly below the full ownership there are situations where people can access and use property as if he were the owner: selling is not an option, but exploiting the land for agricultural purposes can be one. This type of using property is often called land tenure. As explained above: it is a form of rent. But even under land tenure (with almost all the rights that an owner would have) there can be numerous different relations that someone can have with the real owner of the land. It is even possible that an owner has different contracts with more people regarding the use of only one stretch of land. These persons can use the land, but they will probably have to share certain things with each other, so this does not look like ownership at all.

Full ownership should at least exist of the different rights below with regard to the property in question , .

• The right to possess (having exclusive control). With this right, you have (physical)control over the property, physical or non-physical (controlling a bank account). • Usufruct. This is the right to exploit property such as growing and harvesting crops on a stretch of land. This right is only enjoyable when others do not have the right to manage (third right) the land that you exploit, and when others have a right to income (fourth right) on your stretch of land. • The right to capitalize, this means full control over the question whether you want to sell, buy, modify or destroy the property. • Immunity from expropriation is called the right to security. This right is also important to land tenure stability. • The rights to divisibility and transmissibility: it means that the person with this right has the power to devide or to structure the land. • The prohibition of harmful use. This is not so much a right but more a duty to the tenant. • The absence of term. This means that there will not be full ownership when you have bought a house for the duration of 10 years. It should be infinite.

Off course these rights will be possessed when there is full ownership. But for ownership, not all the rights have to be there. Someone might not change the front of his house, due to historical cultural rules in a certain city. This person is still the owner of the property. The point is, that not only the judicial owners are struck when the legal system fails to protect their property such as their land. People related to this property are perhaps hit even harder when the owner loses his property because they actually use the land for agriculture or to have an income. Next to this the ‘renters’ need to be able to rely on the agreements with the owner of the land, so the renters of property will (in a functional system) have to be judicially able to rely on a contract they have with the owner of the property. Next to this the contracts need to be equitable. A good tenure system is a system that is equitable and where renters can rely on the judicial system, or a system in which there a dispute system is mitigated in.

Factual dispute resolution Any dispute resolution system will only work when the decisions made by courts or whoever decides about it are accepted by the subjects or entities who have a conflict. The users of the dispute resolution system will have to trust the procedure and be confident that a fair outcome will be reached. In this manner, it is not important if this is dispute resolution by a national court or just a customary community deciding by their own rules. It is however important that the procedures, operations and norms are in line with the preferences of the citizens taken over a long period of time. Over a long period of time, because in political sensitive cases (where the population shouts for a certain solution) should be treated as all other cases. Politicians should keep themselves to law making, the judges will decide over the case with the current laws at hand. Other common preferences for the resolution of disputes are that the procedures need to be affordable and timely . When there is no trust from civilians in the (official) dispute resolution at hand it is likely that disputes will be solved in different ways. This can under more differ from powerful persons who will take the freedom to settle disputes or settlement of disputes after violence. This is not good, because a regulated dispute resolution system can make sure that there can be expectations of the legal system. There should be a clear red thread in problems and the solution to these problems. This will also increase transparency with regard to judicial decisions so it will become less necessary to go to a form of court because the solution will be clear in advance.

Disputes can be solved on the traditional way, where a court or person makes an autonomous decision. Arbitration or conflict settlement using negotiations can improve the overall dispute resolution system. More about non-traditional ways of dispute resolution can be found in paragraph 2.4.3.

Dispute resolution outside the courts As earlier said, it is certain that there will be competing claims over land and claims about land right over time. The dispute system will need to be effective. Work by NGO’s and research has shown us, that many types of land disputes are best managed outside the courts. Courts are often limited in their capacity, and they might prove to be inaccessible for the poor . Next to this, communities in Bolivia often have a closed social character and the people in such villages prefer to solve conflicts internally . In an effort to reduce the case congestion in courts calendars, lower court costs, speed up decision making and therefore lower costs and time spend in solving disputes alternative dispute resolution systems have been introduced in some legal systems. Alternative dispute resolution procedures might improve the effectiveness of the entire dispute resolution system . It is only an alternative to the normal dispute resolution that a country has so the normal way for the resolution of disputes should be open. Next to the advantages that alternative dispute resolution systems can bring with regards to time and costs, the quality of dispute settlements can be improved. Alternative dispute resolution is often bound by less procedural rules that a dispute in front of an official court would have. This means that parties can more easily sit around a table and come to an agreement. Next to this, the agreements that can be made can be more diverse than in a court case. It also gives courts the opportunity to improve quality, since there has only to be decided over less cases. In rural areas in general, individuals strongly prefer that conflicts are to be resolved at the local level, with the process facilitated by a senior person with a good knowledge of the issues, the community, and the parties involved in the dispute . Because distances to ‘official’ courts can be long and costly the official procedure will often be avoided. Above all, the local system usually does not require expensive lawyers or court administration costs.

Recognising local alternative dispute systems In closed communities where people use their own tenure system, there is often also an internal dispute resolution system. This internal judicial system is often the alternative for the official, expensive and time consuming, state system (or visa versa). The state should somehow try to integrate this alternative dispute system in the state dispute resolution system. The government has in this case more options on how to deal with these systems. The options will range from a zero toleration policy until full cooperation and integration in the official judicial system. In between, the government can integrate alternate dispute resolution in communities as the possible first step in a judicial procedure. By how much this first step is promoted depends on the governments policy, and the amount of wished autonomy of the communities. The government also has the possibility to create a formal mediation mechanism that is regulated by law and seeks to facilitate processes that do not necessarily reflect local practice but instead, adopts simple techniques utilizing trained mediators and formal agreements . Baring paragraph 2.3.1 in mind this would not be the best alternative, because the new legislation will not reflect to social needs. When social needs are not found in legislation this legislation will be of low quality and it will not be used or interpreted incorrectly. According to this fact and other research it would be best to allow for alternative dispute resolution in communities, recognized by an official law in which a mechanism can be found that incorporates the first step of dispute resolution within a village. This official law should be flexible towards the way the disputes are resolved in the different communities. Real standardisation will only follow when the dispute system in the community has not resolved the problem or has not brought the parties to come to an agreement.

Dispute resolution in rural communities As we have seen in paragraph 2.3.2 it might be very effective to register the land rights of communities as a whole in the bigger national system. The communities can keep using their own registry system, and fewer registrations will have to be made at the national level. But how should the policy be concerning the dispute resolution regarding land rights in these closed communities? Although registering land at a group level might sound as the perfect solution, there are still a few questions that need answering when using this strategy such as to what extend the state should regulate between conflicts of outsiders and the group and what the state should do when there is an internal conflict in the group or when there is clear proof of discrimination within the group. To what extend that the state should have control over internal matters in registered groups seems to be a moral question. Indigenous groups might discriminate woman while amongst the non-indigenous populations feminism is prospering. Leaving the group alone and respecting their values is an option in such a case. Though, with regard to human rights, strictly speaking, an intervention should often take place, undermining the autonomy and the culture of an indigenous group. Also more state regulation could be wished for when the community itself cannot maintain secure land rights for each individual in the community. State interventions should take place on a larger or broader scale when land insecurity remains in the community for some individuals .

Chapter 3: Land rights in the province of La Paz.

3.0 Introduction, and history of Bolivian land rights and politics

Brief History of Bolivian land rights and recent politics. Bolivia has been a Spanish colony, and it achieved its independence from Spain in 1825 . It was liberated by the freedom fighter Simon Bolivar, hence the name on the country. Bolivia is the fifth-biggest country in South America, with estimations of population varying from 8,5 million inhabitants to 10,5 million inhabitants . A sign of administrative disarray. More than fifty percent of the population calls itself indigenous. Relatively, it has the highest number of indigenous persons in South America. Bolivia is also the most cultural separated nation in South America. This has happened due to the fact that Bolivia is separated for geographical reasons and therefore developed different cultures and own identities in the different ‘climates’ of the country, varying from Amazon jungle areas to agricultural plains in the east and the Altiplano on 4000 meters altitude in the west. Bolivia is rated number 117 on the human development index, which is worrying for a country in a continent where economics have been prospering the last years. This index looks at countries at a more wide perspective than only purely economical figures. Peru (87), Paraguay (95), Brazil (70), Chile (40) and Argentina (38), countries that surround Bolivia on the South American continent, score much higher on this human development index. The last years, Bolivia has steadily lost positions on this index .

Before the Bolivian independence was achieved, two sorts of land tenure played the biggest roles with regard to the usage of land. A system existed that was called the latifundia system. A latifundio was a large landed estate. Indians worked on the land, they only had usufruct rights. The wealth that the land gave, was only in the hands of a few. The Indians would sleep in a hacienda, this can still be translated as big house, or big estate. The owners of the haciendas were very rich, and they did not belong two the indigenous (most often they were colonial Spaniards). There was only little real ownership of property, especially where the ground was fertile in the east. Nowadays, the Bolivian population is still Indian by a two-third majority. On rural parts of the country and on the altiplano more than 90 percent is indigenous. The chance of a person being poor dramatically increases when he or she is indigenous. The inequality of wealth between the indigenous and others can be redirected to the colonial period. Next to the colonial effects on land tenure there already existed a land tenure system. This system still plays a role in questions of land tenure in Bolivia and it is called the Ayllu system. In some areas, the latifundia made place for the older Ayllu system again when the Spanish influence declined.

Ayllu system (kan dit niet naar landrechten van het Ayllu system?) Gewoon zeggen dat er later meer informatie volgt over het Ayllu system. The Ayllu system was a system of governing used in the Aymara tribes (or small kingdoms). The Aymara tribes are related to the older Inca population. The biggest part of the population on the altiplano is Aymara, and the Ayllu system of governing can still be found in those areas . Even better, because the system is so old and used by practically all Aymara tribes, it once also rooted in the central governmental system of the Bolivian republic (the vast amount of constitutional changes made the Ayllu system in the government nowadays almost invisible). The Ayllu system has a strong, mostly unwritten, legal system. Aymara villagers will use their own dispute resolution system because they trust this system more than the state system. More about this system will follow later. In paragraph 3.3. Each tribe (consisting of multiple Ayllus) had some leaders, called the jilacatas. When different Ayllu tribes would come together for matters that would overstretch the autonomy of one Ayllu tribe, the Mallkus, elected leaders, would decide on these matters. Each individual Ayllu village was led by camayoj/curaca and a jury of older man who had great influence. Nowadays however, the Ayllu system has shrunk to a (big number) of villages, rooting to the same old system. This old complete system, with kings and a justice system for each kind of dispute ceased to exist. More about the current hierarchy in of the Aymara system will follow in paragraph 3.1.

Since the official independency in 1825, the white, Spanish speaking elite had the economical and political power, suppressing the Aymara and Quechua. The Mestizo, a race formed by Europeans and the indigenous were not suppressed but they also lacked influence in the economical and political system . Over the last centuries, Bolivia has lost territories to Brasil (500.000 km2), Peru (250.000 km2), Paraguay, Argentia and Chile, (together also about 500.000 km2). Compared to the size of the Netherlands which is 50.000 km2, this is an enormous loss. In the middle of the twentieth century, the (Indian-Mestizo) National Revolutionary Movement became a powerful movement because the money that was earned with the tin-mining and the expected profits of oil-mining were not improving welfare anymore in Bolivia since Bolivia has lost the Chaco war against Paraguay between 1932 and 1935. The Mestizo and the Indians held the white elite responsible for this Bolivian loss, and they started the 1952 revolution. A detail is, that Shell oil, the famous Dutch oil company, supported Paraguay in its fight against Bolivia. The latifundia system virtually seized to exist after the NRM seized State power, and expropriated large landholders from the year of the revolution in 1952. The land was redistributed over the Indian communities and the newly won lands were titled and registered (Agrarian reform of 1953). The goal of the NRM was a state with the culture of the Mestizo. The Ayllu system returned in areas where the Spanish once used the latifundia system.

But the new land reforms meant that the Ayllu system was partly left, because the new way of registering and working with land titles meant that the Ayllu system could not efficiently co-exist with the new property system. The Ayllu system still fully exists in areas where there was no latifundia system, because the land reform had no influence there. There were only land reforms that also effected the Ayllu system (with which the NRM had no problems with) where the latifundia system was also present. Areas where the Ayllu system existed and the latifundia system did not, were left alone. The Ayllu system of land tenure therefore still exists throughout big parts of Bolivia. Some haciendas may still be found in Bolivia though, because the land distribution forced by the NRM was not everywhere as successful. Because the new system created by the NRM and the Ayllu system do not work efficiently together, there are still problems regarding the registrations of land.

Other goals of the revolution (decrease discrimination) had no great impact, because these problems of racism were too deeply rooted in the civilization and the NRM simply did not have enough time to make this change in culture happen. The revolutionary government decrees either never reached a big part of the population, or they were not understood because a part of the population was illiterate or they did not understand the language of the government (Spanish) . The NRM revolutionary government fell in 1964, due to internal problems in the NRM, and the growing power of the army and autonomous generals. From 1964 until 1982 the country was rules by military leaders. Since 1982, civilians have lead the Bolivian country after civil violence due to unhappiness with the economical situation forced the army to step down . In 1993 more, similar, land reforms took place in order to address the inequality with which the indigenous had to live in Bolivia since the colonial era. In the last decades, a number of constitutional changes have taken part. In 1994 and 2007 big changes in the constitution have been made regarding land rights. More about these changes can be found in the following paragraphs. Bolivia still exists of a great number of racial groups. According to research as much as thirty-six. This obviously brings along many diverse norms and legal systems in the different groups.

Social political influence on the justice system in Bolivia One of the first things that will strike a foreigner who takes the drive from El Alto -the poor part west of La Paz where the international airfield is- to La Paz itself are the objects written full with political lines in which Bolivians glorify the government or where they show their hate of the government or an individual politician. Bolivia is a country of extremes, and certainly when it comes to political movements. Political parties are very polarized, but that finding is not shocking when we look at the diversity of culture in Bolivia itself. The rich east, where the ground is fertile, big ranches exist and where the earth is rich of natural resources, is right and liberal. The white population has the power in this part of the country. The big (white) ranch owners are organized and they can withstand most threats from outside by using their money in the corrupt system or by using private armies. The poor unfertile highlands of the west are mainly populated by the indigenous (mostly Aymara Indians). Agriculture is mostly on low scale, and so are the profits. Since the start of 2006 Evo Morales is president of Bolivia. He is a left wing politician (leader of the Movimiento Al Socialismo, MAS), and he was a coca farmer, a type of agriculture that his right wing predecessor, Eduardo Rodriguez Veltzé, wanted to call an end to. Eduardo Rodriguez and his administration had close political ties with the United States. Under Evo Morales these political and economical relations with the United States were never cut, but the relation is in bad shape, especially when he found out that the United States had paid generals to sell surface to air missiles to the United States just before, but when it was evident, that Evo Morales would become the president, according to rumours. The underlying reason might be that Evo Morales is different. He is Aymara Indian, and therefore indigenous. Next to this he was a cocalero, a coca farmer. Something the United States wanted to eradicate with the drugs eradication program in the country, which was operative under the administration of Eduardo Rodriguez Veltzé. A stunning fact is that all soldiers stationed in the areas where they would assist in the drug eradication program were stationed in other places, crowding those areas with soldiers. Also, USAID have been told that it is no longer welcome in Bolivia . The president in Bolivia has always been in a difficult situation, that does not exist in the Netherlands for instance, because the military and especially the high generals are often not more loyal to the government than to the person that pays them the most. But because Evo Morales is the president who derives from the weak and poor side of Bolivia, he has to be very cautious with the east, who threaten to separate from the rest of Bolivia. Bolivia does get support from countries who are well known to be enemies of the United States, such a Venezuela and Columbia. The reasons why this political situations plays a role in this research is because politicians and the government policies are used to just support one side of the population. In the Netherlands, the parliament represents the entire Dutch population (article 50, constitutional law). In Bolivia, it seems that the legislator will not hesitate to suppress the opposition and entire races once the legislator has the power to do so. Nowadays, under Evo Morales, the Aymara get empowered, and land registrations and agencies are supporting the Aymara cause in reclaiming their ‘historical’ land rights, creating anger and unrest in the Mestizo and ‘white’ part of Bolivia.

3.1 Legislation and government structures in Bolivia

As said in paragraph 2.3.1, there should be one set of nationally applied rules in a country, in order to be functional. This obvious condition is however not achieved in Bolivia. The primary reason for this failure to meat this legislative goal is the amount of autonomous or diverse racial groups, as discussed above. During field investigations for this research it has already made clear that the Aymaras apply different rules that the national government makes. The Aymara use their own rules for the usage, registration and conflicts with regard to land, which are mostly unwritten. Next to the Aymara tribe, also the Quecha tribe uses its own rules (not to mention the numerous other, smaller, tribes. Together, these cultural groups form a big part of the entire Bolivian population, so it can not be said that Bolivia has one set of national applied rules. The big distances and the feature that a lot of communities and tribes are autonomous make it difficult for the national government to spread and enforce national laws. Next to this, some tribes do not accept the national rules and rather stick to the rules that reflect their values more. A value in an Aymara village is for instance that the ‘owner’ of the land harvests what the community requires him to harvest. This rule is not be found in the national Bolivian legislation.

More information about the Aymara legislation and governing structure can be found late ron in this paragraph.

Another requirement laid down in paragraph 2.3.1. is that there should not be misuse of government power, or this should at least be limited as much as possible. The unfortunate truth in Bolivia however is that Bolivia is characterized by corruption and single sided political decisions, which are often made only in favour of the population group to which the people in power belong to. There is also a major problem with regard to the separation of powers in Bolivia, because there are a lot of vacancies in the highest judicial authorities . On itself, this is only a problem capacity wise (which is already terrible in Bolivia). But it ís a problem, when we take a look at separation of powers as we know it in the West and the way that the Bolivian government deals with this problem. Officially, the highest judges in the country (those of the supreme court, the constitutional tribunal, the attorney general and the ombudsman) are elected by a two-thirds majority of the national congress. From the supreme court on, lower judges are chosen. In recent years, from about 1994, the transparency in this procedure has disappeared. Evo Morales recently made a decree in which he appointed new judges for the Supreme court and other high courts. Having in mind the political course set out by Evo Morales and possible judicial decisions about the constitutionality of his policy this poses a serious threat for Bolivian democracy. With the separation of powers in mind, and the fight against corruption, it should be better that the members of the judicial power are not appointed by the legislative or executive powers as it is arranged in the Bolivian constitution right now. As in the Netherlands, in might be better to use a meritocracy as a use to elect persons in different judicial positions .

From research on the rural areas remote from big cities it has been made clear that there is only little trust in the official judicial procedure. Often it is well known (or it has been found out by someone) who the judge in an upcoming law case will be. For instance: The name of the judge (juez) in a particular Agrarian court that has full agrarian jurisdiction over a certain area can be looked up with ease on official government websites . Therefore it will always be clear which judge will handle a dispute regarding land in a certain area. Parties pay the corrupt judge who will decide in favor of the side that offers the most. Also, political powers are also used to obtain a particular decision. When contacting a judge for an interview regarding processes in Agrarian courts, the judge did want to take part in the interview, but not for less than a price of 1500 Bolivianos, during working hours on a location on the way from home to the court. Although this bit of information cannot lead to any conclusions, there is a striking difference on how Dutch judges would probably (or should) cope with questions like these. Next to this, politicians tend to judge on judicial decisions a lot. When a decision is taken by a judge that is not in line with a politician expectation he will search for publicity and give his negative opinion about the decision. Also in cases that are still pending with great sensitivity for public opinion are often criticized. The judicial power in Bolivia therefore is in practice not independent. The procedure for the appointment of judges is not transparent and through decrees judges have been elected by the executive power directly. Therefore the judicial power will often defend political (constitutional) choices.

Conclusive it can be said that the Bolivian legislation lacks in functionality due to the fact that it is not used in big parts of the country. Diversity in cultures and distances are the mean elements for this problem. There is a lack of control on the Bolivian government, and the powers that the government possesses are not balanced. The judiciary power is since the election of high judges by the president very dependent and this dependent and the politics can be felt throughout the entire judicial system. (more will follow in chapter 3.3.)

The Aymara governing system is a system that is different to the governing system that the republic of Bolivia has or any Western country. Though is would be wrong to claim that the Aymara system of governing (and justice) is completely different from Western systems. Like other systems (as well as the Dutch system) the government power is divided over multiple institutions and besides this, the power of each institution is limited. Each institution in the Aymara government system has specific competences, and the persons behind the institutions can only act in line with the tasks of these institutions . The Aymara system of government is also structured in such a way that the authorities (normal villagers to whom the institutional power in trusted) are organised in a hierarchical way. Information retrieved during interviews with Aymara villagers in different villages has shown that these hierarchical governing systems are not always consisting of the same institutions. A minister of fishing will be obsolete on the Altiplano, but this institution is however present in villages around Lago Titicaca. The variation of functions in the Aymara governing system is therefore directly related to the fact that most villages are different because of geographical placement and/or contact with other villages or cultures. Most Aymara villages use different names for their authorities and their function, and this made it difficult to find the red thread in Aymara governing. The fact that these functions are called different has to do with the influence of the Spaniards. Some authorities have namely used the Spanish titling ever since their village came under Spanish influence. In other villages, suggested names for villages of the Spanish trade union were adopted. Some villages remained or restored the original Aymara names after the Spanish domination . Baring in mind the differences between different villages, this scheme can be seen as the basic build-up of village governing. (here will be a drawed picture) For the time being a numeric scheme will be present)

1. Highest authority in the (typical) Aymara village is the General Assembly (in Spanish: Asamblea General and in traditional Aymara: Tanta chawe). The Aymara General Assembly consists of all the villagers, except children and the mentally ill. The Tanta chawe is held every Sunday in some Aymara villages, to discuss the actions of the Mallku in the past week. In some villages the General Assembly only comes together when the individual authorities of the village cannot make a decision, or when serious crimes are committed, like murders or big thefts and anything in between . Also there will be decided by vote (referendum) over situations that are very important to the community.

2. The most important (individual) authority after the General Assembly is the Secretary General ( in Aymara: the Mallku). Of all the Authorities, this man (woman cannot be chosen as authority) is the highest in rank. Border conflicts and conflicts about (land) mortgages are his exclusive domain. Later on in this paper it will be clear why these border conflicts are important to the Aymaras and why there are a lot of border conflicts.

Optional in some bigger communities (like the one on Isla del Sol) is the Secretario Relación, or Alcalde Comunal (Vice president in English, in Aymara: Sullka Mallku). This person, ranked just below the Mallku can be seen as the vice president. When the Mallku is out of the village, he can act in name of the Mallku when the attention of the Mallku is actually required.

On the same hierarchical level as the Alcalde Comunal are the Secretario de Actas (Secretary, in Aymara: Acta Q’ellq’iré).

Still as powerful but assigned with a different task is the Jilanqu, in English speaking countries known as Secretary of Justice (in some Aymara villages called Kamachinac Cheqnachiré). Although this authority does not have a full mandate (severe crimes are dealt with by the Mallku) he is important to the Aymara population. He will solve minor crimes or rule breaking like fights, insulting and mistreatments. He also plays a role with regard to the official Bolivian justice system.

Ranked below the Jilanqu is the Qhawasiri, or in Aymara the Uraq’e Apnaq’eré. This Secretary of Agriculture decides over all matters regarding agriculture. More about the Aymara land use which is dominated by the decisions of the Qhawasire can be found in the next paragraph. This man has two aids to his disposal. The primary Vocal (campo Jilire) and the secondary Vocal (campo Sullka) protect the land used for harvesting against the animals, such as lama’s or sheep. When they find an animal on land used for food, they will remove the animals from the land and they will fine the owner of the animals.

Another difference between the different communities lies within the role of the Corregidor. This is the lowest ranked authority in the Aymara system and he attends remaining, minor matters. These matters can be the finances of the village (which often is not much, since most villages are almost autonomous and trade with other villages happens only on low scale), the roads (or footpaths (in most villages there are no cars), and sport events. Again, in the bigger communities these roles are divided over more authorities.

3.2 Borders and registrations in Bolivia As we have seen in paragraph 2.3, a number of elements should be present in a functional system of land rights protection. One of these elements is a property registration system. In this paragraph it will be made clear how land rights are divided and registered in the province of La Paz (La Paz department).

Official rules Official property registration is also a big problem in Bolivia. The biggest part of the land has never been registered. In October 1996 a land reform law passed in Bolivia . It was under heavy vocal fire from the opposition (existing of small farmers, cocaleras, labour organisations and big ranch owners, a coalition that was representing a wide arrange of farmers or farming companies in Bolivia) while the Minister of defence declared that he would not hesitate to ensure compliance with the law by using military forces. More riots and fights between government and big organised farmers followed. The president at that time, Sanchez de Lozada, said at that time: “lack of vision by the business class is crazy, I am convinced that this law defends the peace in Bolivia. Armed campesino leaders under the direction of 'Comandante Evo' (Evo Morales, leader of the organized coca growers) or 'Huracan' Ramirez (Edgar Ramirez, COB leader) do not point the way for a bright future for the country“ . With the law that was enforced eventually, a program was started which should expropriate large landholders, redistribute these lands over the small farmers or farmers who had no land at all and to give the land back to the indigenous who once farmed on the lands that were taken from them. Small farmers who formerly owned the land but were not able to sell it would have full rights including the ability of selling. One might say that this is good and that it would strengthen the judicial position of the farmers, but they were afraid that from the passing of the new law, they would be forced by the big enterprises to sell the land on which they have always made a living . The problem regarding the division of land in entire Bolivia is enormous. While only 2.78 percent of the total Bolivian territory can be used for agriculture , 87 percent of this land is in the hands of 7 percent of land owners . The new rights to land had to be registered and the redistribution of land would have to be done. After four years of negotiations and violence the INRA was created . The INRA, the state agency (Institute for Agrarian reforms) for property registrations turned out to be bureaucratic, ineffective and corrupt . When a registration needs to be made using this agency, the registration takes shorter or longer, depending on the money that is transferred under the table. This way, registrations for the poor will never take place, because they have not got the money to finish the corrupt bureaucratic process of registering. The INRA did not meet its goal (the governments intention) to register all the Bolivian lands ten years after the law passed. In 2006 only 13 percent was registered. And this is only the land of which the existence and suitability for agriculture is known. Protests against the INRA still continue to be here, although the political regime shifted from ‘right’ to ‘left’. More recently, unhappiness with the state agency was shown on Friday the 12th of September 2008, when the INRA office in Santa Cruz was attacked by an angry mob that was present because the people in that rich region want more autonomy. The entrance was destroyed and most land and property registrations were burned. The large landholders were accused of supporting the general unrest in the regions because they would benefit when the INRA would stop to attempt to expropriate them . In the last years, more and more plots have been registered in Bolivia . A strict necessity for land registrations however is an identity card or a document that will officially prove ones identity. For Aymara villages, being autonomous and only rarely coming into contact with big cities in Bolivia, this proved to be a problem because the registration of persons is very bad in Bolivia. Research showed that this was one of the main reasons why indigenous groups such as the Aymara tribe could not benefit from the land registration program that was to be conducted by the INRA . Developed areas in which the identity registrations were better would therefore probably benefit more from the work done by the INRA, which created even a bigger gap between the people in Bolivia.

Borders in the Ayllu system Because the Ayllu tenure system created non-contiguous patches of land, there are a lot of borders to define. The families in the Ayllu system in Bolivia often use rocks to show others how big their land is . On steep hills, walls of only rocks will not stand. Here a row of rocks of a created path will be sufficient, showing that the boundaries do not serve as physical boundary as we often see in the Netherlands with barbwire, or high fencing. Photo, climbing Muela del Diablo en Isla Del sol, Puerto Perez. Higher rock walls or a row of plants with sharp thorns are sometimes to be found, but primarily against animal invasions, who harm the crops which can be life threatening for the families depending on those crops. In the recent history however, in more capital areas, cement walls are more often built. This is because on the countryside, farmers look at the city for which numerous farmers leave, and see concrete walls as objects of prestige. Next to this, NGO’s who promoted clear and transparent borders and property registration supported the farmers in building fences. Photo, climbing muela del Diablo.

With regard to land use, the Ayllu system was a system that divided the available land over its members (of the Ayllu). More land and securities over land could be received when non-relatives joined the family. The family based division of land made that the land of one particular Ayllu was all split up, the Ayllu could have twenty stretches of land, neither of them connected to each other. What patches of land belonged to whom was divided on the ground of family relations and situations. Property was therefore not divided on geometric divisions with borders that belonged to a certain individual but more like a set for access to certain agricultural products that happen to grow in the diverse patches. Since the revolution in 1952, a big number of haciendas disappeared, after the landlords gave ‘planos’ to the original inhabitants. These plans were part of a register that was then used by the villagers. Paper registrations are however not important in Aymara villages, although some Aymara in villages closer to the urban world decide to buy INRA registrations. The planos were originally meant to be a proof of ownership, but it turned out differently due to the Aymara culture. The Ayllu members (as a small family) ‘own’ the land by so far that the Ayllu member can exclude others to make use of the land. They can decide who can have the usufruct rights, but never sell the land to outsiders. Changes in these ideas are here recently however, but permission will have to be asked to the highest authorities and to the entire village in a Sunday referendum, during the ´Tanta Chawe´. The Tanta Chawe is the village meeting held on Sunday. All men and woman are present, and no exceptions will be allowed. Next to this, in Aymara communities there is no free choice with regard to land use. The Aymara system knows a fixed cycle, which is laid out by the Uraq’e Apnaq’eré, the secretary of agriculture in Aymara villages. The cycle is seven years long, and of these seven years, four are used to let the earth rest, and regain energy. In the first three years, there will first be a harvest of potatoes, then sweet potatoes and after this beans, corns, or cereals. The secretary of agriculture will decide which part of the community land is in which part of the cycle. This system has as a function to control the community harvest, so that the risks on shortages of certain products will be minimal. The Ayllu member has to make sure that no other land that belongs to the Ayllu will be sold without permission obtained at the Tanta Chawe, because the Ayllu is designed to make sure that the families will remain having land over time . Ayllu Land can therefore be divided due to changed family relations, but It can not shrink as a total. It is a unwritten rule that when a son or daughter of a land owner (more or less everybody) will receive it’s equal portion of the land. Also when land is sold to outsiders, who at least have to be considered as friends, the Ayllu land will not be lost. Persons that ‘own’ land in the Ayllu tenure system are asked to use their land actively and participate in village activities. If they do not, they will be forced to do so, or else the land will be claimed by the community after the villagers voted for that in the Tanta Chawe. This also happens when Aymara persons choose to emigrate or when they are expelled after a quite serious crime. To be expelled is a big punishment, and often the highest punishment that Aymara authorities can give. More about the justice side of the Aymara governing system will follow later.

Unofficial measures People nowadays know better that registration of land is important. However, that lack of trust in the dispute system regarding land registration forced them to take matters into their own hands. The Altiplano, but also the direct surroundings of La Paz are littered with signs on which people claim land. If any problem would occur people should dial the number that is on the sign . The absent-minded tourist that takes a walk will be forced of this private property when the person that is shouting claims he has possession over a rifle. The fact that numbers should be dialled when there are trespassers (whether they are conscious about it or not) and that owners of land threaten to use physical violence for trespassing can mean that the population is very anxious about property damage or loss. This is necessary because the trespassers might in numerous cases not even know that he is trespassing, which means a lack in transparency (clear borders), In this Netherlands it is almost always clear that a stretch of land is private. Owners or land users will not tolerate any trespassing or usage of the land and they will show this on first sight on a very powerful way. Further research will have to point out whether this is because of the lack of trust in the judicial system that might solve conflicts like this is a later stadium. To prevent any later stadium (judicial conflict) farmers might think it is best to address trespassers on first sight. It is clear that the official land registration in Bolivia lacks efficiency, due to incompleteness, corrupt officials and the impossibility of a big part of the population to register. Next to this, a registration is only functional if the judicial system can support the juridical position of the owner or user of the land. Therefore, in the next paragraph, the judicial system with regard to land rights will be checked upon.

Comparison to a functional land registration system The system of land registration in Bolivia therefore is not complete because there are different systems of land registration in the country. Some of these system prove to be more transparent (INRA) than others (Ayllu system). But also the land registration system that come the closest to a good functioning system (the INRA land registration) lacks effectively by general discontent over the system, a very slow procedure and corruption. These problems have lead to a situation where Bolivians use their own measures to announce clearly that a stretch of land belongs to them. These unofficial measures will however be useless when it come to judicial disputes.

3.3 Dispute resolution in Bolivia When Bolivia achieved independence from Spain in 1825, the Supreme court of Bolivia was created by Simón Bolívar, a name that is still found very frequently in public life (statues, football clubs, roads, buildings). According to the website of the government regarding the Supreme court, it states that the Supreme Court has withstand numerous unconstitutional threats in the past. Nowadays, the Supreme court still plays an important role in restructuring the judiciary (the Institutional reform project, or in Spanish, the Proyecto de Reforma Institutional). From 1994 until 2007 a number of important judicial changes have taken part in the Bolivian system. In 1994 some institutions were formed and the system that was created during that change still exists nowadays. When the constitution was reformed in 1994, some major changes were brought into the structure of the judicial power. New courts and institutions were created during the ‘Proyecto de Reforma Institutional’. The new judiciary system since then existed of the: Supreme Court (Corte Suprema de justicia), Constitutional Court (Tribunal Constitutional), The justice advice council (Consejo de la Judicatura Bolivia), Agrarian Court (Tribunal Agragrio Nacional), the Superior district courts (las Cortes Superiores de Distrito), Local Courts, (los juzgados de partido) and small local courts who will speak justice on the terrain of civil, criminal, administrative, family, labour, child, social and mining cases. (juez instructor ). Next to this the office of the Ombudsman was created (Defensor del Pueblo) which should improve the access to justice for the poor, and improve access to justice using mediation .

For this research especially worth mentioning is the intention to start recognising the indigenous justice system into the official Bolivian justice system, in order to involve the indigenous population more in the official Bolivian justice system .

Without judicial power, but very important for the judicial system is the system that registers real estate (Dereches Reales) and the Notaries who will also register rights.

The highest judicial authority is the Supreme Court (Corte Suprema). This court has four main chambers: two civilian, one criminal and a chamber for administrative, mining and social cases. Officially, the 12 judges in the Supreme Court are chosen by two-thirds vote by the Congress. They are not appointed for life, as in the Netherlands, but for 10 years. They may be re-elected though. We can see an important difference in the separation of powers between the Netherlands and Bolivia here when it comes to the term of the appointment. Which is actually written down in the constitution and is not created due to transparency problems, corruption or plain unconstitutionality. The supreme court will decide over disputes regarding diplomats or government officials.

Ranked below the Supreme court, which is in Sucre, there are Superior District courts in every department in Bolivia (Cortes Superiores). The judges in the district courts (called Vocales) are chosen by the Supreme Court. The Supreme Court can choose out of candidates proposed by the Judicial Council. Before this system existed, the judges of the district courts were chosen by the Congress, which received a list of candidates from the Supreme court. With judges in the Supreme court chosen directly by the executive power, the separation of powers continued to be a problem here, also in the district courts. The judges in the district courts are elected for six years. The number of judges in each court depends on the number of cases and inhabitants in a certain district.

Cases that arrive for appeal at the district courts have already been decided over by the courts of first instance. (Tribunales and juzgados de partido). The judges in the courts of first instance are appointed by the Supreme Court. The district courts will send a list of possible candidates to the Supreme court. It is clear that this system of internal election controlled by the Supreme court from the top-level is soon corrupted and vulnerable for ‘friends politics’ because the politics have major influence on who will be in the Supreme court . The judges in the local courts of first instance are criminal and civil courts. In the criminal courts, the judges (juzgados de instruccion) will investigate, and prepare the trial.

Apart from the other courts there is a constitutional court (Tribunal Constitutional). The constitutional court in Bolivia checks the compatibility of the decisions of the government to the constitution. This court ensures that all acts, resolutions and decisions are checked with the Bolivian constitution. This way, the democratic balance of power could be controlled and the fundamental rights of the civilians can be guaranteed. The Bolivian constitutional court is located in Sucre, it is only subject to the constitution. The court exists of five judges, and five alternative judges.The judges are appointed for ten years, they can be reappointed when they have not served the court for the amount of time they did.

Disciplinary measures within the judicial system are nowadays taken by the judicial advice council in Bolivia (Consejo de la Judicatura Bolivia). It also administrates the judiciary system. Its goal is to lower the amount of corruption in the Bolivian system. The judicial advice council was created as part of the constitutional reform in 1994. Before the council was created, the Supreme court had the task of administration the justice in Bolivia, and take disciplinary actions. It never did however, while national and international studies showed that there was retardation, corruption and a lack of trust in the judiciary system.

Both the constitutional court and the judicial council in Bolivia were created to restore faith in the judicial system in Bolivia, and to improve overall effectiveness. Both institutions would lighten the workload of the Supreme court, which among other tasks also executed the tasks nowadays done by these two institutions in the past.

The council has its headquarter in Sucre, where the president of the Supreme court is chairman and the other four members of the council are elected by the National congress, after the candidates are nominated by different important institutions in Bolivia. Members are elected for periods of ten years. The can be re-elected but only when a period of non membership has passed that was as long as the membership. (Article 122 en 123 van de constitutie).

Separated from this ordinary system there are is also a court for Agrarian cases (Tribunal Agrario Nacional), which is particularly interesting for this research. This National Agrarian Court is the highest court for disputes concerning land. This court is also situated in Sucre. The court does not exist long. It was created in august 1999 and it is was the first court in Bolivia for agricultural disputes. Creating this National Agrarian court was also part of the land reform law in 1996 (with which the INRA was created as well). One of the primary tasks of the National Agrarian court was to establish Agrarian courts through all of Bolivia’s nine departments and arrange the jurisdiction of these Agrarian courts. Finally, the court decided to establish fifty Agrarian courts all over Bolivia, called Juzgados Agrarios. The current tasks of the National Agrarian Court are to decide on the budgets for the Agrarian courts in the rest of the country. It will also decide on jurisdiction disputes between the different agrarian courts. The court has seven fulltime judges, and one president. The most important function for the two chambers of three judges of the National Agrarian Court is to decide in cases after cassation. The National Agrarian court will also take notice and decide over the judge when one of the parties in a case at an Agrarian court rejects or has a complaint about the judge. The election of the judges knows the same procedure as with the district courts. A list of candidates will be send from the Judicial council to the Supreme court.

The forty-six Agrarian courts still left in Bolivia have are the primary courts for disputes regarding land. These courts are really small and they exist of one judge and a secretary.

Since the constitutional reform in 1996, the office of the Bolivian ombudsman took shape. The tasks of the Bolivian ombudsman are to process complaints of the public about misuse of government powers and violation of Bolivian and human rights. After such a complaint or on its own initiative, the Bolivian ombudsman has the power to investigate the way that the government handles in a certain situation (any situation regarding contact between the government and a citizen). After research, recommendations can be made to improve justice, but these recommendations are not binding to other government administrations. Also high on the agenda, is the fight against discrimination of woman and the indigenous in Bolivia .

Each department in Bolivia has its own representative of the ombudsman. In the department of La Paz, three different offices report to this representative. One office is located in the Jungas (the ‘low’ part of La Paz), another one is located in El Alto and the third is located in the city of La Paz itself .

The sustainability of the office of the Ombudsman in Bolivia and its work in promoting human rights is however very dependent on state support, according to information written by the Ombudsman . Especially the national Assembly will have to approve with the Ombudsman, will his office work. In Latin America, the powers of the Ombudsman vary a lot. Primarily failure or success of the Ombudsman has to do with the personal strength of the Ombudsman and the pressure he or she can take.

In Paragraph 3.1 we have already seen that there is an big lack in transparency with regard to the election of judges. This judicial system is corrupt and for if Microjustice want to support a good conflict resolution system, ideas should be focused on local conflict resolution because the Microjustice initiative will have no control over the policies and the control over these policies pointed out by the government.

The judicial system in Bolivia is complex, because of great distances and differences in culture, bribery and a lack of funding. Moreover, customary law (traditional justice) in big areas around the country exist next to the official judicial system, as pointed out above.

The justice system in Rural areas. In rural areas the person that would be most similar to Western judges would probably be the ‘juez instructor’ . This is a hierarchical low ranked judicial official, but because the areas are often so remote, he is the (criminal) investigator (presecutor) and the judge . The juez instructor can decide on all types of conflicts but farmers in rural areas often do not resort to the judge, or any official system. Shockingly, an investigation from 2007 showed that only 180 of the 327 communities or municipalities, existing of a number of villages, have a judge (juzgado de partido). On 76 of these communities have a prosecutor, which means that in much other cases the judge will be prosecutor as well. Only 11 communities have a public defender. In the rural and indigenous parts of Bolivia where there is in fact coverage of the official dispute system, these groups are being discriminated or no attention is given to their special situation (language, personal documents)

As written above, the coverage of availability of courts and judges is bad in Bolivia. Not only physical access but also procedural access to justice are bad in Bolivia. In the Bolivian state system, with multiple ministry’s such as the Ministry of foreign cases, Ministry of agriculture there is also a Ministry of Government. When having social talks nobody really understands what this Ministry does. But the same result would probably be achieved when asking in the Netherlands about the Ministry of Common cases. Fact is however, that in the Netherlands about 3,2 percent of the state budget is spend on the justice department. In Bolivia, only 0.84 percent of the national budget was spend on justice in 2004. Courts in 1989 claimed that 0.87 percent of the national budget was spend on the judicial branch . It seems that in 15 years of time with economical growth not much changed when it comes to the judicial budget. But even more shocking, is that when we take a look at the budget of 64 percent for the legislative, executive and judicial powers combined, only one percent of this budget is allocated to the judicial power, whilst two third of this amount is allocated to the executive branch. It might be clear by only reading the figures, but the Bolivian state has a very strong Executive branch, a legislative branch that tries to be influential but is not , and a weak judicial branch .

Alternative dispute settlement Alternative dispute settlement systems that could broaden the presence of justice systems around Bolivia are available. However, a big part of the country are without alternative dispute settlement systems, they are badly spread. Next to this, where there is an alternative dispute settlement system, there are often no guidelines followed for decision making.

As earlier stated, Bolivia knows numerous different racial groups. Of a least 2 of the biggest indigenous groups (Quecha and Aymara) in Bolivia it has become clear during the research for this paper that they have their own rules and dispute settlement systems. Especially conflicts regarding property are dealt with by the ‘natural’ authorities within these tribed. In the Ayllu tenure system (of the Aymaras), the authorities consist of all adult men (except the mentally ill). Because villages are often small and cohesive, conflicts have to be dealt with a lot of care. Conflicts regarding property are often created when animals, belonging to another villager, do harm to the crops or land of the other farmer. Again, one person investigates and judges, based on witnesses and claims made by the parties. The ‘judge’ often decided immediately, and his decision is almost never appealed. The reasons for this are threefold. First of all, the decision made by the village judge, is not accepted in the official legal Bolivian system, and neither is the fact that the village judge has authority. Second of all, an official procedure would mean that big, time expensive trips would have to be made to a big city while leaving the farmland alone. Third, in small communities the official justice system is seen as corrupt . Fourth but not least, the other inhabitants of a village would dislike the farmers to fight out internal disputes in front of outsiders . Let alone that there will be decided by outsiders. Next to this there is a lack of legal interpreters that can support the indigenous population that almost always only speaks the Aymara language. Disputes over land, regarding more communities or different types of communities will however almost always be brought into the official procedure.

Aymara system of justice and dispute resolution.

The reactions of the Aymara villagers upon the words Ponchos Rojos in a certain question during research in Aymara villages can be described as grim. Faces went down and mouths were shut. Although the Ponchos Rojos are considered to be Aymara, the people in the villages of Isla del Sol, Puerto Perez and Cohana were not happy that this was a part of the interview. The people interviewed in these villages said that the Ponchos Rojos claimed the acted in line with Aymara law, but this is not the full truth. They also said that this autonomous group dismantled the reputation of the Aymara people towards others.

In order to explain that the Aymara were well developed and reasonable people they decided to give information about the Aymara justice system, which is hard to obtain through books or other resources, as the Aymara law and processes are unwritten. …. Functies landbouw etc.

Dispute reolution.

in addition to the above should be considered that the former authorities may also have participation in conflict resolution Advies functie als de uisige generatie er niet uitkomt.

But as said, differnt villages have different charecteristics. So some justice systems may be different than others.

Addressing the problems with regard to the dispute systems used by the indigenous and the official system. In December 2007 a new constitution for Bolivian justice was approved by the government. A small political riot followed, because the opposition parties claimed that the constitution was not approved according to the Bolivian system. They claim that there was not a two-third majority present in the Assembly, and the Assembly was not held in Sucre (where is normally always has its seat) but in Oruro. Next to this, the opposition parties were not present at the time of the voting. Unconstitutional as it may or may not be, the new constitution did have legal consequences. Amongst other articles, the new constitution grants equal standing to the dispute resolution systems used in the small rural communities . The verdicts by local community authorities should however respect the right to life. This could be an important step towards integrating the local justice systems to the official justice system. The constitution states however that the decisions over cases made by the local authorities or judges (who appoint themselves) cannot be judicially reviewed by the (now: other) official justice system (article 200). Still, punishments given by communal courts can be punishments by death. Because this communal system is not in a hierarchical lower position than the other official system, death punishments will occur. The constitution promotes community problems to be solved by using the communal justice system. This new constitution has according to human rights organisations and personal sources lead to crucifixions, lashings and torture. As a reaction on these accusations president Evo Morales claimed the lashings were only symbolic, and that these first lashings would promote the new communal justice system . Although the official government states otherwise, it now seems that the new constitution made the communal justice systems into some kind of vigilante. The court orders were often executed by a group of people called the ‘ponchos rojos’. This group has since gone its own way. As some kind of vigilante they seek for ‘unjust’ situations and they might even act without a communal court order. Some government officials seem to support the lynching’s by these groups: a prefect (governor), Roberto de la Cruz was filmed while a victim was about to be lynched. He asked the mob what to do with him, like the Roman Caesars did in the Colosseum . The Bolivian police freed the victim eventually. As said above, decisions made by local authorities cannot be reviewed by courts in the official state dispute resolution system. There is a great gap between

3.4: Information about the used sources.

In 2008, after a visit by the The Inter-American Commission on Human Rights (IACHR), the IACHR concluded that a large number of indigenous families lived in a state of slavery. Taking control over internal matters proves to be a hard thing to the Bolivian government, with a lack of resources.

Chapter 4: Conclusions

Beantwoording van de researchvragen - Conclusies en aanbevelingen voor verder onderzoek - Bronvermeldingen

Knipsels: A good system of legal property protection allows for the exchange of goods and economic development. Looking through the eyes of a European person this is a theory that can easily be understood. Further research will have to point out however, if a Bolivian farmer can (morally) sell his ground because the ground might be considered as common good of the entire village or tribe. From a Bolivian farmer perspective I have created a number of research questions so that I gain insight in the troubles they face regarding the protection of their property (often land). • How could the procedures regarding property protection be moderated in such a way that it becomes easier for poor/weak Bolivians (Indigenous groups?) to protect their interest in land? And again, a division between informal and formal rules will be made when it exists. • How can Microjustice Bolivia help to improve the access to justice of poor Bolivians with regard to the protection of interests in land? Access to justice does not mean access to a court, it means access to a righteous system.

Research Questions: • What are the challenges that Bolivians need to face in order to exploit the land that is necessary to them? The land which is necessary to these people is the land where their houses are, or where they use farmland (and/or) have a business. • How do Bolivians take measures to attempt protecting the land which is necessary to them? This might be on a formal way (legal system e.g.) or on an informal way (building a fence, right of the strongest) • What differences exist between official and unofficial rules and procedures which are being used in conflicts about land interests; who makes these rules? This question only applies when there is indeed a difference. If there is no difference the question will be moderated. • Why is it difficult for a Bolivian to access one of these procedures and do they lead to a righteous/satisfying outcome? (If there is a difference as stated in the question above a separation will be made between the different procedures) A righteous outcome is righteous seem from the perspective of a Bolivian. Europeans might think that some situations are not righteous when Bolivians do.

This paragraph in short: As shown above, land rights can create additional economical assets when there is a good system regarding the protection of property. The advantages of legal property protection might be found through the entire legal system when increased income can be used to hire lawyers and solve different judicial problems more easily. Increased stability in a region can serve as a foundation for more reflection on the status of a region with multiple parties.

Intervention in particular areas Where they is property and no strong will to solve problems in courts but protection by physical means threre will be conflict with regard to property. It is important to understand the different reasons for problems with regard to property. These particular reasons in the area have to be charted and only then an intervention on one specific area should be made: create sectors and then intervene .

Juzgado agrario de La Paz. Juez: Judith Mery Rojas Arce Secretario: Marisol Martha Castaños Medrano Auxiliar: Paola Gabriela Censo Castillo (9-11-07 al 8-11-08) Adicvac. Oficial de Diligencias: Mauricio Elías Copa Ocampo (9-11-07 al 8-11-08) Adic.vac. Dirección: Calle Ingavi - Esquina Yanacocha - planta baja Telefono: 2408857 Celular Juez 72072670 Localidad: La Paz Competencia Territorial: Provincias Murillo, Los Andes, Larecaja (Primera Sección Sorata, Tercera Sección Tacacoma, Cuarta Sección Quiabaya y Quinta Sección Combaya) Sud Yungas (Primera Sección Chulumani, Segunda Sección Irupana, Tercera Sección Yanacachi y Quinta Sección Suplencia: Viacha

The judiciary has long been the weakest of the three branches of the State and is widely viewed as a tool that the executive, the political parties and the military freely employ to achieve their private or partisan goals. Zie oversituatieinboliviaerggoeddenkik in nietgeprint.

Abogado geeft aan: dus je studeert in januari af? Wat ga je daarna doen? Hoe wordt je rechter in Nederland? Ik zeg 8 jaar verder studeren/werken. Hij zegt: oh, in Bolivias kun je er niet voor studeren maar wordt je rechter door (politieke) vrienden.

TO DO:

- Duidelijke onderscheiding maken tussen Aymara en Official in elk hoofdstuk. Aymara als bevolkingsgroep uitzonderen. - Bronvermeldingen netjes maken.

Occidente ziehttp://www.righttofood.org/new/PDF/Bolivia.pdf

(1) Empowering the poor through property rights (2) Hernando de Soto, the mistry of capital (3) USAID, Land and Conflict (4) A legal framework for land dispute mediation (5) MJ Legal Approach (6) Corruption in Bolivia, reforming the judiciary system (7) Politiek en Rechter (8) Tom R. Tyler, Citizen discontent with legal procedures (9) Land tenure and administration in Afrika (10) Best practice options for customary tenure Daniel Fitzpatrick (11) Land reforms in Latin America (12) Land tenure Center, Norway and Bolivia (13) Local institutions, household and welfare in Bolivia (14) Newssite for Latin American Affairs (15) Right to food Bolivia (16) Access to justice and social inclusion, the road (17) the system of justice in Bolivia (18) Bolivia communal justice report (19) Lynching, communal justice and Bolvia’s new constitution. http://www.humanrightsfoundation.org/media/080305.html (20) www.poderjudicial.gov.bo sort www.rechtspraak.nl (21) www.defensor.gov.bo ombudsman (22) plan estrategico quieneopal 2007-2011 resumen ejecutivo. (23) http://www.iadb.org/idbamerica/index.cfm?thisid=2217 as visited on September 30th. (24) The Human Rights Ombudsman and Democracy in Latin America (25) OversituatieinBoliviagoeddenkik (26) Justitia Comunitaria en los pueblos originiarios de Bolivia, Vladimir Gutiérrez Pérez, 2003 (27) Las Prácticas Jurídicos Aymaras dese una perspectiva cultural, Enrique A Mier Cueto, 2003.