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Walter Ferrufino is indicted and his assets and bank accounts are ordered to be frozen for failure to comply with the right to consultation and failure to obey constitutional judgement 2003/2010-R

A spokesperson of the legal department of the Assembly of the Guarani People of Itika Guasu (APG IG) has informed Radio Nizkor that on 11th January, the indigenous organisation was notified of a decision dated 7th January 2013 issued by the Specialised Prosecutor for the Prosecution of Crimes of Corruption (FEPDC), specifically by the Prosecutor of Yacuiba, Dr Luis A Frías Durán.

Walter Ferrufino

The said notice concerns the formal indictment of Nelson Walter Ferrufino Gaite, Sectional Executive of Development of the Province of O'Connor, for the alleged crime of "breach of official duties", defined in and punished pursuant to article 154 of the Criminal Code of Bolivia.

The indictment is the prosecutor's response to a complaint submitted by the APG IG against the Sectional Executive of the Province of O'Connor for failing to comply with the Constitutional Judgement 2003/2010-R and for violation of the right to consultation, as well as the formal request for indictment against Sr. Walter Ferrufino for breach of duties and disobedience of a judgement issued to grant constitutional relief.

The principal facts which support the accusation of the APGIG are those contained in the two projects entitled "Rural Electrification Construction Ipaguasu Chimeo Province of O'Connor" and "Rural Electrification Construction Zone 2 Guaraní North Sector", in respect of which Walter Ferrufino executed a contract of works without having conducted a prior consultation as required by the Constitutional Judgement 2003/2010-R. As a result, on 8th December 2012, the APG IG, through its representatives, submitted a formal complaint against Nelson Walter Ferrufino Gaite, Sectional Executive of Development of the Province of O'Connor, for the alleged crime of "Breach of duties" (Art. 154 of the Criminal Code) for failing to carry out a consultation in good faith and in an appropriate manner, prior to executing projects in the Original Community Territory (TCO) of Itika Guasu, in contravention of the Political Constitution of the State, specifically, its articles 30, paragraph II, num.15, and 403 paragraphs I and II; the Convention concerning Indigenous and Tribal Peoples in Independent Countries (ILO Convention 169), of the International Labour Organisation in its Art. 6.1 and 2 and Art. 15.1 and 2; the United Nations Declaration on the Rights of Indigenous Peoples, Arts. 19 and 32.1, 2 and 3; and the Constitutional Judgement 2003/2010-R of 25/10/2010.

On this basis, the Prosecutor provisionally characterised the conduct of the defendant as Breach of Official Duties, a crime defined by and punishable pursuant to Art. 154 of the Criminal Code, for the following grounds: failure to carry out a prior consultation using the appropriate procedures and through their representative institutions, before approving any project which might affect their lands or territories (of the people of Itika Guasu) - pursuant to the International Labour Organisation Convention Nš 169, Art. 6.1(a), ratified by Law 1257 of 11 July 1991 and the United Nations Declaration on the Rights of Indigenous Peoples, Arts. 18, 19 and 32.2, passed into law pursuant to Law 3760 and 3897 - thus not having complied with the right of indigenous peoples to decide their own priorities in the process of social development relative to the lands which they occupy and their participation in the formulation, application and evaluation of plans and programmes which directly affect them according to ILO Convention Nš 169, Art. 7.1, ratified by Law 1257 of 11th July 1991, and confirmed by Art. 256 of the Political Constitution of the State, the UN Declaration on the Rights of Indigenous Peoples Art. 32.1, passed into law by Law 3760 and 3897.

According to the spokesperson of the legal department of the APGIG, the Prosecutor has also established cautionary measures to guarantee compensation of the civil damages incurred as a result of the alleged acts, for which the prosecutor has ordered a provisional lien on the assets of the accused and the freezing of his bank accounts.

This would be the first time in Bolivia that a public official of this rank has been indicted for failure to carry out the prior consultation to which the indigenous peoples have a right and it consolidates the position of the APG IG that the Constitutional Judgement which concerns them must be implemented without any delay by public functionaries of every level.

The APG IG have submitted a similar complaint against the executives of SEDECA (the Departmental Service for Roads) who have never complied with this Judgement, and according to the spokesperson of the legal department of the APG IG, similar complaints against senior ministerial officials and officials of the government of Tarija have also been prepared in respect of their commission of the same illegal acts.

[Source: Radio Nizkor, Charleroi and Guaye (Entre Ríos), 13Jan13]

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