Category Archives: National Human Rights Institutions

Torture Prevention and the Costa Rican Defensoría de los Habitantes

Costa Rica ratified the CAT on 11 November 1993 and the OPCAT in November 2005. The Foreign Ministry proposed to the Defensoría that it become the NPM and in February 2007 the office was designated by executive decree.  The Costa Rican Defensoría de los Habitanteswas the first NHRI in Latin America to be designated the NPM under the OPCAT.

Personnel have reflected on the significance of designation:

“According to the Protocol the important thing is that the [candidate institution] have a trajectory, an experience in dealing with the issue of torture, and credibility…As such, it was gratifying as it was a species of recognition of the work we have been developing and now it is formalised with OPCAT…”[1]

The Defensoría has engaged in inspecting detention facilities since its creation in 1993, highlighting in particular immigration detention centres and police holding facilities. Structurally, it is one of the least robust NHRIs in Latin American. However, it is compliant with the UN Paris Principles.  For instance, the Costa Rican office stands alone in the region as the only NHRI not to have been granted constitutional status.  It also lacks immunity from prosecution.

However, the Costa Rican model’s is comparatively unconstrained in terms of mandate and powers, including unrestrictive inspection of public facilities, access to documents except state secrets, and the enforceable summoning, by police escort if necessary, of public officials. The NPM directive mandates the Defensoría to conduct regular inspections, without prior notice, of detention facilities under the jurisdiction of the Ministries of Justice and Public Security. In turn, Article 3 obliges these Ministries to cooperate with the Defensoría.

One obstacle that the Defensoría has confronted is securing the resources necessary to fulfilling this additional role. A request in 2008 was rejected by Congress.  A lack of funds has delayed the formation of the NPM unit until 2009 and the work of the unit continues to be affected by a lack of logistical and economic resources.

The Defensoría has subsequently sought to codify its NPM function in law in accordance with Article 18 of the OPCAT and the Paris Principles.  To this end, a law project was submitted to Congress in October 2011, but is yet to be approved.  In the interim, the Defensoría has issued its own directive detailing the role and responsibilities arising from this additional responsibility. The executive decree does not explicitly grant the Defensoría the authority to inspect other public and private detention locations such as juvenile centres and psychiatric institutions. However, in practice, the office has interpreted its jurisdiction expansively while calling on the government to fully comply with its obligations under the OPCAT.

The directive creates a dedicated NPM unit within the Defensoría of three individuals (a political scientist and two lawyers). It also often includes a trained physician seconded from within the organisation. Furthermore, the directive issues instruction to all areas within the Defensoría to coordinate activities with the NPM. For instance the Unit for International Cooperation is to collaborate on a national education campaign on torture prevention. Generally, the NPM is to serves as an “informational hub” to strengthen the Defensoría’s work on torture prevention across all areas of protection and promotion.

The NPM Unit has a mandate to monitor legislation, executive decrees, and other standards to ensure compliance with torture prevention norms. It may also submit amparo and habeas corpus actions on behalf of persons detained illegally or where the conditions of detention do not meet minimum domestic or international standards. However, this power has been used very sparingly.

According to the annual reports, the Defensoría/NPM Unit conducted 20 visits of places of deprivation of liberty in 2007, climbing to 67 in 2009,  65 in 2010 and 41 in 2011. These include prisons, police and judicial holding cells, maximum security units, psychiatric facilities, immigration detention centres, and hospitals. The NPM has compiled a database of all places of deprivation of liberty, detention and custody as well as a chronogram of visitations. In turn, the NPM Unit can refer any matters for follow-up to the Defensoría’s Area of Defence which is, in turn, obliged to inform them of the results of any investigation.

The NPM Unit has also since 2010 issued detailed annual reports spotlighting a host of issues of concern including detention regimes in maximum security facilities, overpopulation within the prison system, denial of the right to health, vulnerable groups, especially women, the elderly, disabled and young people, inadequate food and nutrition, and a crumbling infrastructure. The Unit also details individual cases, making recommendations to the relevant authorities and specifying steps for follow-up.

The Unit has a dedicated website and has effectively deployed a publicity strategy alongside the Defensoría press office. This has resulted in media exposure of cases concerning the alleged torture of immigrants, prison detainees, as well as overpopulation in the country’s prisons.

In terms of inspections, the NPM Unit has devised a three-fold protocol for visitations including (1) exhaustive visits of more than one day in situ, (2) ad hoc visits to follow-up on recommendations, and (3) thematic visits dedicated to investigating a specific issue. Following a visit, the NPM Unit issues a report to the relevant authority detailing their findings, highlighting issues of concern, and requesting confirmation on measures taken to rectify the situation. The official is requested to acknowledge the report within 10 days of receipt.

The inspection reports make detailed reference to domestic and international standards. For instance, the Defensoría has emphasised that according to the Costa Rican Constitutional Court handcuffs may only be used in exceptional circumstances.  Detention authorities have also been directed to the UN CESCR and minimum regulations in the treatment of inmates as well as rulings by the IACHR.

These visits have uncovered violations of personal integrity and torture in maximum security installations. Visits may also respond to urgent situations, for instance in 2009 the Unit undertook an extensive investigation into the outbreak of the flu virus H1N1 in the prison population. In 2011, the Unit intervened following a deadly confrontation between inmates and prison staff. The Defensoría also has offices throughout the national territory which are directed to coordinate activities with the NPM Unit.

The NPM Unit reports that in general public authorities has been cooperative, notably the Minister of Justice has facilitated a high-level commission to monitor NPM follow-up activities.  Although DHR does not have formal authority to inspect detention facilities of the judiciary, an inter-institutional agreement has been reached. The NPM Unit may conduct inspections alongside local authority health officials who then issue their own technical reports. It has also conducted training with, among others, immigrant detention centre personnel, directors of the Penitentiary system, police officers, and public attorneys.

At the international level, the NPM Unit directive establishes that contact should be maintained with the UN Sub-Committee on Torture. In 2010, the NPM Unit work alongside the UNHCR on the issue of detention of migrants, including joint visitations and meetings with relevant authorities.

The innovation of an NPM may owe as much to Costa Rica’s regional standing as a human rights referent point as to domestic demand for such an entity. Costa Rica presents a relatively rights-respecting context in regional perspective. However, its regional “exceptionalism” should not be exaggerated (Lehoucq 2005).

A relatively stable and rights-protective setting does not diminish the importance of a functioning NPM.  The work of the Costa Rican Defensoría prior to and following designation reinforces this conclusion, highlighting compliance gaps between formal protections and actual practice, with particular attention on the protection of vulnerable groups, such as immigrants, prisoners in remand custody, the young, infirmed, elderly and women.

Notwithstanding resource constraints, the NPM Unit continues to develop and refine its operational mandate in light of best practice and lesson learnt. Indeed, its annual reports end with an reflexive overview of “lessons learnt,” including the advantage of unannounced visitations at night and weekends, the challenge of effective follow-up with authorities, the need for more logistical support, and sustaining cooperation with the Ministry of Government, Police and Public Security and the Judiciary.

[1] Katía Rodríguez, Special Protection Director in the Defensoría del los Habitantes, in interview with Thomas Pegram, 21 September 2007.

Torture Prevention and the Chilean National Institute for Human Rights

Resistance from various quarters has repeatedly conspired to undermine legislative attempts to create a robust Chilean National Human Rights Institution (NHRI).  After a protracted process dating back to the 1980s, at the close of 2009 the Chilean Senate approved the creation of a National Institute for Human Rights (INDH).  Debate around implementation of the Optional Protocol to the Convention Against Torture (OPCAT) in Chile has explicitly referred to the INDH as the designated National Preventive Mechanism (NPM). Chile ratified the Convention Against Torture in September 1988 while still under the authoritarian control of General Augusto Pinochet (1973-1990).  The OPCAT was ratified 20 years later in September 2008. Nevertheless, the resulting legislation makes no reference to OPCAT and falls short of the obligations contained therein.

The INDH was created under the Socialist government of Michele Bachelet which communicated to the UN that the NPM function would be incorporated into the new institution. However, up to this point, no NPM has been designated.  The Conservative government of Sebastián Piñera (2010- ) has not put the issue on its legislative agenda. Although the legislative project has been approved in Congress, it has been fiercely resisted in the Senate. The task of NPM has been delegated informally to the INDH. However, as the APT makes clear “its legislative mandate, budget and personnel do not meet the requirements of the role.”[1]

The INDH falls substantially short of the robust design common to Latin American national institutions and is formally ill-equipped to take on the role of NPM.  Civil society actors have voiced scepticism to the idea that the INDH is in compliance with the Paris Principles, the minimum UN-endorsed guidelines governing NHRI structures, let alone the OPCAT.

The resulting structural form of the INDH consigns the model to the outer fringes of global NHRI structures, bearing a resemblance to the Danish or German research institute variants.  In terms of autonomy, the Institute is not constitutionally entrenched, comprising seven Councillors, including two appointed by the President (Article 6).  The powers of the office are also circumscribed, with no provision to receive complaints, no inspection powers and ambiguity surrounding the office’s legal competencies (Article 3(5)).

The INDH itself has advocated for the creation of a “Defensor del Pueblo” or “Ombudsman” to strengthen the judicial protection of fundamental rights. It has also collaborated with the OHCHR regional office to organise events on implementation of the NPM in Chile. However, if the INDH is structurally inadequate to perform the role of NPM, it is worth exploring whether the institution would be suited to becoming a component within a multi-institutional NPM framework.  Its actions in defence of human rights in its brief lifespan thus far suggest that there is a strong case for incorporating the INDH within the NPM. Even if it is not formally designated, the INDH has already become a key referent point for torture prevention in Chile.

The INDH has assumed a robust position in defence of human rights on a number of high profile issues of national consequence, including nation-wide social protests, police violence, conflict between the State and the Mapuche people, and controversies surrounding the slow progress of reconstruction following the earthquake of February 2010.  In turn, the institution has been severely criticised among certain quarters of the media and the political elite.  NGOs dedicated to the prevention of torture have denounced such attacks as “revealing the partial and ideological vision of its accusers.”

The INDH has used its legislative advisory mandate to highlight inadequacies in existing torture prevention legal frameworks. Although torture is prohibited under the 1874 Chilean Penal code, the definition of torture does not comply with international standards.  In turn, the INDH has spotlighted that the military still retain jurisdiction over its personnel in cases of alleged illegal detention, murder and torture and cruel, inhuman and degrading treatment essentially nullifying protections afforded under the 1874 penal code.

The INDH does enjoy one quasi-judicial function which it has exercised sparingly, the power to submit amparos to the courts (emergency writs for the protection of constitutional rights). In August 2012, the INDH issued an amparo on behalf of a victim of alleged police brutality and, in another case, on behalf of Recaredo Galvez, the Secretary General of the Chilean Federation of Students for alleged torture by police officials.  The INDH has also, on its own initiative, sought to monitor the rights situation of those held in prison or police custody as well act as official observers in nation-wide social protests.  The importance of this work has been acknowledged by civil society actors in a context of impunity (at page 163):

“With the exception of the Director of the National Institute for Human Rights who has used her powers to inspect prisons and commissaries in response to alleged violations of torture, there still exists no entity in Chile since the ratification of the [OPCAT] mandated to monitor the police facilities where people involved in the social protests are being detained.  At the same time, society is witness to the shameless and excessive actions of the police against protestors, with cruel and inhuman treatment justified in the name of order and social peace.”

The INDH is broadly mandated to raise awareness of and respect for human rights through, among other activities, investigations, studies and publications. One line of investigation pursued by the INDH has been the prevalence of alleged crimes of torture and other violent acts by state officials.  In its 2010 Annual Report, the INDH has reported that between 2006 and 2010, the Secretary General of the National Police Force or “Carabineros” received 2,634 complaints of unnecessary violence, and 116 complaints for illegal detention.  Highlighting the issue of impunity, the INDH pointedly notes that only 29 police officials had been successfully prosecuted. In a statement widely publicised in the media in November 2011 following publication of the report “Monitoring and Registration of Police Abuses,” the INDH Director stated: “There is a lack of confidence [in the police] due to indiscriminate repression, there has been torture and detentions that do not comply with legal process, and this has diminished confidence.”

Chile displays some of the highest political, institutional and social indicators in the region and is widely viewed as an economic success story.  However, the country only emerged from a protracted period of authoritarian government and systematic human rights violations in 1990.  The legacy of this experience still hangs heavy over Chilean politics and society and human rights remains a highly politicised topic.  Human rights defenders point to a lack of progress in enhancing access to justice, especially for economic, social and cultural rights claims, and the continued exclusion of traditionally marginalised groups within Chilean society, such as indigenous communities and detainees. Chile also displays one of the highest levels of incarceration in Latin America.

In sum, there is a clear case to be made for an NPM in the Chilean context.  The INDH has surprised many observers in its robust advocacy on human rights. However, as it acknowledges, it is not equipped with adequate powers to take on the role of NPM.  It may, however, continue to serve a valuable corollary function within or outside the designated NPM apparatus. International pressure on Chile to fulfil its commitments under OPCAT is likely to grow in light of its upcoming review by the UN Committee against Torture in 2013. At its last appearance before the Committee in 2009, Chile was directed to “fully implement the Optional Protocol.”

[1] APT, “Ya es tiempo de establecer un órgano de monitoreo en Chile para prevenir la tortura y otros malos tratos,” 12 December 2011.

Contribution to UN knowledge network: HuriTALK

Given the expanded role of NHRIs in the second cycle of the UPR, what programming opportunities do you see for UN entities / UNCTs in supporting NHRIs to follow-up on the recommendations emanating from the UPR? How are NHRIs supporting the implementation of UPR recommendations?”

The relationship between NHRIs and the UPR is potentially one of mutual benefit but this is yet to be realised fully (for data on NHRI engagement with the UN system see OHCHR 2009 survey).  For the UN and member States, ‘A status’ NHRIs may offer a valuable source of information and a credible and independent voice to that of the government under review.  They may also inject some critical and honest debate into the politicised realm of the Human Rights Council more generally.  For the NHRI, participation in the UPR can contribute to the fulfilment of its principal mandate: promotion and protection of human rights on the ground

The second cycle offers an important opportunity to further institutionalise engagement.  However, it is also necessary to place this development in context and reflect on the opportunities and challenges that confront the UN and NHRIs in shaping an evolving arena of action.  For many NHRIs, the case still needs to be made as to the usefulness of UPR engagement in the fulfilment of their mandate.  For the UN and other stakeholders, careful thought needs to be given to how best to facilitate and incentivise NHRI engagement in light of competing demands and expectations placed on these institutions.

It is important to note that NHRI engagement in the first UPR cycle was limited, with many NHRIs contributing to state reports through national consultative processes, some pursuing follow-up activities to UPR recommendations, but few seeking to pursue their priorities and policies through direct participation in Geneva.  In part, this is a reflection on the outcome of the state-led reform of the Council in 2005 and resolution 5/1 in particular which:

  • Does not refer to NHRIs specifically, instead grouping them under the rubric of ‘relevant stakeholders’
  • Gives greater emphasis to the consultative status of NHRIs during the preparation of state reports at the national level than their participation in HRC plenary
  • Provides NHRIs with the ‘opportunity to make general comments before the adoption of the outcome by the plenary’
  • Permits NHRIs to attend the interactive dialogue but effectively silenced them during proceedings

Nevertheless, NHRIs did enjoy limited, but real, opportunities under resolution 5/1 to significantly influence recommendations in the outcome document of the review.  Notably, they were allowed to comment on the draft report before its adoption by the plenary session of the Council (see report by the Bolivian NHRI here).  NHRIs were also able to organise parallel events to highlight their activities, with ICC general meetings often scheduled to overlap with HRC plenary dates. Intriguingly, NHRIs are also able to comment on any state and report under review.

If this was a good start, the scales have tipped decisively with resolution 16/21, opening up new structures of opportunity for NHRIs committed to increasing their participation.  NHRIs are now:

  • Accorded explicit recognition and status among stakeholders
  • Entitled to intervene immediately following the State delegation during the adoption of the outcome of the review
  • Able to intervene immediately after the State party during the interactive dialogue – following the country mission report by a special procedure.

A question of strategy

The Paris Principles provide the departure point for NHRI design but they offer very little guidance on the crucial matter of strategy and the intrinsic value of fulfilling a mandate ‘to cooperate with the United Nations and any other organisation in the United Nations system.’ This has been left to other actors such as individual NHRI offices, the Danish Institute, the International Coordinating Committee of NHRIs (ICC), OHCHR and the now sadly defunct International Council on Human Rights Policy.  Scholars have also turned their attention to NHRI impact, such as a recent volume edited by myself and Ryan Goodman at NYU (the introductory chapter is available for download here).

Recent developments not only validate the importance of such efforts but also underline the rapid pace of developments, with elevation of NHRI status at the Human Rights Council further elevating their profile and visibility within UN structures.  Responding to this development, I currently co-lead, alongside Dr Par Engstrom of UCL, a project to strengthen the capacity of NHRIs in Latin America to engage with the UPR to promote State implementation of international torture prevention standards.  We convened a meeting of NHRIs, civil society and external stakeholders in Buenos Aires in December 2011 to explore lessons learnt and best practice in preparation for the upcoming second UPR cycle.  The resulting Meeting Declaration is available for download here.  The project continues to draw on expertise within the OHCHR, IACHR and NHRI offices with further information available on the dedicated project website.

The following highlights some key points derived from my research which may be of interest to this e-discussion:

Lessons learnt:

  1. Many NHRI officials in Latin America feel that the first UPR cycle provided only very limited opportunities for their organisations to participate in a meaningful way
  2. They are supportive of the revised procedures adopted for the second cycle and appear willing and able to actively take advantage of their new status and strengthened opportunity structures within the UPR process
  3. They are particularly keen to take advantage of the recommendations emitted in the first cycle of the review to pressure state authorities to improve their human rights performance
  4. The OP-CAT is another domain where A-status NHRI activity is increasingly visible and significant in light of designation of National Preventive Mechanisms (NPMs)
  5. A growing number of NHRIs have been designated National Preventive Mechanisms under OP-CAT and for the majority of non-designated NHRIs operating in the fragile democracies of Latin America torture prevention has long been a priority area of concern
  6. Although UPR recommendations are non-binding and lack the legal weight of treaty obligations, the evidence suggests that states nevertheless take them seriously – often more so than treaty body concluding observations. In other words, they carry political weight
  7. NHRIs must be persuaded of the value of drawing on the UPR process as additional pressure point on states’ human rights performance.  International validation of the NHRIs work and priority focus can give its domestic activity added force in obliging the state to act
  8. Complaint-handling is described as a core nucleus of NHRI activity, providing a direct interface with the citizen.  It is also a key resource in terms of identifying rights priorities, connections across disparate rights issues, and provides a barometer for assessing whether States are fulfilling their obligations
  9. NHRIs are still to be convinced that activity at the international level is worthwhile.  Stakeholders need to demonstrate concretely that by setting the international human rights agenda at the Council, NHRIs can increase the pressure on states to address significant human rights issues at home
  10. Similarly, increasing a state’s international accountability can have a multiplier effect at the domestic level by placing the spotlight on its human rights performance.
  11. NHRI officials emphasise that UPR recommendations must be clearly formulated and firmly based in the national realities of the examined country
  12. A key challenge to NHRI engagement currently is the human and financial resources entailed.  Geneva is a long way from their capitals and it is often difficult for NHRIs to justify before a domestic audience the costs of such international activities.

Best practice:

  1. Participation by NHRIs at the UPR should be tailored to the priorities of the office in question and vice versa.  Organisational strategic plans should be informed by UPR recommendations and the need for follow-up
  2. NHRIs should be encouraged to collect systematic aggregate data on the rights situation in-country using a methodology that is consistent with international human rights standards and responsive to the concerns raised in the UPR
  3. In order to make the UPR relevant to the work of NHRIs explicit connections should be made between analysis of complaints received and their relation to structural violations identified in UPR recommendations
  4. NHRIs should designate personnel to liaise with international UN agencies, having previously focused almost exclusively on pressing domestic matters, or prioritising cooperation at the regional level
  5. Efforts should be made to ensure States actively encourage NHRIs to contribute to national-level consultation on UPR reports. For instance, the State should provide the NHRI with an advance draft copy of the report in good time
  6. Some NHRIs may be reluctant to directly criticise government for fear of backlash or prevalent norms of political dependence.  Thought should be given to articulating the role of the NHRI at the UPR as constructive, complementary to, and independent of, government
  7. NHRI officials should be familiarised with UN structures, ideally through training of designated NHRI liaison officers in Geneva
  8. This would entail not only knowledge-exchange on the procedures and practices of the Human Rights Council but also more informal channels of influence.  For instance, NHRIs should be encouraged to submit information and informal advice to States on what recommendations to make in the review.
  9. Special Rapporteurs should be encouraged to engage the NHRI where it is regarded as a credible actor at the domestic level. Special Rapporteurs should be encouraged to draw on the advice of credible NHRIs in devising their country reports
  10. Initiatives should be directed to identifying UPR recommendations and, more generally, human rights priorities of common concern within or across regions to foster joint-strategies and alliances among NHRIs in their approach to engaging the UPR
  11. Another suggested proposal is to better equip the ICC to undertake such international network efforts, underpinned by an autonomous research and strategy ‘Secretariat’ responsive to the needs to the ICC and wider NHRI community
  12. Additional resources should be provided to the ICC to facilitate the travel of NHRI delegations to participate in the UPR
  13. Expectations on NHRIs as implementation vehicles for UPR recommendations must be calibrated in light of financial constraints.  The UN should encourage states to provide adequate funding to NHRIs to ensure that they can effectively participate at the international level
  14. The Council’s commitment in resolution 16/21 to explore the feasibility of videoconferencing in order to enhance access and participation is also encouraging in this regard.  NHRIs have already taken advantage of this resource during the nineteenth session of the HRC in March 2012
  15. In turn, international intergovernmental donor agencies such as USAID, DFID and SIDA should be encouraged to allocate funding to follow-up of UPR recommendations. Many NHRIs in Latin America rely on international funding for a large percentage of their rights promotion activities.

Additional observations:

  1. The scope for creative engagement by NHRIs in the second cycle of the UPR is considerable and, importantly, goes beyond a purely reactive function of implementation and follow-up to existing UPR recommendations
  2. Although we are entering the second cycle, for many NHRIs this will be the first opportunity to engage meaningfully with the process
  3. It is crucial at this stage that NHRIs are given a sense of autonomous ownership of the UPR process, with the emphasis on training at the regional/country-level and concrete demonstration of how UPR-focused activity may pay dividends in advancing their own organisational priorities and policies
  4. The UPR offers an exciting new entry-point to encouraging credible, routine and formalised participation of NHRIs within UN structures
  5. It is likely that UPR activity will have important spillover effects with NHRIs incentivised to also engage with core treaty bodies and Special Procedures, in particular the HRCttee, the CESCR and the SPT
  6. NHRI engagement at the UPR is likely to increase in importance as more optional protocols are attached to international treaties obligating states to establish domestic implementation mechanisms as pioneered in the OP-CAT (Part IV) and the CRPD (article 33).

Launch of project website – NHRIs and the prevention of torture

Today I launched with my colleague, Dr. Par Engstrom at UCL, a new research project website ‘National Human Rights Institutions (NHRIs) and Implementation of UPR Recommendations Relating to Torture Prevention’ which can be accessed here: (English) (Spanish)

The purpose of this research project, which began in August 2011, is to strengthen the capacity of NHRIs in Latin America – Defensorías del Pueblo, Procuradurías y Comisiones de los Derechos Humanos – to engage with the Universal Periodic Review at the UN Human Rights Council to promote State implementation of international torture prevention standards (CAT and OP-CAT).  NHRIs as torture prevention mechanisms are well-placed to ensure better understanding of local context, monitor follow-up and facilitate implementation of CAT obligations and their role is increasingly recognised within UN structures.  This project was initially made possible by a grant from the Human Rights and Democracy Programme of the British Foreign and Commonwealth Office.

The project has a number of objectives, including:

  1. Establish networks among NHRI and government officials, local civil society organisations and external stakeholders within the UN and Inter-American Commission on Human Rights focused on implementation of international torture prevention standards.
  1. Creation of a multimedia dissemination tool to facilitate regular communication of NHRIs and stakeholders and enhance transparency and exposure.
  1. Publication of a declaration based on Buenos Aires workshop held in December 2011, including specific action points for NHRIs on implementation of UPR recommendations relating to international torture prevention standards and State obligations under CAT and OPCAT.

The website highlights the important work of NHRIs in Latin America in the area of torture prevention and their engagement with the Universal Periodic Review process.  It is also intended as an information ‘wiki-resource’ and toolkit for project stakeholders and those with a scholarly and/or professional interest in the work of NHRIs in Latin America and elsewhere.  Towards this end, we will continue to build the website and would be extremely grateful for any electronic documentation, resources or news items that your organisation could contribute to enrich website content.

In addition to the website launch, we also issued the finalized Buenos Aires Meeting Declaration:

We believe it does justice to the impressive substance and quality of debate we enjoyed in Buenos Aires last December.

Looking ahead, the website will provide a venue for updates on new developments, events and announcements by NHRIs, project stakeholders, and partner institutions and we hope you will stay connected.

A (brief) political synopsis of the Bolivian Human Rights Ombudsman

Rolando Villena, the current Bolivian Defensor del Pueblo

Activated in 1998 under the leadership of the first Defensora, Ana María Romero Campero (1998-2003), the Defensoría quickly emerged as a powerful human rights voice from within the state.  As with many such accountability innovations that accompanied the sweeping neoliberal reforms of the 1990s, the Defensoría was conceived by its designers as a tool of modernisation and administrative efficiency.  That the Defensoría quickly and decisively moved away from the ‘neoliberal category’ to become an authoritative human rights champion is largely attributable to Romero and the election of a principled individual with strong inter-personal ties to social actors.  Various high profile acts during her tenure, including opposition to coca eradication policies under the government of Hugo Banzer (1997-2001), mediation efforts alongside the Catholic Church in the 2000 so-called ‘Water Wars’, and a decision to go on hunger strike in the wake of the shooting dead of 67 people by military forces during the ‘Gas War’ of October 2003 cemented her reputation and indeed the institutional credibility of the Defensoría itself.  This final controversial act was credited by the then sitting Vice-President as ‘[destroying] the government’s support base within the middle class’.

Underlying these cycles of violent conflict was a crisis of representation, with the privatisation of public utilities and deterioration of economic and social conditions fuelling popular dissatisfaction with faltering representative institutions.  This combustible mix provoked a situation of almost constant social protest throughout the early 2000s, a political crisis that toppled three governments in quick succession, and paved the way for the eventual election of Evo Morales, the leader of the Movement for Socialism (MAS), and a radical new political agenda.  Throughout this period, the Defensoría has withstood powerful political crosswinds to retain its status as a credible human rights actor under Romero’s successor Waldo Albarracín (2003-2008), a prominent human rights lawyer and former President of the Permanent Human Rights Assembly (APDHB) and his successor Rolando Villena (2010-present).  As Albarracín puts it, “the people know that the Defensoría is not with the government, not against the government, and not afraid of the government.”[1]

However, ensuring independence has not been simple.  The Defensor is elected by a two-thirds majority in Congress for a term of six years, enjoys legal immunity for acts carried out in the performance of his/her duties, and has broad budgetary and operational autonomy.  Notwithstanding formal design safeguards, the Bolivian office has repeatedly been subject to interference and delays in appointment.  Congress has routinely violated its legal obligation to elect a new Defensor within 30 days of the post falling vacant.  First, in October 2003 the embattled Sanchez de Lozada government (2001-2003) summarily replaced Romero with its own preferred candidate.  The collapse of the Lozada government and under intense pressure from civil society the new Defensor was forced to stand down just 11 days later.  In effect, social actors mobilised to ensure the integrity of the Defensoría and further compelled Congress to elect Albarracín to the post two months later.  Upon Albarracín’s departure in December 2008 Congress failed to elect a successor for well over a year, leaving the institution in a debilitating state of insecurity.  Rolando Villena, a Methodist Bishop and former President of the APDHB, was finally elected in May 2010 with the support of the governing MAS party.  Notwithstanding initial concerns, Villena has proven to be a serious voice for human rights, unafraid of criticising government policy.

A new political context has facilitated a more expansive rights agenda; but the turbulence of the period has also presented profound challenges to the integrity of the Defensoría.  The issue of human rights has become one more arena of intense contestation between highly polarised political forces in a context of endemic social conflict, an increase in what the Defensoría has termed the ‘racialisation’ of political violence, and attempts at secession by departments in the East.  Social actors aligned with the Morales government have gone so far as to question the need for a Defensoría “when we [the people] now defend the community”.[2] In turn, those opposed to Morales have repeatedly attempted to co-opt the Defensoría to their own partisan ends.  Some argue that the price of independence for the office has been a bunkering down, a lowering of its public profile – with Albarracín criticised on occasion for not confronting the government on high-profile politically-charged human rights issues. Albarracín conceded in interview in 2008 that “the environment is not favourable, as the Defensoría we are always in the eye of the storm disliked by both government and opposition for not taking sides.”[3] This claim seems to be borne out by the critical assessment of Albarracín’s tenure by the Vice-President, Álvaro García Linera:

“The role of Defensor demands not only being on the side of civil society, but also a regard for strengthening the State and the rule of law…This [Albarracín] failed to do, the State was under assault, it was subject to mutilation and division, the Defensor should have defended the State as guarantor of the liberties and rights of the people.”

A number of factors emerge from this brief synopsis which are worth highlighting.  Firstly, as with many other cases in the region, leadership is central to understanding the experience and impact of the Bolivian Defensoría. The ability of the Bolivian Defensoría to retain independence is largely attributable to the personal qualities of Romero, Albarracín and Villena.  It is also critical to the strategic direction of the institution and its relations to other actors within and outside state structures – especially powerful and mobilised social movements.  Although Romero liked to characterise the Defensoría as a bridge between state and society, such a bridging function is in practice perilous and always hostage to partisan forces on both sides of the divide.  Given such conditions, advancing a human rights mandate will inevitably be shaped by powerful external, cross-cutting pressures and the often incompatible demands and expectations that arise.  Nevertheless, the Defensoría has attempted imperfectly, but importantly, to address these new and competing demands.

* Extract from forthcoming paper.  Please do not cite without permission of the author.  Comments gratefully received.

[1] Waldo Albarracín, former Defensor del Pueblo (2003-2008), interview with author, La Paz, 15 July 2008.
Sonia Cuentas, functionary in the Bolivian Defensoría del Pueblo, interview with author, La Paz, Bolivia 17 July 2008.
Albarracín in interview with author, 15 July 2008.