Historical development and the challenges facing constitutional order in Bolivia

Bolivia was founded in 1825. The first Constitution was drafted in Lima, Peru, in 1826 and included notes from Simon Bolivar, after whom the country was named. It merely lasted five years. Since 1831, the Bolivian State has seen constitutional change by different means (either through assemblies, amendments or legislative congresses) on 15 different occasions, the last one being the Constitutional Assembly of 2006, which yielded today’s constitutional text, ratified in 2009 (Rodríguez Veltzé 2008). The new Bolivian Constitution brought major conceptual and institutional innovations, framed under what is known as the 21st Century Constitutionalism in the region. This current notably focuses on granting indigenous peoples and the rural constituencies more social and political participation within the State that is traditionally run by dominant white minorities since the end of Spanish colonial rule.

Constitutionalism has become an integral part of the Bolivian State. Rojas Tudela argues that in Bolivia, since the last constitutional convention, the constitutional process can be understood as a rolling

‘constitutional policy’ maker, aiming at reinventing or interpreting the law in a process where the Constitution is not a unitary text but a sort of ‘navigation map’ with multiple options (Rojas Tudela 2018). Yet this vast history of experimentation and implementation of constitutional codification has not provided the political and societal results to establish sustainable democratic institutions that harnessed public grievances within its formally outlined systems (Gargarella 2011). Constitutionalism is a current academic and political challenge in Bolivia, because of the two main challenges faced by the 2009 constitution that stemmed from it: flawed institutions and caudillismo.

Arguably, Bolivia has become more inclusive since the 2009 Constitution. The ethnic and cultural diversity of the Bolivians is nowadays recognized and cherished by the State. The constitution of 2009 has provisions that revindicate those that had been systematically kept at the margin of national development throughout the country’s history. Bolivia now recognizes a plethora of formerly marginalized groups (racial minorities, indigenous communities and the like) that have been given wide-ranging self-determination rights and that are now included in all matters of State. Yet, while progress has been made, Bolivia remains a postcolonial State bound by its origins as a foreign imposition of statehood on natives in their own territories. Indeed, the Bolivian State’s history is one of conflict and cooperation between the newly arrived and ancestral people with whom the State institution has always operated with tacit and uninterrupted dominance of the white settlers throughout the last four centuries. This has formed the basis for the exclusion of swathes of the population from statehood. This historical legacy was interrupted by the MAS’ rule from 2006. The electoral victory of indigenous political movements needs to be understood in relation to the ever-growing expansion of political rights and inclusiveness advanced since the return of democracy at the beginning of the 80s. Nevertheless, the growth in numbers and diversity of those involved in politics has not yet necessarily translated into more democratic participants. Frustration with democracy is still widespread due to persistent poverty and lack of opportunities, now starkly increased by the economic fallout due to the pandemic.

The frustration with democratic institutions, in tandem with economic difficulty, has produced the second powerful force that haunts the State-society relation: caudillismo. It has taken hold over political debate, where single figures, and not general ideas carried by political groups, in theory empowered by the Constitution, are the basis for political debate. Identity politics and devotion to a specific charismatic leader are the current modus operandi of political struggle.

Political leaders sell the idea that they are the organic expression of the popular will or a collective. Hereby they alone can interpret it and are legitimized solely by the acclaim they receive. In this way, serious deliberation of any kind falls second to popularity contests. Furthermore, caudillismo is built into the State’s structure in the form of the overmighty presidency.

Since political debate is settled by popularity, the presidency is the ultimate prize and authority. Constitutional tradition has always reflected this reality. The figure of the president as the head of government and State makes the officeholder an indispensable part of the workings of the State, but also overburdens him or her with a wide range of duties. On average, the office of the president is entrusted with 30 different chores2 which, in my personal experience, surpass a single individual’s capabilities. Beyond this, the presidency does not have an underlying effective administrative structure to facilitate the process of governing. Most duties are relegated to the Ministry of the Presidency, which works with the other ministries and State organs. In addition, the president must also fulfill State representation duties and implement political goals.

The heavy-duty presidential role lacks, however, a crucial aspect, namely a relationship of cooperation with the legislative branch. The relationship between the presidency and the Legislative Assembly is currently reduced to a yearly presentation of an annual report which is not debated and has no real consequence. This leaves the presidency lacking any sort of oversight, at least within the constitutional structure. This, in combination with the need to gain and maintain popularity emanating from a political culture of caudillismo, accounts for the development of powerful tools to boost the image of the president when needed.

The allocation of land is exemplary for these purely popularityenhancing tools at the disposition of the presidency. Since colonial times, the Spanish King granted entitlements in which his signature constituted the legitimation for rulers in the Americas. The postcolonial Republic retained this practice throughout the reforms and redrafts of the Constitution. Attribution 172.27 of the 2009 Constitution grants the president authority over the Bolivian Service for Agrarian Reform, which basically gives this office sole authority to grant and distribute rural property titles. Anecdotally, I remember that during my tenure in 2005 I found thousands of pending property titles, merely missing a presidential signature. This was due to the practice of withholding the titles until an opportunity to use them politically would present itself, especially with regard to large areas in the countryside. The purpose was to hold big rallies where the titles would be handed out by the president, generating great publicity. Worse still, it was rumored that previous presidents singlehandedly signed the titles. Aghast at this archaic practice, I arranged for mechanical signature devices to be used to tackle that shameful backlog. Fifteen years on, the practice is still in use. The Constitutional Assembly did not change this when working on the draft that was approved in 2009, thus retaining one of the many perennial ills of caudillo-styc presidentialism.