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Urban Suffering Studies Center

 

 

Reform of the system of justice and world views in Bolivia

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Roberto Simoncelli

 

Context background: Bolivia - Mlal Project and the reform of juvenile justice


Bolivian Justice is going through a period of deep crisis. Over the past 15 years the anti-crime policies, focusing on repression, have produced an expansion of the penal system. Prison has become the main response (not to say the only) to criminal and social phenomena1, and as a result the index of preventive prison in 2013 reached the scandalous proportion of 83%, the worst in the whole american continent, and the prison population has doubled in the last 10 years, worsening the dramatic problem of prison overcrowding. For teenagers and young people aged 16 to 21 years, the situation was even worse: the preventive prison index for this vulnerable population in 2013 was 97% (UNICEF and the Ministerio de Justicia, 2014). It is not just a matter of statistics and abuse of the deprivation of freedom, but even worse, it is a question of deprivation of human dignity. It is clear that in this context the term of imprisonment cannot assume educational, reparative and integrative meanings.
ProgettoMondo Mlal2 has been involved for over ten years in the construction of restorative justice pathways for adolescents and young Bolivians. During these years it has contributed, as part of the civil society and in close collaboration with the State, to the construction of a political reform project in the field of justice for adolescents and young people. The project does not respond to a logic of emergency and represents a real turning point with respect to the past and the traditional tough policies. It makes provision for a restorative horizon for Bolivian justice, the affirmation of the principles of the doctrine of integral protection moulded into a highly ambitious and progressive regulatory framework3. In this article just a few aspects of the reform stand out. First of all, it creates a special and specialized system of justice for adolescents with a restorative approach. The teenagers are perceived as subjects with rights and responibilities and as people in the process of development, each with their own process of construction of identity, which includes ethnic, socio cultural, gender and generational aspects. In a logic of minimal intervention of the penal system, the deprivation of liberty is seen as a last resort, priority is given to educational and empowering pathways, as alternatives to criminal proceedings (remisión), criminal liability is reduced by 4/5.
The writer believes that political projects even if avantgarde, if not supported by the consensus of public opinion and firmly anchored to the socio-cultural characteristics of a population, are not exempt from the risk of losing the thrust of progress or being attracted to regressive forces and involutional spirals4. He therefore proposes the following exploration without the presumption of being exhaustive, but with the modest intention of giving some food for thought, given on the one hand the general trend of the Bolivian society, urban and rural, to resort to punitive practices and on the other the rise of new reparative philosophies in adolescent justice and some reparative practices in the peasant and indigenous world. In particular it would be preferible to judge more suitably whether the route taken by restorative justice for adolescents in Bolivia can be a viable path for the reform of the penal system also for adults; if it can represent a channel of communication with indigenous justice; if it can ultimately be sustainable in the future and respond to the necessities of the people and the socio-cultural context of Bolivia.
In this regard it should be noted how the reform of justice for adolescents is primarily the result of a broad and deep debate on a national level. The security paradigm and the emotional/punitive responses to criminal phenomena are called into question. In the spirit of the new political Constitution of the Plurinational State of Bolivia "where the search of Vivir Bien predominates", the reform incorporates the restorative paradigm so that justice is not just limited to the application of the law, of the penalty, of just retribution, but also enhances harmony, peace, the rights, the ability of people, dialogue and the values that are at the foundation of the different cultures of the Bolivian society.


World vision and restorative justice


It can also be seen how in the case of Bolivia the roots of restorative justice can be encountered in the cultures of native, indigenous peoples. In particular "the reparative paradigm enhances many practices, values, the very procedures of indigenous justice of the Bolivian people, given that it places the person, the community at the centre, (...) it is the people and the community that need to participate actively to restore collective harmony that is essential for living together5 " The commission of a crime is tackled starting from this vision. In the words of Xavier Albó "the pathway or most common result is the reintegration of he who has commited the crime, to his advantage and to that of the whole community. It can happen that after a reprimand and a reflection, the offender works for the family that he had robbed." The reform, precisely because of its reparative, participatory nature, once again in the spirit of the new Constitution, can also be an opportunity for meeting and reciprocal appreciation, an enriching dialogue between ordinary justice and indigenous justice and more generally a thin line of communication between society, cultures, populations, nations, worlds that have not always looked at and recognized each other, historically, on a parity of dignity. It should be noted that within "indigenous, peasant, community" justice, there are an extraordinary variety of forms of management of conflict and practices, among which some punitive and others reparative, usually transmitted orally and also for this reason very flexible and adaptable to the cultural, social, geographical context. In this universe for the most part poorly studied and explored, there are also punitive forms, arbitrary and out of proportion, such as real, public lynching, which however, for their exceptionality, as Boaventura de Sousa Santos reminds us, can not be mistaken for features of indigenous justice or used to delegitimize indigenous justice. Boaventura de Sousa Santos in Justicia indígena, plurinacionalidad e interculturalidad en Bolivia (Page 22.) argues that "the way in which indigenous justice is demonized, within the media-political sphere, as a wild and barbaric form of justice is a case of racism. Obviously indigenous justice in its enormous diversity is not free of excesses, as neither ordinary justice. In the case of indigenous justice, colonialism consists in transforming exceptional cases into the rule (...) to show indigenous justice for what it is not, when through the centuries it has shown all its richness and effectiveness resolving conflicts where the State had not even arrived".
We begin our journey as if immersed in the magical realism6 of the stories of Garcia Marquez, imagining Bolivia as a country located in an undefined place and in any case beyond the Western border. An inexistent border, permeable, changeable, which is shifted depending on the intensity and direction of the winds and of meeting with people and cultures. Men, therefore, contaminate each other and breathe the air full of perfumes, the smells of the nearby populations, while maintaining very particular characteristics. In this surreal country, in fact, dreams, ancestors, the invisible are just as real, live, visible as reality: the inhabitants weave their own unique world, a kind of spider's web where the threads of the body and reason are intertwined in an almost imperceptible manner with the threads of dreams, the spirit, the ajayu7, feelings, values, energies. Even more so, the universe is not composed only of their world, but it binds with other thin threads to the spiderwebs of the inhabitants of their own community8, of the Achachilas 9 and of the cosmos.
Then here in this worldview the immoral act of an individual can undermine the thread that binds mother earth to the community and cause a natural calamity, like hail, a flood damaging the entire community. A simple scare can cause the loss of the ajayu with physical consequences such as fever, insomnia, a feeling of fear, panic. The extermination of a colony of industrious ants can have repercussions of a kind of revenge on the perpetrator even causing terrible infections, skin sores. A bad premonitory dream is a clear message and a responsibility to warn the protagonists of the nightmare to foil the threat. The illness of a child can be caused by unsatisfactory conduct of the parents. A theft, a quarrel over a plot of land endangers relationships and the stability of the whole community.
From these narratives it shows that the destructive effects of a negative value can touch different strands of the web and damage the family, social and emotional fabric and can even directly offend mother Earth and divinities. In this context the processes of care and repair must necessarily identify and consider which thin strands of which spiderwebs were touched. A ceremony of an offer to mother earth or a recall of the ajayu, an offering of bread to ants or a reparative meeting of the community can re-establish balance and rectify the damage.
In the story from the article "Justicia originaria en tierras altas: comunidades de Patacamaya, Sullcata Colchani y Umala" di René Guery Chuquimia Escobar10 a problem of land limits which resulted in a dispute is resolved during a riunion of the community. In this "reparative meeting" the parties have the possibility of expressing their feelings, "what they have in their heart", their truths, and then reunite with each other.
"There were problems, squabbles over land matters. According to custom you bring leaves of coca, soft drinks, beer and an agreement is reached, an act of good conduct is signed and hands are shaken. With this, problems are buried. Everyone says what they want to say to each other: "You offended me that time"! Also the other one speaks. They say all they have in their heart. Then they shake hands. Forgiveness is to free oneself, it is a good form of justice". (Authorities of the Community of Sullcuta Colchani).
In another case treated in the same article you can see how symbols and rituals take on essential meanings of communication between the world of light and that of shadows, between the past, the present and the future. It describes the presence of elements with great symbolic and cathartic force like the coca leaf, the pasankalla, cigarettes, bowing and kissing at the ceremonial table, which facilitate a meeting with our world and promote a change. Repentance, apologies, demonstrations of affection occur "frente a frente" (face to face) between the parties, the family members, the community, but also in front of the deity and their own ancestors.
"As indigenous authorities we have our ceremonial table. We're not here just to listen. You do not go away without considering us. You will offer coca leaves to those who like to chew them, or cigarettes, soft drinks, pasankalla, according to the companions. You have done and suffered harm. You are furious. You do not walk out of here with that grudge. At any moment you could meet and you would not greet each other. No! Come here in front of the ceremonial table. One person says sorry I committed that thing. The other forgives him. Kneel at the ceremonial table. From today on, lets move on. Kiss the table. This is what is valuable in life".

Many of these dynamics we can find in the new justice for adolescents. Recently I witnessed one of the first experiences in restorative justice in the system for adolescents. Two boys found guilty in court to have started a fire in an urban park, as part of the individual programme of rehabilitation in freedom, volontarily turned up at a repair meeting. In this event the community played an active part. It was attended by representatives of the Municipality of La Paz, the operators in charge of the park, the representatives of the volunteer service for the protection of the environment, the teachers of the educational units and the families of the boys involved. On this occasion everyone was able to express "what was in his heart". A repair agreement, extremely challenging for the young boys, was reached, based on voluntary adhesion. The offenders could take into consideration the depth of the injuries caused thereby, the actual size of the damage concerned, engraved in the words and on the faces of those present and consciously take steps to repair as far as possible, the damage. This means for the community not only repairing the material damage, but the possibility to recognize the other person, not only as an offender but as a son, student, friend, volunteer, person. The final moments of the refreshment and the hugs between the adolescents and parents, teachers, volunteers and the park managers sanctioned the reintegration of the adolescents in the community. "This is what is valuable in life."
Even from these stories, it is clear that the only ones able to recognize the full extent of the damage caused by an immoral act, by a scare, the extermination of a colony of ants, a dispute arisen from a neighbourhood conflict, by fire arson or other crimes, are those who have committed and suffered the damage. Just from this ability, though partial, to rebuild and consider the socio-cultural context, the worldview of the people and the community, is it also possible to imagine a process of care and repair certainly more appropriate and profound.
These considerations are, however, also ascribable to a process of understanding, empowerment and integration of the offender. Adolfo Ceretti and Lorenzo Natali in the book Cosmologie violente in their intention to understand the origin of violent behaviour write that we tend, rather, to portray violent actors as oriented toward a "ciascunitá" - "each oneness" organized around a phantom-community that dispenses "moral support" for violent responses, and that we call violent cosmology. Also, to understand the meaning that the violent actor attributes to his action it is necessary to listen fully to the meaning of his words and, empathize with him/her, the only decisive source for rebuilding his cosmology (violent).11
Umberto Curi12 states "That both the retribution model and the re-education model converge in being the expression of general philosophical concepts, even overall cosmological visions (..) In fact, one of the limitations of the conception of traditional punishment is precisely its abstract nature, its claim to universality, which conflicts with the need for a form of justice that can be case by case".

 

Concluding comments

In the spirit of restorative justice we would like to leave to the reader the freedom of arriving at possible, personal conclusions with respect to the initial concerns.
The following is a simple indication - guide, which can be of help in this process.
We limit ourselves to emphasize only how restorative justice can intercept, through dialogue and the active participation of the offender, the victim, the community, the specific nature of the meanings of violent action, the real depth of the injury done to the victim and the cultural fabric and and promote cummunication channels for acceptable repairs, case by case, or better, person by person.
In other words restorative justice can move in this direction and, at least, start to point the telescope to humbly explore a small part of that immense inner and outer universe that we build and that envelops us and bring together worlds that have not always known how to look at and talk to each other.

 

Notes


1 La Fundación Construir has identified 4 amendments to the Criminal Procedure Code between 2003 and 2014 that have impacted directly in the abuse of preventive detention and 9 laws that have promoted the creation of and change in types of crime and the increase in penalties. (Fundación Construir 2012 :32,33)

2 ProgettoMondo Mlal, formed in 1966, based in Verona, is a non-governmental, international cooperation Organization that has promoted more than 330 development projects to promote the meeting and exchange between different cultures in 22 countries, thanks to the sending of about 900 aid workers. http://www.progettomondomlal.org. In Bolivia ProgettoMondo Mlal together with the State has promoted the reform of the juvenile justice system. The first goal was to create an experience of "rehabilitation and social reinsertion" (the Centro Qalauma) where teenagers and young people deprived of freedom could be separated from adults and start educational, reflective and restorative paths, to integrate into society, to repair, as far as possible, the damage caused to victims and to society and to reduce the rates of recidivism. Thanks to the results obtained, the empirical evidence has acted as a driving force to agglutinate participation, feed the debate and promote the vision of restorative justice. The action therefore, included a two-speed strategy: concrete and pilot experiences in limited geographical contexts and in relation to restricted areas, while allowing awareness and technical assistance activities and capacity building multi-actor at a national level, through which to spread good, proven practices. For further details, see the book Agua que labra la piedra 1. Hacia un camino restaurativo para la justicia juvenil boliviana, edited by ProgettoMondo Mlal, Ministerio de Justicia del Estado Plurinacional de Bolivia, La Paz, 2015.

3 According to the dossier Informe temático Bolivia: situación de los derechos humanos y acceso a la justicia de población vulnerable privada de libertad en Bolivia, 2016, presented at the 150th hearing of the Inter-American Commission of Human Rights (CIDH) for the Plataforma de la Sociedad Civil Boliviana, december 2016, "the most progressive and significant reform in criminal matters has been the framework law "Código de la Niña, Niño y Adolescente". The Bolivian State adopted the recommendations of the Commission contained in the book "Justicia Juvenil y Derechos Humanos en las Amèricas, 2014", considering that since 2014 there has been established in the country a specialized system for adolescents founded on the principle of superior interest and with a restorative philosophy."

4 Also according to the dossier Informe temático Bolivia: situación de los derechos humanos y acceso a la justicia de población vulnerable privada de libertad en Bolivia, 2016, "it is worrying that just 2 years after the adoption of the Child Code, the Ministry of the Interior has submitted a bill to change the code with more severe penalties. (...). If such a reform were approved not only would it go against the principle of the best interests of the child, but it would undermine the whole process of reform designed to create a special penal system for adolescents."

5 Agua que labra la piedra 1. Hacia un camino restaurativo para la justicia juvenil boliviana, edited by ProgettoMondo Mlal, Ministerio de Justicia del Estado Plurinacional de Bolivia, La Paz, 2015. For more insights regarding the roots of restorative justice one can refer to different texts among which Bruno Van Der Maat's excellent book "Ancient practices for a new Justice" (2015), is recommended, published by the Universidad Católica de Santa María, Samuel Velarde 320 - Umacollo - Arequipa - Peru.

6 Reference to the terms magic realism and surrealism do not want to make the bolivian culture seem exotic. On the contrary the remarks want to re-evaluate the bolivian, symbolic universe that, from an alien point of view may seem unreal, backward, or pure superstition but for the bolivians is genuine, modern, real.

7 In the Andean world Ajayu is the force that incorporates feelings and reason, as the centre of a being who feels and thinks. It is the cosmic energy that generates the movement of life and its expansion depends essentially on the harmony that is generated with the universe and the respect for life and other beings Edwin Conde Villarreal. Available http://www.fmbolivia.tv/el-ajayu-y-la-armonia-de-la-vida-del-mundo-andino/

8 The "restricted individual" is the expression that the anthropologist Alison Spedding uses to describe the concept of a person as an integrated community in another more extensive one, composed of the other living beings. Spedding. Religión en los Andes. Extirpación de idolatrías y modernidad de la fe andina. La Paz. 2008. Iseat Editore.

9 The expression Aymara means a protecting divinity. It is used to name the spirits of the mountains..

10 Justicia indígena, plurinacionalidad e interculturalidad en Bolivia Pag. 577 - 586. Boaventura de Sousa Santos Josè Luis Exeni Rodríguez Editori.

11 Adolfo Ceretti, Lorenzo Natali. Cosmologie violente Percorsi di vite criminali. Raffaello Cortina Editore. (2009. Pag. 324).

12 Article "Senza Bilancia. La giustizia riparativa forgia una nuova immagine della Giustizia". Book "Giustizia Riparativa" edited by Grazia Mannozzi, Giovanni Angelo Lodigliani (2015. Pag. 40).

 


 
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