When Evo Morales was elected president of Bolivia in 2005, he promised to “govern by obeying the people.” The recent approval by the Plurinational Assembly of laws dealing with mining and children’s rights are two examples of the challenges and benefits of this radical approach to governing.
Breaking with the conception that legislating should be confined to the four walls of parliament, the Bolivian government has made repeated efforts to involve broad sections of society in rewriting the rules of the country.
The first, and most important step taken in this regard was the convocation of a Constituent Assembly in which elected community delegates, together with representatives of the country’s powerful social movements and other civil society groups, drew up a new constitution.
The new charter was subsequently approved by a large majority in the 2009 referendum, despite the often-violent resistance campaign waged by right-wing opposition groups.
Since then, the government has sought to convert some of the novel ideas in the constitution – such as granting rights to Mother Earth, indigenous autonomy, and the nationalization of natural resources – into enforceable laws.
Seeking to legislate both with the people and for the people, the government has paid particular attention to debating new laws with those sectors that would be most directly affected by them.
The presence of highly combative social movements steeped in the knowledge that what has previously been taken away from them in parliament can and has been won back on the streets, has made this process somewhat volatile at times.
Yet, rather than fear street mobilizations, the current Bolivian government has come to see them as the lifeblood of the process of change underway in this small Andean nation.
After three years of intense debate Bolivia’s parliament approved a new mining law in late May.
The new law seeks to bring legislation in line with the new constitution, according to which minerals are property of the Bolivian people and to be administered by the state, “in the interest of the collective”.
The new law also builds upon the series of actions taken to date by the government in the mining sector. These include the nationalization of mineral deposits and tin smelters, the renegotiation of contracts to ensure increased state control and revenues, and steps towards metal processing and industrialization.
John Crabtree and Ann Chaplin write that the government’s policies have helped resuscitate COMIBOL, the state mining company, “as a key planner in the sector, as the owner of important subsoil resources, as a partner with a number of private sector concerns, as promoter of industrialization, and as a producer in its own right”
Most importantly, the new law has been heavily shaped by debate – at times violent – between different sectors within the mining workforce and indigenous communities affected by mining operations.
While discussions may have started at meetings inside the Ministry of Mining, the more conflictive issues were generally resolved in the mines or on the streets.
In response, the government has largely sought to facilitate dialogue among and between miners and affected indigenous communities, as a necessary precondition for overcoming tension and advancing their mutual aims.
An example of this was the Colquiri mine dispute in May-June 2012. What began as a mine occupation by a local mining cooperative quickly took on a national dimension when the Trade Union Federation of Mineworkers of Bolivia (FSTMB) and the National Federation of Cooperative Miners (FENCOMIN) took up the cause of their respective local affiliates (the former demand the expulsion of the occupiers, affiliate to the latter).
In an attempt to reconcile the warring factions, the government offered to nationalize the mine as a way to secure the jobs of the existing mineworkers and offer employment to the occupiers. The government also stated it was willing to grant the cooperative access to certain mineral veins.
While trade unions representing private mineworkers initially opposed the deal, believing it could threaten the jobs of its members elsewhere, they soon came onboard.
On the other hand, the local cooperative refused the offer, and instead signed a deal with the private mine owner, Glencore, that would see them work part of the mine in return for handing over what they extracted back to the company.
With support for nationalization growing among the mineworkers, local communities and even some cooperative miners, the government finally ordered COMIBOL to take complete control over operations at Colquiri, while granting the 26 de Febrero cooperative access to the Rosario vein. In return, the cooperative had to sell what it extracted to COMIBOL and was barred from associating with transnationals.
This same issue of mining cooperatives partnering with private companies was also the spark behind violent protests that rocked the country just as the law was reaching the final stages of approval.
Once the government had presented its draft version of the law, agreed to by all sections of the mining workforce, parliamentarians sought to remove the right of cooperatives to freely sign contracts with the private sector.
Parliamentarian Jaime Medrano explained that allowing this would have been “unconstitutional,” as “the state cannot turn over mineral-rich areas for companies to commercialize as private property.” While the constitution allowed for the cooperative sector to sign mixed contracts with private companies, he noted that this required approval from the state.
In response, cooperative miners organized large demonstrations that saw most of the country’s main roadways blockaded and 43 police officers taken hostage.
The ensuing public debate led to the revelation that over 40 cooperative-company joint contracts were already in existence, which according to Kirsten Francescone, once again brought into sharp relief the negative role played by mining companies in the looting of the country’s natural wealth.
Through this process, the government was not only able to win support for new version of the law, including among cooperative miners, but ensured that the final draft was inline with the constitution’s mandate.
Debate over the recently approved law regarding the rights of children and adolescents has gone well beyond Bolivia’s borders, with the International Labor Organization (ILO) criticizing it for legalizing child labor from the age of 10.
Within Bolivia however, some of the strongest supporters of the new law have been organized adolescent workers themselves.
“We are happy with the new approval of the new law” said Edwin Roman Davalos, a representative of UNATSBO, the Bolivian Union of Child and Adolescent Workers, “because they listened to us, the authorities, and the parliamentarians saw our reality.”
He added that the new law had been approved “thanks to the struggles that we have waged for some time now on the streets, and to our president, Evo Morales, who listened to us.”
In response to questions raised about the new law and its contravention of the ILO convention on child labor, Rodrigo Medrano, also from UNATSBO said: “Those are conventions that are drawn up in the UN or the ILO, but I believe that those conventions are signed without having spent much time here in Bolivia.”
Much of the international reporting about the new law has ignored the fact that in its initial incarnation, the law sought to increase the legal working age from 14 to 16 years of age.
It was only after sustained protests (that gained media attention and public sympathy after they were repressed by police), that a new draft was developed between parliamentarians and child worker organizations.
MAS deputy Javier Zavaleta acknowledged that it was “a very difficult debate” because these groups “strive for ideals that are sometimes difficult to achieve.”
“We met with them and they are intelligent children that understood our reasons and knew that if they could choose, they would not be working,” he added.
The final version allows children under the age of 14 to work, but only in “exceptional circumstances”.
From the age of 10, children can work for themselves, but not be employed by another person. From 12 onwards, children who have the written permission of the parents can work for others, although they are not allowed to work certain jobs, particularly those requiring a lot of physical strength.
In an important step forward, the law states child workers must have the same rights and protections as other workers, including receiving at least the minimum wage and ensuring time is set aside for all child and adolescent workers to have their educational needs met.
In a context where an estimated 850,000 children are already in the workforce, the new law seeks to ensure that their rights are protected, rather than criminalize or force underground those that need to work to help their families.
Furthermore, it comes in a context where the government has been endeavoring to eradicate the root causes of child labor. Apart from facilitating a massive drop in overall poverty, the government has also provided a social security payment to families whose children attend school.
“This is a law that represents a just equilibrium between reality and rights, rights and international conventions,” said Garcia Linera.
It could have been “easy to pass a law that corresponded to international conventions,” he added “but which would not have been complied with, it would not have been implemented”
Instead, Garcia Linera explains, we chose to draft “a law that takes as its starting point what we have today and that charts out a realistic and viable path for changing the working situation of children, that goes beyond international conventions.”
Challenges and benefits
Both new laws, and the process of their approval, reveal the challenges and benefits of legislating with the people.
In both case, the practice of “governing by obeying” facilitated societal-wide discussions that helped both the government and social movements learn from each other and find common ground for advancing change.
In terms of the mining, a consensus was only possible after all those sectors directly affected by the new law had faced off against each other and revealed to the wider public what was at stake.
Throughout the process, the government was able to consistently explain its position in defense of nationalization, thereby win the necessary support to enact the new law.
At the same time, the law on children and adolescent rights showed how without direct and regular contact with the reality on the ground, even parliamentarians with the best intentions can get it wrong.
Without doubt a law banning work for those under the age of 14 (or even 16 as initially proposed) would have gained accolades from institutions such as the ILO. However, it would have done little to improve the situation of those hundreds of thousands of children already working illegally.
Instead, by listening to those most directly affected, parliament was ultimately able to pass a law that both attempted to deal with this reality while seeking to change it for the better.
Both examples also show that no matter how progressive a government maybe, only pressure and support from below can ensure it says on track. This has meant at times that the government has had to contend with competing social movements mobilizing against the government and each other.
For Garcia Linera, this is more a benefit than a challenge. He said, “The struggle is our nourishment, our peace, not our nightmare. Absolute tranquility scares us. The opposition thinks that the struggle will tire us out; instead, it nourishes us.”
Similarly, a Bolivian vice-minister once commented that having the people protesting on the streets makes it so much harder to govern, but that at the same time he hoped they never leave the streets.