Martha Chen
Chris Bonner
Mahendra Chetty
Lucia Fernandez
Karin Pape
Federico Parra
Arbind Singh
Caroline Skinner
(….)
This Paper
The purpose of this paper is to provide a summary analysis of five case studies prepared for the
2013 WDR team that illustrate why and how the representative voice and economic rights of
urban informal workers should be promoted.
4
Section 1 provides a statistical overview of the
urban informal workforce, including: the official statistical definition of informal employment,
recent data on non-agricultural employment (a proxy for urban employment data which are not
readily available), and the first-ever published data on the four groups of urban informal workers
featured in the case studies and this paper. Section 2 explains what platforms for representative
voice and what types of economic rights urban informal workers need—and demand – and why
the voice and rights of these workers is of such critical importance today. Section 3 presents a
summary of the five case studies:
Self-Employed Women‘s Association of India, including its role in helping to build and
strengthen organizations of informal workers around the world
National Policy and Law for Street Vendors in India
Legal Cases for Street and Market Vendors in Durban, South Africa
Constitutional Court Judgments for Waste Pickers in Bogotá, Colombia
Campaign for an International Convention on Decent Work for Domestic Workers
(….)
ANNEX I
WIEGO CASE STUDY FOR 2013 WDR
Constructing an Inclusive Model for Public Waste Management Based on the Legal
Empowerment of Colombia’s Waste Picking Community
Federico Parra,10 Lucía Fernández11
CONTEXT
Waste Picking in Bogotá
Bogotá, the capital of Colombia, is a city of more than eight million inhabitants. As the country‘s
largest urban center, it registers highs levels of consumption, which are in turn reflected in the
large degree of waste production. The city only has one landfill for final disposal, which receives
daily 5,074 tons of waste composed mainly of organic waste (64 per cent), along with dangerous
materials and recyclable waste (metals, cardboard, paper, plastic, and glass).12 (…) Bogotá does not have a formal system that would allow for the recuperation of recyclable waste.
(…)
Rationale for Waste Pickers’ Legal Actions
(…) This process of legal empowerment and struggle for access to recyclable materials, and thus for the right to work, has been supported in the last decade by civil society organizations, university students, allied pro-bono lawyers, and non-profit organizations. In particular, CiViSOL, the Foundation for Systemic Change, is an NGO that has been instrumental in supporting Colombia‘s waste picking community in their legal challenges.19
19 CiViSOL is a civil society, non-profit legal entity with no political affiliation that operates as a foundation in New
York and Cali, Colombia. It was established in 2008, but builds on experience accumulated over many years,
dealing with different initiatives of legal empowerment on behalf of the most vulnerable sectors.
(…)
Legal Process
As a result, in December of 2002 the Association of Waste Pickers of Bogotá, supported by
CiViSOL, filed the first action of protection arguing that such terms of reference (related to both
experience and capital) excluded the organized waste picking community, lacked an affirmative
action approach designed to reduce the community‘s vulnerability and unequal status, and
violated minimum vital rights (in this case, the lack of access to waste was conceived as a
vulnerabilization that threatened the waste pickers‘ access to the minimum requirements of life).
This action of protection was denied in both the first and second court instances, by the 43rd
Penal Municipal Court and the 1st Penal Court of Bogotá, respectively. The reasons given were
as follows: 1) all administrative actions are considered legal actions; and 2) the feasibility of
affirmative actions in favour of the waste picking community could not be presumed because
they could be detrimental to the private bidders whose suitability to deliver a public service
provided the municipal government with confidence. It is worth mentioning that this dual
argument of first opposing the action and then privileging the well-being of the majority, as
opposed to the rights of vulnerable minorities, had already been used in Bogotá in the cases of
small transport workers and street vendors.
The ARB then filed the case before the Constitutional Court in August of 2003. The Court‘s
ruling concluded that Bogotá‘s municipal government and the UESP, through the
aforementioned administrative action (the tendering of bidding terms of reference), had violated
the basic rights that the waste picking community had to due process, equality, and work, and the
principles of acting in good faith. Therefore, article 3 of the ruling T-724 ordered, ―(…)as
related to the terms of article 24 of Decree 2591 of 1991, the Public Service Executive Unit of
the Capital District of Bogotá, or any other entity in the District that would be relevant, to
include affirmative actions in favour of Bogotá’s waste pickers when it comes to all future cases
regarding the contracting out of public sanitation services, given that the activities they perform
are related to those services. This shall be undertaken in order to achieve real conditions of
equality and to enhance the fulfilment of the State’s social responsibilities. Under no
circumstance should the omissions vis-à-vis Bogotá’s waste pickers, as found in the Bidding
Process No. 01 of 2002, be repeated again.”
This legal decision, considered by the ARB as the cornerstone on which to build the defense of
waste picker rights, allows for an analysis of Colombia‘s constitutional order and its rationale, as
well as of the mechanism of action of protection—in particular—and the players that were
involved in it. The Political Constitution of Colombia, enacted in 1991, promotes the
establishment and guarantee of a just social order, which in turn implies, from a human rights
perspective, that all citizens of the country should be able to exercise those rights. This is
embedded in paragraph 2 of Article 13 of the Constitution, which says: ―the State shall promote
the conditions to make equality real and effective, and shall adopt measures that benefit
discriminated and marginalized groups.‖ This, and other rulings of the Constitutional Court,
clearly recognized the vulnerability and conditions of inequity experienced by the waste picking
community, together with the need to implement policies designed to overcome these inequities.
Constitutional Rights as a Legal Strategy
The judicial actions and rulings, amongst others, are mechanisms used to secure and guarantee
the formation of the aforementioned just social order. Specifically, actions of protection
constitute judicial recourses that seek the immediate protection of rights guaranteed by the
Constitution against any transgression by public authorities or individuals. This 2003 ruling, as
well as those that followed, is inscribed within the doctrine of Social Constitutionalism, which
confirms the formal equality ingrained in classic liberalism by recognizing that there are
conditions of inequity that arise from historical processes of social and ethnic discrimination,
class hierarchies, etc. These discrepancies play an important role in denying the full exercise of
rights to some segments of society. If these discrepancies become restrictions for the full exercise of rights by a specific social group and undermine the establishment of a just social
order, then the State along with society must undertake measures to reduce or eliminate such
restrictions, or allow these groups in ―conditions of inequality and inequity‖ to achieve the
necessary conditions for their rights to be fully and effectively exercised. Affirmative actions
respond to this logic.
Outcomes
The law has worked in the case of Colombia‘s waste pickers, especially as a means to reduce
poverty20 and as a gateway to open opportunities to favour the waste picking community. Waste
pickers of Colombia have achieved a significant victory. For the past 11 months, the Colombian
waste pickers and allies have been fighting a US$1.37 billion public bid that would have taken
the role of recycling from the informal workers and handed it over to private companies for a
ten-year period. Remarkably, this entire process has been spearheaded on behalf of the ARB by a
waste picker, Nohra Padilla who has worked as a waste picker recycling materials since age
seven. She has become not only an exceptional leader in the region, but also a citizen who
advocates for her rights, and those of her waste picker comrades, like a professional lawyer
would.
These efforts resulted in a major victory by Bogotá‘s waste pickers in December of 2011, when
Order 275 of the Constitutional Court not only halted a billion-dollar bidding process for waste
collection and city sanitation, but also ordered, for the first time ever, that the municipal
government implement a model of solid waste management that fully integrates the city‘s entire
waste picking community.
However, the court gave the ARB three months (ending March 31, 2012) to present the
municipality with a concrete proposal on how they wanted the waste picking community
integrated. With the support of WIEGO21
and other allies, ARB and the Waste Pickers Trade
Union Pact formulated a technical, operational, economic, and political and social proposal for
the management of Bogotá‘s public waste service that included the entire waste picking
community. This was submitted to the Constitutional Court. Two days later, the District in
charge of managing the public service of the city presented their official proposal, which
contained schematics for inclusion drawn directly from the ARB proposal but didn‘t incorporate
all the demands to create a complete agreement among both parties. Thus the waste pickers will
continue legal action aimed at securing their sustainable livelihoods through a properly
negotiated agreement with the help of the Constitutional Court.
20 This was stated in a July 2011 presentation at a CiViSOL Seminar in Colombia by Adriana Ruiz Restrepo, a
lawyer who has performed as a legal advisor to waste pickers in the last several years. Her work, combined with the
organizational empowerment of ARB, forged the remarkable legal victories summarized in the article.