2013, New York, CIVISOL
Original Unabridged Version. The summary published by ESCR-NET is available at http://bit.ly/2mbD2WW
Motion to enforce ruling T-724/03 and Supervisory Decision / Auto de Seguimiento 268/ 11 filed on July 28 of 2011 against the UAESP- Bogota District Capital by the original petitioner of T-724-03. Part of a litigation strategy that included a Motion in Contempt by another organization of waste pickers of Bogota and a Writ of Tutela (injunction) filed by a petitioner acting as lawyer, citizen and public utilities user, joined by eight more organized and unorganized waste pickers living in poverty and working in informality in Bogota, also filed against the local level UAESP (Executive Unit of Public Utilities of Bogota) and at the National Commission of Potable Water and Basic Sanitation Regulation (CRA). Only the Motion to Enforce was formally accepted by the Court through Auto 180 of August 11, 2011. The tender at issue was preemptively suspended by Auto 183 of August 18, 2011 and all arguments and evidence of the legal strategy were substantially reviewed, accepted and developed by the Court. Auto 189 of 2011 also incorporated all other stakeholder arguments supporting or not the constitutionality of the effective inclusion and formalization of informal waste pickers in waste management as per T-724 and T-291-09. The case was assigned to the Third Revision Courtroom of the Constitutional Court of Colombia; Supervisory Decision or Auto 275 of December 19, 2011 declared the waste management tender without any binding effects and ordered the District level UAESP to amend it in coordination with the National Level CRA.
Country: Colombia
Thematic Focus: Poverty, privatization, right to Livelihood, urban issues, right to work, right to entrepreneurship, Public utilities, development, right to water and sanitation, Public Procurement, Tenders, equality and nondiscrimination, right to life, minimal subsistence level, enforceability of escr, Obligation to adopt special protective measures, justiciability and Enforcement of ESCR, Realizing ESCR of vulnerable population, nonprofit organizations, social and solidarity economy, Informal Economy, Affirmative Action, Special treatment of disadvantaged groups, Progressive realization/non-retrogression.
Forum and Date of Decision: Third Revision Courtroom of the Constitutional Court of Colombia, December 19, 2011.
Summary:
(1) By 2011, and with the 7-year waste collectors’ contracts finalized, the UAESP opened once again an international public tender for procuring 6 exclusive contracts for cleanliness and waste management services in Bogota. In addition to waste management statutory law, as per the ruling T-724-03 and its affirmative action, informal waste pickers had to be included in such public procurement; moreover as per ruling T-291-09 and its affirmative action such inclusion had to formalize waste pickers by occupation through their pre-existent organizations as entrepreneurial public utilities providers of inorganic waste collection and elimination in view of industrial recycling. Per Supervisory Decision or Auto 268-10 the Court had accepted to make the cession of Corporate shares not a market incentive but a legal admissibility condition, ordered the inclusion of umbrella or second degree nonprofit organizations and not only solidarity economy grassroots organization of waste pickers and requested the tender to increase the bidders offer of recycling work opportunities in the land fill. For this new international al public tender for the Waste Collection, Urban Sweeping and Cleanliness of Bogota (LP001/11) the UAESP designed and the CRA approved bidding documents.
The tender established that organic refuse collection would be awarded in exclusive public service contracts for a 7-year period, while inorganic household refuse would be excluded from the tender as it remained free market (unregulated), i.e., unorganized grassroots waste pickers of Bogota (approximately the 80%) could continue to collect waste on the curb. The tender foresaw also that all inorganic refuse collected in the city of Bogota (8 million inhabitants )by waste pickers organized or not, concessionary partners or not, and not given in concession as a public service but left to the free market by UAESP and CRA, was to continue to be transported by all waste pickers to the thousands of multilevel private intermediary warehouses within the city that intermediate and stockpile waste for the bottling and packaging industry and other national and multinational factories needing to stock and buy recyclable waste from waste pickers to use it as cheap secondary commodity for industrial production based on household and commercial recycled and separated waste.
Within the LP001/11 the affirmative action for waste pickers formalization was established to allow any umbrella or Federation of waste pickers organization without distinction incorporation, be it newly created or traditional with waste pickers by occupation or not enter a raffle to become a shareholder of any of the Waste Corporations rewarded with public waste collection contracts. UAESP would match the 12 Umbrella organization authorized by UAESP only to enter a raffle with the 6 Areas of waste concession and new concessionaires. They would then join to become a new company in which waste pickers were equity owners, but without any right to sell shares without UAESP authorization; in other words, the corporation could not capitalize or financially seek to exclude the federated waste picker’s organizations shares in the new waste concession company, nor this cede shares without the UAESP´s local government authorization. Waste Management Multinational and National bidders were admitted to the tender process only if their offer provided for 5% of its equity shares to be given to an umbrella organization of waste pickers selected by raffle; full points on the tender were to be granted to those parties giving a higher percentage of shares to waste picker organizations. Bidders’ offers announced the cession of shares to an undetermined waste pickers´ organization to be assigned by raffle, up to a 70 percent.
(2) After ineffective participation in the administrative tender process, litigation strategy pointed to the Court that inclusion in the tender was simulated and completely ineffective for poverty reduction of the occupational group of informal waste pickers by occupation and opened up avenues for corruption. It was also argued that although the authorities had separated the organic waste collection route (to the landfill) from the inorganic waste route (to classification for recycling) all refuse without distinction was the object of the State duty and Citizen right to sanitation as a public service of constitutional ranking. Besides the contractual clauses of waste picker’s formalization as entrepreneurial public utilities providers were improvised, didn’t positively discriminated the waste pickers by occupation, traditional poor and informal only and was detrimental to other individual and collective rights and freedoms in the country such as association and enterprise. Additionally, the tender was ineffective as an inclusion mechanism because grassroots waste pickers would still be collecting and transporting inorganic refuse to the privately owned warehouses of the industrial intermediaries in a private market. As corollary it was alleged that eventual dividends in a concession contract are not an adequate measure to provide for the minimum subsistence level of the extreme poor; that nay case being a shareholder was a proprietary solution and not an entrepreneurial one as claimed and ordered in T-291-09 for an occupational group trapped in poverty; that no type of contract whatsoever was visible whether for entrepreneurial services nor employed labor, which meant that it was indecent labor of the poor obtained by either “triangular” employment relationship or authorizing the use of forced labor by hunger. In identical sense no retribution for waste collection and classification for elimination services nor wages-in grace of discussion- prospected by UAESP or CRA, that left all payment and survival of the informal waste recyclers in poverty of Bogota to the forces of the market.
The Court found that Tender´s design violated the freedom of enterprise and association: dividends were contingent upon profits and in any case did not timely secure the urgent minimal subsistence of waste pickers. Nor was there any affirmative action to include waste pickers in accordance with their customary trade and economic status, as any organization of any number of waste pickers associations could unilaterally be turned by the UAESP into a Waste corporate shareholder. In sum the process for preparing the inclusion was questionable, the inclusion was found to be economically ineffective and federated waste pickers organizations were not in the least entrepreneurial nor formalized as public utilities providers; the tender also additionally compromised the public waste management by leaving it partially relegated to the free market instead of planning the collection of both organic and inorganic refuse as an articulated public service awarded in exclusivity. By leaving out inorganic refuse or potentially recyclable materials from the terms of the tender contracts, waste pickers could not enjoy secure access to waste their livelihood demanded.
Because the relevant authorities did not comply with the Court’s orders and affirmative action of rulings T-291-09 and T-724-03, nor the recently issued Supervisory Decision or Auto 268 of 2010, the Court found the tender to have no binding effects and required the authorities to redraft it entirely. It also provided more specific orders and criteria for Bogota´s UAESP to follow in coordination with the National Commission of Water and Sanitation for the purpose of determining the tariff or price compensation for waste pickers’ work as entrepreneurial public service providers of inorganic waste management. More specifically, the Court acknowledged that while it is impossible for the State to meet every citizen’s needs immediately, given the political, economic, and environmental constraints facing Colombia, State agencies have a constitutional duty to progressively realize such needs. The Court ordered the UAESP and the CRA to develop an outline of short term objectives, including concrete, qualified, verifiable and measurable actions based on the Court’s criteria, and submit both the CRA and UAESP plans to the Court by March 2012.
Enforcement of the Decision and Other Outcomes:
Note: Arguments for change and protection granted by the Court began with prior constitutional decisions T-724-03, C-741-03 and T-291-09. Supervision to the precedent and judicial affirmative action for waste pickers’ inclusion through formalization as municipal waste management public utilities providers was supervised by prior Auto 268-10 and this Auto 275-11.
As of May 2013, no public tender has been opened by Bogota city / UAESP; organic waste collection has not been given in concession or inorganic or recyclable refuse adjudicated for waste pickers as autonomous entrepreneurs of the solidarity economy and for structural poverty reduction. Designed by the Bogota UAESP it has been rejected by the CRA twice, the lack of coordination between the executive branch of power in the national and local level has resulted in the impossibility of implementing effectively Court orders. Within this frame of sanitation chaos due to state inaction, lack of articulation, and reinterpretation of the affirmative action, Bogota´s mayor advanced ideological arguments to create a new public company (as occurred following the Cali case in 2009) named Aguas de Bogota that would depend form the Enterprise of Aqueduct and Sewage of Bogota-EAAB to directly operate inorganic waste collection augmenting it is the way for compliance to Supervisory Decision 275-11 and Court´s orders to “incorporate” waste pickers organizations to public service. Hence, the collection of organic refuse is not privatized any more by concession but now subcontracted by the Mayor and the EAAB with the same former national and multinational concessionaries of organic waste collection. With regard to the inorganic or recyclables waste collection route, the scheme advanced is a triangular employment relationship that is controlled by the Mayor through the 20 localities’ mayors of Bogota who personally supervise the weight scales of the 1500 private warehouses or industrial intermediaries spread through Bogota, and that via NGOs help Bogota localities mayors create “civil society organizations” of waste pickers; only two waste pickers organizations may become (ORAs) an Organization of Authorized informal Recyclers per locality of Bogota. Instead of creating formal infrastructure for supporting the public collection and classification of recyclables for elimination by commercialization to industries as established by Decree 1713 of 2002and to be concessioner for the entrepreneurial and operation of waste pickers by occupation and in solidarity economy as ordered by T-291-09, and as public service providers of public sanitation in the capital the District, the Mayor has opted to formalize the “public” sanitation infrastructure:. Multinational buyers and their 1500 intermediary private warehouses buying from informal routes of some old and new federated organization of waste pickers. Additionally, poor waste pickers are in some undetermined and unstable way compensated not by a contract of any type by notices of monthly payments via text messages that, in fact, make them open bank accounts and buy cellphone plans. As for April 2013 only 700 out of 15,000 listed waste pickers have been able to receive such pay and might receive receive waste collection trucks from the Mayor’s office. No established and justiciable contract for waste pickers, either as service provider’s entrepreneurs or public/private employees, no reform of the national tariff formula for financing a new sanitation route and its retribution to waste pickers operation it has been established by the National CRA either. Mo measure to guarantee determine and compensate decent work as established by the Colombia constitution or the ILO conventions has been adopted.
Since early 2012, one of the Federated organizations of waste pickers is now leading and advocating for the Mayors scheme of free market of refuse transactions and implanting a “non-positively discriminatory” affirmative action but an enlarged affirmative action for legalizing the full recycling value chain. Prominent International development ngos and even multilateral multimillion funds support such scheme of “public” sanitation by private free market forces. The Pacto Gremial or Union of Recycling Chain Actors for defending the business of recyclable refuse seek to approach refuse containing glass, plastic, scrap metal, cardboard and paper as a commodity only instead of a priority of public hygiene. Other Federated or grassroots organizations of waste pickers by occupation organizations now have higher competition for accessing waste than ever, less material given freely to them and to earn a living form, and are being currently suffocated by transactional costs to survive as an “authorized waste picker organization” and “public utilities provider” within the “formal” marketization of trash.
In parallel with the Cali case, CIVISOL once again asked for a National Audience to clearly establish the private stakes behind an increasingly forced public-private reinterpretation of the jurisprudence, thereby undermining the formal enjoyment of waste pickers’ social and economic rights by any type of legal contracting for waste pickers. The Constitutional Court has, in one case, continued to remain silent and, in the other, responded with a decision to abstain.
Significance: The enforcement of rulings that had created socially inclusive privatization process proved to be potent enough in a civil law tradition country to declare void international waste management tenders valued at USD 3 billion, for reasons of ineffective poverty reduction and simulated affirmative action.
The civil society driven theory of change of waste pickers’ inclusion as inorganic waste management public utilities providers has been successful and settled although the forces of keeping waste pickers as slave-like work for supply chain continue to increase and become stronger. However the objective of graduating informal waste pickers work and unpaid sanitation service into mainstream economy as formal waste management public utilities providers was clearly made subject to formal contracting and payment/compensation for their services in this supervisory decision, although still pending of effective implementation. This became Colombia’s third attempt to formally include and affirm waste pickers by occupation as public utilities providers of Colombia’s integral waste management system for public sanitation based on systemic reform, constitutional and human rights reasoning and for reducing structural poverty through law.
Attorney: Adriana Ruiz-Restrepo
Groups: ARB, and individual leaders of GAIAREC and of the Federation of Waste Pickers organizations ARU
Source: http://bit.ly/2kMreNS