During the constituent process of 2008, Ecuador’s social movements successfully introduced essential guarantees of certain rights for the transformation towards a fairer society and at the same time, in harmony with nature.
The new Constitution makes significant progress: recognizing water as a fundamental human right, both the precedence in its usage and forbidding privatizing it; the rights of nature; the possibility of constructing Sumak Kawsay (good living), and the right of Resistance, the latter of which establishes:
Art. 98.- “Individuals and groups will be able to exercise the right to resist actions or omissions of public power, individuals, or non- governmental entities that violate or can violate their constitutional rights, and demand the recognition of new rights”
Consistent with these principles, the Constitutional Assembly issued two mandates granting amnesty to hundreds of people who had been investigated and prosecuted for defending their territory and, therefore, recognizing the legitimacy of their actions in defending nature.
Despite these achievements concerning basic rights, since 2008 the criminalization of the social protest has grown and has affected social leaders, teachers, students, public workers, journalists, indigenous people and rural communities. Nearly two hundred men and women find themselves involved in prosecution processes for their actions in protest, rejection or protests against projects or organizations of significant social and environmental impact, principally extractive projects- like large-scale mining. Likewise, they find themselves prosecuted by the exclusionary characteristic regime that works to limit the creation of a multinational state, or by their opposition to laws (such as those of mining and water resources) that violate rights established in the Constitution.
A report prepared by Acción Ecológica, the Comisión Ecuménica de Derechos Humanos (CEDHU) and the Fundación Regional de Asesoría en Derechos Humanos (INREDH) reveals that between 2008 and 2010, more than twenty environmentalist-defenders of nature were criminally charged , manifesting various significant aspects:
The victims of criminalization: It is inferred that the nearly 200 victims, from those cases registered, are individuals and communities; social leaders and local public authority members (representatives of township, county and provincial governments); as well as social organizations (indigenous, rural communities, environmentalists and others). In some cases they are subjects of administrative investigation or complaints, including judges who have issued rulings in favor of those opposed to mega projects. A recent example of this is the action driven by the Minister of Justice, José Serrano, preparing to start criminal and disciplinary proceedings against judge María Cristina Narváez; the judge accepted the petition of habeas corpus in favor of three Shuar leaders prosecuted under the charge of terrorism for their participation in demonstrations rejecting the official project of the Water Resources law, and who were also illegally detained on February 1, 2011.
Furthermore, included amongst these people criminalized for defending nature are those that were granted amnesty in 2008, due to the same conflict and similar actions of resistance, whose legitimacy was recognized by the Constitutional Assembly.
Areas in which criminalization is manifested:
Judicial: The cases reveal judicial processes of criminal prosecution. Some charges have remained in the investigatory stages, whilst others have resulted in temporary detention; others have received judicial sentences, while some have been dismissed. In one of the cases described, the accused was sentenced to 8-year prison terms. The reports and prosecutions have included accusations of the sabotage of public services, the destruction of buildings, the obstruction of main roads, organized terrorism, attacks on private property and illicit association.
Terrorism, as an offence, is not defined in the Ecuadorian legislation, and its ambiguity allows the State to act upon their discretion, qualifying whatever act as terrorism and furthermore using the argument of ‘going against the interests of the State’, based on the Executive Order 982.
Administrative: Just as the criminal system has been used in order to criminalize the defenders of human rights and nature’s rights, the administrative system has also been used to weaken or eliminate the resistance. In two cases, the Minister of Non-Renewable Natural Resources accepted “remedy and preventative measures” injunctions solicited by mining companies to neutralize the people who were obstructing their activity. In one case, the administrative measure attempted to try and close down the organization Acción Ecológica. Another process seeks to subjugate, by a disciplinary action, the judges who have ruled in favor of individuals who oppose mega projects and put pressure on the revision of their ruling.
Legal: On July 2010, the National Government sent a bill to the National Assembly that contains legal reforms, which contains the increase of imprisonment of up to 5 years, in cases of the closure of public areas.
The current legal framework remains in place, which seeks to regulate the creation, surveillance and the dissolution of non-governmental organizations; including incorporating highly subjective criteria that can permit or terminate the legal existence of organizations, and which translates into an effective mechanism that censors the activity defending human rights. The Civil Code grants the President of the Republic the legal authority to not approve the creation of corporations and foundations and to arrange their dissolution in the case of their being found to not be carrying out “the objective” for which they were created, or if the President considers that they violate statutes going against the “the public order” and “good practice”; if their existence can “allegedly cause damage to third parties” or “if they compromise security or interests of the State”. By means of the Executive Order of August 30, 2002, the Ruling for the approval, control and extinction of non-profit legal entities with a social purpose was passed, and that, amongst others, arranged as a ground for dissolution “to compromise the security of the State”. On March 25, 2008 through the Executive Order 982, this Ruling was extended, establishing as grounds of dissolution that the organizations threaten not only the security of the State but also threaten its “interests”.
It is of particular concern that the Decree 982 of 2008 allows different ministers, with the aim of carrying out investigations, access to the headquarters of those organizations that manage sensitive information regarding human rights. It is unduly invasive and, if such privileged information is used by the State affecting individuals or communities that place their trust in these NGOs (and are victims of violations to their rights in which state officials may be involved), it puts at risk their integrity and capacity to defend their rights.
In their discourse: Another form of criminalizing the resistance is through the discourse and messages sent out by government representatives, mostly by the President of the Republic, Rafael Correa, and other actors interested in the development of these mega-projects. This practice tries to incriminate campesinos, leaders and organizations by publicly slandering them as terrorists, infantile and fundamentalists, [thus] resulting in damaging their honor, reputation, human dignity and the right to freedom of expression without discrimination. The following declaration elucidates:
“[…] Ecologists are extortionists, the communities are not a group of protestors but a group of terrorists, the romantic environmentalists and infantile left-wing supporters are all looking to destabilize the government” (…) “Anarchism is finished, and now anyone who that opposes the country’s development is a terrorist, do not let them mislead you, the government is investigating who is behind it all.” (Rafael Correa, December 2, 2007)
The accusers: What is different this time from previous epochs is the state (through fiscal and courts, the police and public prosecutor’s office) is as much to blame, if not more so, for the criminalization, than private sector companies. These companies use their employees, lawyers for the same objective.
The criminalization of environmentalists in 2010
It is informative to highlight the criminalization carried out during 2010 because it reveals the relationship between the expansion of mining in Ecuador and the number of prosecutions, as shown in the following graphs prepared by Gloria Chicaiza de Acción Ecológica, for the ‘Andino Programme of Human Rights’.
The first graph allows us to see the high concentration of criminalization of those publicly opposed to mining in the previous year:
“In the following graph it is clear that the level of conflict increases with various actions against mining activities, which triggered off and re-ignited new conflicts in March 2010. The first of these was the report from the Constitutional Tribunal , which declared the Mining Law as constitutional; and the second: the announcement that the Ecuadorian government will allow 12 mining companies to resume their activity in the country. The interference of the Chinese company Tongling on Ecuacorriente’s concessions during the working phase of the mine (similar to the granting of permission to restart mining operations in the project ‘Curiampa de Salazar Resources in the Bolívar province’) ensured the reactivation of the processes of criminalization and a peak in conflict during June. Finally, in September, there is a new increase with the submission of the environmental license for the project ‘Fruta del Norte’ from the Canadian mining company Kinross Aurelian, in addition to the reactivation of the prosecution processes against the leaders of FISCH and the activation of others like that of Imbabura.” (Gloria Chiaiza. Mining and Human Rights: conflict and criminalization. “Uncovering the disillusionment, report about human rights, Ecuador 2010”. Andino Programme of Human Rights, UASB)
We are, then, standing before the configuration of a pattern of repression and criminalization which has been perpetrated by the state and/or companies or particular individuals as a response to exercising the Right to Resistance by those who defend nature, in which both private and public companies play an important role.
It is worth asking ourselves the reason for this policy of criminalization. Part of the response comes from the deepening of the extractive, agro-industrial and commercial model of nature. The extractive companies are contemplating the expansion of the petrol frontier in the south-central Amazon and on the Coast, and at least 5 mining mega-projects in the South; the agro-industrial plans include the linking of thousands of rural campesinos’ families by ‘large corporations’ that are attempting to gain sole control of the production and commercialization of food, besides the expansion of plantations for biofuels in thousands of hectares and forest plantations of species such as eucalyptus, pine trees, teak, and balsa trees.
This is going to imply an even higher concentration of land and water in fewer hands, whilst violating the rights of campesino communities and those of indigenous peoples and of African descent. In other words, a new cycle of dispossession that presupposes bigger conflicts between these communities and the powerful economic interests that are behind this model; conflicts that will surely give place to an even more perverse cycle of criminalization.