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This working document assembles the litigation history of Colombias waste pickers and the voluntary lawyers, who either individually or collectively as the CIVISOL Foundation for Systemic Change, have teamed with organized waste pickers to secure their rights to survival and development by formal insertion into the marketplace. As such, it provides further understanding on what rra argues is the legal impoverishment of the poor and highlights the role of lawtrained professionals in national policy reform and the Legal Empowerment of the Poor Agenda.

The Colombian Waste Pickers Body of Law: A Case of Sustained Public Interest Litigation to Prevent Impoverishment through Law and Policy1

1.

Colombian Constitucional Court Ruling C-741-2003: Protecting poverty-trapped constituents right to compete in the market

In 2002/2003, waste pickers organizations in Bogot attempted to enter the public tender process to compete for one of the six waste collection and transportation contracts of the city, which was opening up the municipal service of waste collection to private operators. The waste pickers, however, were precluded from competing for these contracts because they were not equity-owned corporations, but rather, non-prot and solidarity-based organizations of the working poor, such as co-operatives. The Constitutional Court agreed with the waste pickers and their lawyers that the public tender process could not exclude waste pickers cooperatives from competing for these contracts. 2. Colombian Constitucional Court Ruling T-724-2003: Protecting poverty-trapped constituents right to enter the market The terms of the tender that came out after C-741-2003 formally allowed the waste pickers to compete; however, the conditions issued by the municipality of Bogot were so narrow as to exclude organized waste pickers from materially competing. The Court again accepted waste pickers and their lawyers arguments. However, before any preemptive measures could be taken by the Court with respect to the terms of the tender that had already been issued, the municipality of Bogot closed the tender process. Nonetheless, in its decision, the Court required an afrmative action for the inclusion of waste pickers organizations in future public tender processes related to the cleanliness public service, given that their activities fall within
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Please cite as: rra (public law + social innovation) think tank, The Colombian Waste Pickers Body of Law: A Case of Sustained Public Interest Litigation to Prevent Impoverishment through Law and Policy, working document, unpublished, New York, 2010.

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the realm of public cleanliness, and, in fact, include waste management. Further, based on the right to equality within Article 13 of the Colombian Constitution of 1991, the Court also exhorted the municipality to include afrmative actions for marginalized and discriminated groups (nonprot organizations of disadvantaged populations) in the administrative procurement processes of this territorial entity. 3. Administrative Supreme Court Ruling (Consejo de Estado) of November 13, 2003 - Administrative Contentious Chamber, First section,: Protecting waste pickers legal access to trash The third challenge facing the waste pickers in 2002 was Article 28 of Decree 1713 of 2002, which ceded the property rights in waste to the municipality once the waste was presented for collection on public sidewalks; further, unless otherwise determined by the municipality, this property right was ceded by the municipality to the private waste operator or concessionaire. The effect of this provision would have been to render the waste pickers in violation of private waste operators property rights while recuperating recyclables from waste that was awaiting collection. Although the Court did not accept the argument that Article 28 amounted to a double payment for the single service being provided to the public, i.e., a monetary payment from the waste contract rewarded to the private waste operator and the in-kind value of the ceded waste, now valued as a secondary commodity, the Court claried that when trash was presented on public sidewalks for collection by the state or its concessionaires, the waste contained therein was abandoned property. The waste pickers could, therefore, legally appropriate that trash, and through parallel advocacy efforts by waste pickers and their professional friends, Article 28 was derogated by Article 10 of Decree 1505 of 2003. 4. Colombian Constitucional Court Ruling T-291-2009: Protecting the waste pickers rights to work as entrepreneurs in the waste economy and formalizing their trade as public service providers Despite these earlier successes and gains, in 2008 and 2009 the waste pickers faced two additional challenges. First, Law 1259 of 2008 prohibited both the opening of trash from bags or cans in public space and the transportation of trash in non-motorized vehicles at a national level. Both of these provisions negatively impacted the waste pickers trade, because (a) most of the waste pickers, who live in poverty, do not have private premises where they may legally open and extract waste, and moreover, (b) the vast majority of these waste pickers used horse or hand-pulled carts to move recyclable waste to warehouses or other points of sale. Second, the Navarro waste dump of the city of Cali, which is the third largest city in Colombia, was going to be closed by governmental order for legitimate environmental concerns; however, the waste picker population, which had been living and working there since 1967 and who totaled at least 1200 individuals in 2009, had been evicted and the authorities social plan to transition them into other livelihood alternatives was never implemented. And, in two separate occasions, promises for alternative livelihood opportunities were made to the Navarro waste pickers that were never realized rst at the time of their eviction and second after the waste pickers, desperate for survival, forcefully, but peacefully, took over the iconic La Ermita church of Cali. Earlier in 2008, one of the pro bono lawyers who had been with the waste pickers since 2002 and throughout their legal struggles, founded the CIVISOL Foundation. From this point on, CIVISOL assumed the waste pickers case as a team; ruling T-291-2009 represents its rst litigation victory using law for poverty reduction

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through systemic change. Indeed, after eight years of ghting for their rights, and seeing that they were now facing competition from prominent, capital intensive investors in recycling, CIVISOL decided to build allencompassing case that, if successful, would result in a judicial decision that would (a) protect the 26 individual waste picker petitioners from Navarro, (b) extend to all 1200 Navarro waste pickers, and moreover, (c) benet all Colombian waste pickers by formally dening their rights and entitlements within the waste economy. In March 2009, CIVISOL presented an amicus curiae to the Constitutional Court and in April 23, 2009, the Court issued its decision T-291-2009 in which it held the following: (1) With regard to the Navarro waste pickers impending impoverishment, the Court recognized that their fundamental rights to a life with dignity in connection with their right to work, as well as their rights to health, education, food, and dignied housing, were materially harmed and therefore ordered the municipality of Cali to immediately adopt measures to ensure the effective enjoyment of their rights. (2) The Court accepted the lawyers arguments regarding the entrepreneurial reality of the waste pickers economic activity and recognized their right to entrepreneur in the waste marketplace, regardless of the informal nature of their activities or circumstances of poverty. The governments tender process was suspended for a period of three months, during which time it was required to re-draft the terms of reference to make them more socially inclusive. To ensure effective inclusion, and taking into account the solutions suggested by CIVISOL, the Court established that the terms of reference of the tender needed to (a) ensure the effective and real participation of waste pickers organizations in the competitive bid for public cleanliness contracts, (b) make the public tender procurement process reachable to organized waste pickers, and (c) include a scoring criterion that would reect largescale corporate bidders efforts to operate waste management contracts with waste pickers entrepreneurial organizations rather than as individual employees. (3) The Court prohibited the exclusion of the waste pickers from any public procurement for contracts regarding the design or implementation of advantageous uses of waste, including, among others, recycling and composting. In accordance with this objective, the Court ordered the formalization of all waste pickers in Cali within the public cleanliness economy and requested an ad-hoc committee that would work on re-designing and implementing a socially inclusive waste management policy for the city of Cali within six months, due November 23, 2009. The committee included seven seats for public servants, four waste pickers representatives, and, by direct invitation of the Court, the CIVISOL Foundation. (4) As argued by the lawyers, the waste pickers trade was not legally possible under Law 1259, therefore, the court authorized the authorities to exceptionally unapply its relevant provisions due to human rights implications. Ruling C-793 of 2009 later conrmed this judicial reasoning. Update (information under development) Despite the earlier case history and the ruling in T-291-2009, the waste economy has not been adequately inclusive of waste pickers by the public municipal administration. For instance, the new waste management tender process for the privatization of Bogots Doa Juana Sanitary Landll ignored the relevant jurisprudence. Consequently, in 2010 and after seeking the advice of the CIVISOL Foundation, the now legally empowered waste pickers from Bogot, specically the Asociacion de Recicladores de Bogot (ARB),challenged the Bogot administration's failure to implement T-724-2003 in this new competitive bidding process. Anchoring their arguments in what had been reiterated and further developed in ruling T-291-2009, the ARB led for a contempt hearing before the Constitutional

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Court of Colombia. The court found in favor of the ARB and determined that the administration had, in fact, failed to meet the inclusion standard articulated in T-724-2003 and suspended the tender until its terms of reference were amended to be effectively inclusive of waste pickers. Since ruling T-291-2009 was issued, the waste market in Colombia has changed remarkably, as was originally intended by the waste pickers and the CIVISOL Foundation. Currently, multi-national waste management companies are required to reach out to waste pickers' non-prot organizations and seek strategic alliances with them. In Cali, the Mexican company Promoambientales won the contract for waste collection in Zone 1 of the city in strategic alliance with the UFPRAME cooperative of former waste dump pickers from Navarro. (Information under development. As of Dec / 2009)

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