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24 Sampson (2009, 70-71) gives an excellent account of how lawyers from the CIVISOL foundation argued to the
Constitutional Court that Cali’s recyclers had been shut out from all three potential avenues of accessing waste.
2008 Case: Rights of Displaced Recyclers in Cali
In 2008 a second attempt was made to outlaw the practice of collecting recyclables from
the street nationally, this time on environmental grounds. Law 1259 imposed a fine of up to US
$500 for opening garbage from bags or cans in public or transporting trash in non-motorized
vehicles, once again threatening most recyclers’ sole survival niche (Samson 2009, 70). The
ANR solicited assistance from CIVISOL, a new foundation created by lawyers involved in the
2003 cases, who recommended an ambitious line of attack. Rather than challenging Law 1259
through judicial review, CIVISOL intended to demonstrate to the Constitutional Court that the
law fit into a broader pattern of exclusion, then compel the court not only to revoke the law, but
to mandate sweeping action towards protecting and formalizing the recyclers’ trade. Moreover,
CIVISOL sought “to obtain clarification, once and for all, of the scope and breadth of all waste
pickers’ rights in Colombia, whether in Cali or in Bogota, whether surviving through recycling in
a waste dump or by street collection” (Ruiz-Restrepo 2010, 104). This strategy would require
use of the tutela (writ of human rights)—a special court order created by the Constitution of
1991 that mandated swift state action in response to human rights crises that could not be
addressed through other channels.
CIVISOL soon learned that over 100 recyclers in Cali had already filed tutelas after their
eviction from the Navarro Dump (coincidentally, where Birkbeck conducted his research in the
1970s), and thus began collaborating with them on a strategy to prove a broad pattern of rights
violation by linking the tutelas to the case of Law 1259.30 In June, 2008, the publically owned
Navarro Dump was closed and replaced with a private landfill, the last step in a comprehensive
privatization plan for Cali’s waste management system. The 600 recycler families who worked in
the dump—some since its inception in 1967, had been promised compensation for their loss of
livelihood and help finding another. The assistance never materialized, provoking the recyclers to
demonstrate at the dump on the day of its closure and occupy a historic church in protest three
months later (Samson 2011, 70). CIVISOL argued that though there were legitimate
environmental and health rational for closing the Navarro Dump, the recyclers’ exclusion from
the new dump clearly violated the Constitutional Court’s 2003 ruling that recyclers were to be
included in all waste procurement processes. Moreover, Law 1259 blocked recyclers’ access to
waste on the street, leaving many with no means of subsistence. The court sided with the
recyclers, overturning the provisions in Law 1259 that affected their livelihoods and ordering the
31
30 Telephone Interview with Adriana Ruiz-Restrepo. May 7, 2012.
formalization of all of Cali’s recyclers. The court also declared the right of the recyclers to be
formalized as entrepreneurs, rather than employees of large factories:
It must not be forgotten the fact that the waste pickers, although informally, acted
as entrepreneurs. Therefore, an appropriate alternative, rather than converting them
into employees of the big recycling companies, is providing them some space to keep
acting as entrepreneurs, promoting their organizational capacity and strengthening their
capacities and opportunities to appropriately carry out the activity that they had
developed throughout time.31
The Court mandated the creation of an ad-hoc committee to design a socially inclusive waste
management program for the city.
The Role of the Social Movement
If the recyclers have won their key victories in court based on human rights claims, what
is the purpose of mobilization? What is the division of work between the social movement and
its lawyers? I ask these questions to Ruiz-Restrepo who says that while she designed many legal
arguments, cooperative leaders created the vision behind them:
I am a legal public policy translator of the needs and frustrations of them. But who had
the vision of saying we need to [compete in the tendering process]? That wasn’t me. I
didn’t go looking for waste pickers and saying hey you have a chance here. That was
Cecilio and Olivia [the ARB leaders]. So the initiative is theirs completely. That’s the
social movement. They had to detect and spot change, they had to understand their
32
31 English Translation of Constitutional Court ruling T-291-2009 which officially recognized waste pickers as
entrepreneurs and defended their right to work as such, pp. 61
environment, that their environment changed, that the opportunities narrowed, and that in
that little tiny hole—they had to get in. And they had to look for lawyers.
Ruiz-Restrepo credits the ARB leaders with aiding many other elements of the legal strategy,
such as locating the Cali recyclers who had filed tutelas and demanding rights as entrepreneurs.
Also, Ruiz-Restrepo argues that the social movement may influence judges through
demonstrations of what Tilly (2008) terms “WUNC” (worthiness, unity, numbers, and
commitment):
These cases would have [hypothetically] been won in the abstract because they are about
the reasonableness, the rationality, and the constitutionality of reform. So your rights are
your rights—it doesn’t matter if you’re one or 300,000 people. Now, that is in theory of
course. It’s not the same if you have 300,000 people in front of the court.
Indeed, recycler organizations often show up to public hearings en masse and draw at times upon
other classic “social movement repertoires” such as rallies, marches, and participation in public
meetings (Tilly 2008).
During my field research, however, I was surprised by the sparsity of such WUNC
displays. Despite being in the midst of perhaps the highest stake court battle in their 25-year
struggle, the ARB only organized two public protests in 2011.32
Shift 1—rise of civil society
Birkbeck (1978, 1184) argues that due to their extreme poverty, recyclers cannot build
and sustain organizations without external support. This is still the case today. Adriana RuizRestrepo, a lawyer who has worked with ARB on a probono basis since 2002, likes to point out
the Catch 22 that recyclers lack the basic resources to build organizations and enterprises needed
to attain such resources. Ruiz writes:
15
Organization depends on three resources that are very scarce when living in poverty:
time, space and money. The person living in poverty invests all available time seeking
some income to ensure personal and family survival; lack of land and/or housing
translates to an absence of permanent premises where to convene and… unit[e] with
likeminded workers, citizens or trade partners; any income created is money that is
primarily used for satisfying pressing basic needs and, hence, never enough so as to
invest in creating and running a business establishment or a civic-solidary organization,
whose utility is still an unproven risk. (Ruiz-Restrepo and Barnes 2010, 95)
What has changed since the time of Birkbeck’s writing is not the level of recyclers’ dependency
on outside support, but the availability of such support. As in much of the world, funding for
civil society organizations in Colombia has exploded over the past thirty years—fueled by
democratic openings, the demand for social services in the face of state cutbacks, the increased
polarization of wealth and resultant philanthropy, and breakthroughs in communications and
transportation technologies. Through a great deal of resourcefulness, the Colombian cooperatives
tapped into these resources, and today, they secure millions of dollars’ worth of loans, donations,
and in-kind services from corporations, government agencies, transnational development
organizations, foundations, and NGOs.
Though the recyclers’ have achieved astonishing legal victories with limited displays of
WUNC, their ability to take advantage of these victories has at times been encumbered by an
actual lack of unity and commitment. In a future paper, I will examine how organizational
weaknesses and divisions among recyclers—which have been promoted and exploited by the
municipal governments of Cali and Bogota—have undermined the implementation of the
Constitutional Courts’ rulings.33
33 Ruiz-Restrepo (2010, 115-120) gives a distressing account of implementation challenges In the Cali 2009 ruling.
I limit my present commentary to noting that members of the Court and the ARB are both disappointed with the execution of the Courts’ orders to date. The
chief clerk who worked on the Constitutional Court’s 2010 ruling on the tendering of the Doña
Juana Dump in Bogota, told me that he felt that the Court had handed the recyclers “an atomic
weapon,” but the recyclers had “lost it” as a small group of them had sold out the rest