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The courts ratify the indictment of Walter Ferrufino for failure to comply with the right to consultation

On 2nd April 2013, during an oral hearing which took place at the courts of Entre Ríos (Tarija), the indictment of the Sectional Executive Walter Ferrufino was confirmed on the basis of the charges made by the prosecutor's office and as previously sought by the Assembly of the Guaraní People of Itika Guasu.

Walter Ferrufino

As we explained in our note dated 13th January, on 11th January 2013 the indigenous organization was notified of a decision dated 7th January 2013 issued by the Specialised Prosecutor for Crimes of Corruption (Fiscalía Especializada en Persecución de Delitos de Corrupción - FEPDC), specifically by the Prosecutor of Yacuiba, Dr. Luis A. Frías Durán.

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 Nş 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 Nş 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.

This provisional charge was ratified by the court during a hearing where the cautionary measures necessary in the circumstances were considered and the request of the APG IG to order the preventive detention of Walter Ferrufino was rejected. He was ordered to present himself at the Prosecutor's Office every fifteen days and the judge cautioned that the case could be extended in the event of further evidence of his wilful misconduct.

The APGIG's complaint was the result of a campaign of harassment and abuse directed by this wicked official, known for his racism and irascibility, against the communities of the TCO Itika Guasu.

Spokespersons from the legal department of the APGIG believe it is possible to prove that this conduct is characteristic of Walter Ferrufino and of various of his officials who behave as "overseers" or "kapangas", refusing to recognise the indigenous organisation, its uses and customs, or even the indigenous law, including constitutional law, which protects them.

Arguments of Walter Ferrufino's defence

Notwithstanding that the only purpose of the hearing was to establish cautionary measures, the defence lawyer of Walter Ferrufino Gaite, the well-known attorney from Tarija, Doña Mónica Ugarte, tried to argue for the "innocence" of the official using reasoning which is incompatible with the practice of law and which ethically violates the accused's right to a defence by using false doctrinal arguments which could in some cases, even be considered esoteric.

The first of these arguments is that Walter Ferrufino does not have the power to execute agreements, and therefore, that it was beyond his competence to comply with the right to consultation which is only within the power of the Governor Lino Condori, to whom the official is subordinate.

Given the level of evidence submitted by the APGIG, this argument leads the case into dangerous territory given that if this were true, Walter Ferrufino would have committed the crime of usurpation of powers by signing public contracts on behalf of Governor Condori.

Following this argument, given that Walter Ferrufino would have acted under the orders of Governor Condori, his liability would be greater as compliance with manifestly illegal orders, as well as lacj of the Constitutional Judgement would not exempt him from liability. If that were not enough, these arguments would attribute Governor Condori with responsibility for the same criminal act as that committed by Walter Ferrufino, resulting of necessity in his indictment.

This legal argument also ignores Law 007 of the Regional Assembly of Tarija which gives powers to all officials with the position held by Walter Ferrufino, as this hierarchical position only exists in Tarija and is not envisaged by the New Political Constitution of the State (NCPE).

The other argument that might be considered somewhat "esoteric" was the long speech by the defence attorney to the effect that the Constitutional Judgement is applicable only to the National Government and its ministers, but not to Walter Ferrufino as he is only a lower level public functionary within the State administration.

This argument puts Walter Ferrufino in a "legal limbo" and in what we could describe as a constitutional exception which clearly violates the principle of equality before the law, the principle of legality and something more elementary still: the universal value of constitutional principles applicable to every Bolivian citizen, whether or not he is a public official.

All of the foregoing further fails to take into account that on 11th July 1991, the National Congress approved the ILO Convention Nş 169 on Indigenous and Tribal Peoples in Independent Countries, a fact which is referred to in the Constitutional Judgement and as a result of which every public official has been obliged to comply with the provisions thereof since that date.

The utilitarian argument against indigenous ownership

The third argument used encapsulates a more "racial" view as it is based on the rejection of indigenous law and on the fact that the APG IG opposed the installation of electricity in the TCO Itika Guasu, implying, according to this view, an attitude of savages who are ignorant of the advantages of civilization which the eminent public official Walter Ferrufino is seeking to introduce in the province of O'Connor.

Further, Walter Ferrufino's defence attorney elevated the electric grid to the category of a "human right" which is above indigenous rights and therefore renders the right to consultation inapplicable as, according to this false argument, this is subordinated to the superior "human right" which has to do with the basic needs of the population.

This is a completely untrue statement. The APGIG never opposed the installation of an electricity grid, only the racial segregation implied in the project according to which certain indigenous communities were left outside the grid.

The climax of this argument was the reading by the defence attorney of a letter from a community which is part of the APG Itika Guasu which she sought to submit as evidence that there had been a consultation. In fact, the letter was a protest against having been excluded from the electricity grid and was completely unconnected to the interpretation which the defence attorney sought to give it.

These types of arguments demonstrate the complete rejection of the fact that the TCO Itika Guasu is owned by the APGIG and, of course, of indigenous property rights; and this is the fundamental issue which explains the conduct of Walter Ferrufino and his defence attorney and the principal reason why they argue the non-applicability of the Constitutional Judgement.

Coincidentally, one of the most important matters set out in section III.4.2 of the Constitutional Judgement concerns "The right to land and territory", where there is an extensive discussion about indigenous property rights, rights which in this case, refer to the property of the TCO Itika Guasu.

The right to consultation in the case of the original indigenous peoples (the guaranis of the TCO Itika Guasu have lived there for at least 400 years) is a direct consequence of their ownership of that land. This right was recognised, as explained in the said section III.4.2 of the Constitutional Court judgement, in the ILO Convention 107 and restated subsequently in the ILO Convention 169, enacted into domestic law of the Republic as Law Nş 1257.

It is also incorporated in the United Nations Declaration on the Rights of Indigenous Peoples, ratified by Bolivia in Law Nş 3760, and as the Constitutional Judgement sets out, it has been part of internal Bolivian law since 1991 and 2007 respectively. This indigenous ownership right is now expressly included in the current Political Constitution of the State.

To understand these issues, one must bear in mind that Walter Ferrufino is the typical "rancher without land" who illegally takes indigenous lands in usufruct. This fact is what leads his officials to deny the existence of the TCO Itika Guasu and to blame the leadership of the indigenous organization for blocking the development of the area and for being responsible for doubting the "exemplary conduct" of this official who struggles tirelessly to develop "O'Connor", a word used interchangeably in this case with the expression "Original Community Territory of Itika Guasu"

In this way he seeks to reject those with the right to property and argues that "la base" (referring to "ordinary people") support his feudal rights, going so far as to usurp the actual legitimacy of the indigenous organization, which he in fact did in a formal speech on the anniversary of the foundation of the APG IG.

The silence of the press in Tarija and Bolivia

Walter Ferrufino is the first public official to be indicted for violating the right to consultation in Bolivia and as of today, no media either in Tarija or in the rest of the country have mentioned the fact of his indictment, which goes to demonstrate the profound repercussions of this philosophy which opposes indigenous rights and, in particular, the right to communal property, to the extent that it deems it better to consign to silence this type of information even though this violates the minimum standards of freedom of information.

The deliberate concealment of this information is a clear sign of the contempt still suffered by indigenous peoples and, in this case, by the Bolivian guaranis, at the hands of the media and the political leaders of the various parties.

For them, the guaranis are reviled and invisible.

Map of TCO Itika Guasu

Click here to enlarge

[Source: Radio Nizkor Editorial, Charleroi and Guaye, 15Apr13]

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small logoThis document has been published on 20Aug13 by the Equipo Nizkor and Derechos Human Rights. In accordance with Title 17 U.S.C. Section 107, this material is distributed without profit to those who have expressed a prior interest in receiving the included information for research and educational purposes.