Who were the disadvantaged in this case?
Waste recyclers (usually families with children) live in extreme poverty. They survive by collecting garbage, which they use, if they can, to satisfy their own needs. The remainder of the trash is separated, classified and sold to industrial recyclers. Usually they earn less than a dollar a day for this extremely hard work, and they subsist on the waste of society. In 1996, a study conducted by Colombia’s Ombudsman Office of the nation’s five largest cities found that 14%
of waste recyclers were between 8 and 18 years old.ȱȱ69 % of these had been surviving from this activity for more than a year, 22 % were illiterate, 65% had left school to work, and only 13% were currently enrolled in school. Children waste recyclers earn an average of 15 to 45 dollars per month and 58 % of them contribute some or all of this money to the household.ȱȱ After a general strike of Bogotá’s cleaning and waste management services, the Administration
of Bogotá issued an urgent appeal to the recyclers to help the city manage its waste disposal.The Waste Recyclers organized themselves in response to the cityȇs plea and helped mitigate what could have been a major sanitary problem. After demonstrating such successful organizational capabilities, the recyclers boosted their cooperative movement and started preparing to participate in the upcoming bidding process for municipal cleaning and waste
management services. Their entry into the business market, and subsequent competition in the bidding process required two constitutional actions to remove impediments preventing the recyclers from acting as entrepreneurs and, moreover,ȱ ȱ exploring their human rights to sustenance and livelihood.
What was the innovation, and how did it improve access?
In reforming its waste management system, the City of Bogotá intended to select six organizations responsible for cleaning and sanitation services through a process of competitive bidding. The recyclers had already organized the Asociación de Recicladores de Bogotá (ARB), a registered and accredited association with strategic partnerships to investors that gave the recyclers the financial backing necessary to put in a bid for contracts with the city. The ARB is a
nonȬprofit organization serving as an umbrella group for 25 individual waste recycler cooperatives. The ARB began its work as a public service provider by contracting with neighboring municipalities or the city of Bogotá.ȱȱHowever, there were a number of legal and administrative impediments preventing the ARB from entering the business sector in the capital city itself, which had to be overcome by two separate constitutional actions. The first was a
constitutional review of the law impeding access to market, and the second was a Writ of Human Rights Protection regarding the lack of substantial competitive opportunities for the organized poor in the bidding process. First, according to Colombian Law 142/94, access to the public service market was limited to stock corporations (which are forȬprofit organizations) or to industrial and commercial enterprises of the State. In practice, this provision prevented the ARB — anȱȱassociation of nonȬ profit and solidarity economy cooperatives — from extending its waste management activities from smaller municipalities into Bogotá or other major Colombian cities. Naturally, these
smaller municipal contracts were less lucrative than those available in Bogotá itself, perpetuating the ARB member organizations’ marginal livelihoods. What is more, this law privatized the recycling activity which has been the Waste Recyclers’ only means of subsistence in the city for the past 50 years.ȱȱUnderlying this legislation is the assumption that profitȬmaking organizations must be more effective than nonȬprofits, and that nonȬprofits occupy themselves
with community building for the poor and should not be interested in big markets or substantial amounts of money. This provision has subsequently been declared unconstitutional, and its terms have been reinterpreted.
A second legal impediment to the recyclers’ livelihoods was a National Decree signed in 2002, which determined that all garbage and waste, once outside the house or building of the citizens who produced it, was no longer municipal property but was the private property of the corporation holding waste management concessions. The waste recyclers’ extremely marginal modus vivendi was thereby not only disregarded, but was moreover criminalized. While no
charges were ever brought against waste recyclers for collecting garbage, this Decree threatened their livelihoods and caused considerable psychological stress and anxiety. The provision was derogated.
A third obstacle only emerged once the terms for Bogotá’s waste management bidding process were published. The demands placed by the Administration on contractors bidding for disposal rights were so narrow that the ARB was deprived of the opportunity even to compete in the bidding process. The Constitutional Court concurred with the ARB’s claims and furthermore recognized the need for affirmative action to encourage the entrance of waste recycler
cooperatives into the industry of municipal cleaning and waste management. What were the obstacles you encountered? Because the Waste Recyclers suffered from systemic exclusion due to a grid of failures, it was
extremely difficult to prove discrimination in ordinary tribunals. To overcome this obstacle, we were forced to find a multilateral strategy of argumentation based on rules and principles, a tactic that was required a great deal of time, effort, and sincere commitment.
What were the results of the innovation?
By taking a constitutional approach and emphasizing the right to equal treatment of forȬprofit and nonȬprofit organizations under the law, ARB’s lawyers paved the way for recognition of waste recycler cooperatives as important market actors in Colombia. In filing a Writ of Human Rights Protection, the ARB used legal means to challenge the City of Bogotá’s unfairly exclusionary bidding process. In this case, the Constitutional Court became an important means
of recourse for a disadvantaged group seeking access to their basic human rights.
Adriana RuizRestrepo has a consultancy firm on law, governance, and social innovation in
Bogotá, Colombia. She has extensive experience in grassrootsȱ ȱ and civil society organizations
both within Colombia and internationally. In addition to her work in Colombia,Ms.Ruiz Restrepo is currently a consultant on public law and civil society for the Secretariat of the High
Commission for Legal Empowerment of the Poor, a global independent organization coȬchaired
by Madeleine Albright and Hernando de Soto, and endorsed by the United Nations.ȱ ȱIn this
capacity, she is also responsible for overseeing national consultations on legal empowerment of
the poor in 25 countries around the world. Before joining the Commission, she was a consultant
and National Project Coordinator for the United Nations Office on Drugs and Crime (UNODC)
Pilot Project in the Americas for Combating Trafficking in Human Beings. As Project
Coordinator, Ms. RuizȬRestrepo negotiated and advanced the implementation in Colombia of
the UN’s protocols for ending the exploitation and trafficking of people, and especially of
women and children. She has also worked with a range of civil society groups focusing on
social justice for the disadvantaged in Colombia and abroad. She has presented and written
widely on civil society and the law. In additional to her postȬgraduate studies in Political
Science and Administrative Law, Ms. RuizȬRestrepo is pursuing a PhD. at Paris II (PanthéonȬ
Assas) University and is studying NGOs in International Development and Advocacy and
Public Policy for Social Change as a nonȬdegree student at the New School for Social Research
in New York.ȱȱShe also holds a law degree from Los Andes University in Bogotá.