Colombia Constitutional Court T-291/09
Tutela on labor rights. Amicus strategically presented to claim for protection of rights to livelihood, to work, to a life with dignity, and to development among others. Informal Waste Pickers in Cali. Eviction. Sedentary waste pickers prohibited by Decree 838/05 from working in new sanitary landfills and urban waste pickers prohibited by Law 1259/08 from recuperating recyclables from trash bags on curbs and transporting them in non-motorized vehicles.
Recycling activities in Colombia have traditionally been carried out by extremely poor and marginalized sectors of society, who collect materials from landfills or inorganic waste from the streets to transport and sell them as recyclable material to intermediary informal warehouses of the national and multinational industry from refuse deposited on the street and sell it to warehouses for modest sums. However, during the past decade, recycling became a more lucrative endeavor, and in the absence of the municipal sanitation and recycling infrastructure established by Decree1713/02, waste management companies like the one owned by members of a prominent political family in Colombia began to monopolize the recycling market. In 2008, Colombia passed Law 1259/08, which penalized activities associated with informal recyclers’ work activities, including opening refuse and transporting it in non-mechanical vehicles, citing environmental concerns. Subsequent to this law, the city of Cali privatized its waste management system, and during the bidding public process, prior orders from the Constitutional Court that public agencies take affirmative actions to guarantee the participation of informal recyclers in the privatization process were ignored. During this privatization process, the Navarro Landfill in Cali was closed. Due to Decree 838/05, the 600 families that worked in that landfill were not permitted to work in the new landfill that replaced the Navarro Landfill. They were promised a social reintegration plan that was never fulfilled.
The Court’s ruling decision (1) developed the precedent established in earlier cases regarding the rights of informal recyclers during the privatization of waste collection (T-724-03), (2) suspended the bidding process, (3) ordered the State to adopt all the necessary measures to assure effective implementation of recyclers’ right to health, education and food, (4) ordered the State to assure recyclers’ access to education as well as to other social services, (5) included recyclers in State Solid Waste Disposal Programs of collection, classification and marketization of inorganic or recyclable waste and recognized them as autonomous solidarity-based entrepreneurs, (6) created a 12 member committee to reform the municipal waste management policy of Cali and integrate the informal recyclers into the formal economy of waste management. The Court also (7) ordered emergency measures to be taken to address the Navarro recyclers’ survival needs, (8) suspended the provisions in Law 1259/08 and Decree 838/05 that were adverse to waste pickers’ trade in Cali and (9) invited CIVISOL to integrate the reform committee and report on the implementation of Court’s orders, among other provisions.
In Bogota, the Court has continued to monitor the implementation of this decision through Auto 268-10 and Auto 275-11, although the actual impact of the decision has been minimal. Cali has not received equal attention. Following ruling T-291-09 a 12 member committee was formed to reform the waste collection policy. This committee included six representatives from the state, four from recycler organizations, one from the ombudsman office and one from the CIVISOL foundation for systemic change. This committee proposed that the traditional, informal recyclers would create an organization to undertake waste collection and management and operate the recycling public service with exclusivity. However, according to CIVISOL, one month before presenting this policy to the Court, the Mayor of Cali imposed a new and unilateral avenue of reform, disregarding the committee’s recommendations. While the mayor’s plan envisioned and effectively created and imposed a Waste Public Recycling Company (Girasol EICE) in which it supposedly wanted to include traditional, informal recyclers in some undetermined manner, the company went bankrupt shortly after its creation.
For the Cali case the Constitutional Court has remained unresponsive to the petitioners’ requests for monitoring as well as to reports and requests submitted by CIVISOL as defender and implementation overseer. While more than USD 6 million has been spent through nonprofit public contracting to purportedly implement the Court’s decision, the results of such spending have been minimal, and limited to a small number of workshops on gardening and accounting. Thus, recyclers are still extremely disadvantaged and lacking in basic societal guarantees. Their work continues to be precarious, informal and crucial for supplying a flow of cheap secondary commodities (plastic, metal, paper, glass, and cardboard) to the intermediary warehouses of Colombia and also for exporting abroad.
This case is an example of bottom-up change driven by public litigation. It is also a landmark case regarding the use of law to reduce structural poverty. (In its amicus, CIVISOL managed to structure arguments in a way that empowered informal waste pickers in Cali and highlighted the constitutional rights involved). The case also develops the Court’s jurisprudence on the positive steps the State must take to compensate for material inequality between groups, rather than limiting itself to a definition of equality before the law premised on state abstention. Thus, the decision discusses the role and types of positive discrimination that State agencies must adopt to protect vulnerable and marginalized groups. Among such positive steps the Court advocates a human rights rather than purely economic approach to public contracts.
Updated on July 2013