Research on the Recognition of an Indigenous Justice System in Ecuador

Ursula Grünenwald: As a political scientist, why are you studying the justice system? How does your perspective differ from e. g. a jurisprudential approach?

Jonas Wolff: In this project, I am interested in the politics of justice reforms, more specifically: the political controversies and social conflicts that accompany and shape the recognition of indigenous justice systems. In recent decades, many Latin American countries have seen constitutional reforms that officially recognize indigenous, community-based forms of justice. Most studies on indigenous justice have come from legal scholars and anthropologists, but the contested process of establishing pluralist legal orders also deserves research from a political science and a peace and conflict studies perspective.

“The overall proposition I am investigating in my project is that manifest conflict over the recognition of indigenous justice has been necessary in order to facilitate a deconstruction of mistrust in indigenous justice.”

My research is situated in the ConTrust initiative, in which we study the relationship between conflict and trust. The overall proposition I am investigating in my project is that manifest conflict over the recognition of indigenous justice has been necessary in order to facilitate a deconstruction of mistrust in indigenous justice. Among non-indigenous populations in Ecuador, but also in Bolivia or Colombia, mistrust in indigenous justice is very much shaped by a lack of knowledge about the actual norms and practices of these community-based justice systems, which is reinforced by deep-seated colonial and racist attitudes. It is only through public controversies that more appropriate, more differentiated and informed opinions can arise.

Ursula Grünenwald: What is the basis for the lack of trust of indigenous communities and rural populations in Ecuador's state justice system?

Jonas Wolff: For many rural indigenous communities, the state justice system has been largely absent throughout the postcolonial era. Until today, access to courts is limited, at times simply because physical distances and transportation costs are too high or because of language barriers. Discrimination of indigenous people is also a serious issue. Generally speaking, the “ordinary” justice system in Ecuador as elsewhere in the region tends to be very slow, inefficient and marked by corruption. In contrast, community members perceive their own authorities and practices as much more legitimate and effective in dealing with disputes and criminal offences. Existing research supports this perception.

“For many rural indigenous communities, the state justice system has been largely absent throughout the postcolonial era. Until today, access to courts is limited [...].”

Ursula Grünenwald: What changes would result for indigenous communities if their particular justice system were recognized? And what would this mean for social cohesion as a whole?

Jonas Wolff: Starting with the Colombian constitution of 1991, indigenous justice systems have been officially recognized throughout the Andean region, including in Bolivia, Ecuador, Peru and Venezuela. Legal recognition, therefore, is no longer the issue. What is still very much contested, however, is the relationship between indigenous and ordinary justice, how to deal with conflicts that emerge between the two systems. Despite constitutional recognition, indigenous authorities that practice community justice therefore still risk being prosecuted. Also, the widespread mistrust vis-à-vis indigenous justice I mentioned continuous to persist, as do racist prejudices. Actual societal and political recognition, thus, has yet to follow constitutional recognition.

Ursula Grünenwald: Are the conflicts in Ecuador different from those in other Latin American countries?

Jonas Wolff: Ecuador, it seems to me, currently follows the Colombian example. In Colombia, the attempt to adopt the implementing legislation demanded by the 1991 constitution failed. Given the absence of a law that would establish norms and procedures to coordinate indigenous and state justice, Colombia’s Constitutional Court gradually assumed this task through a series of sentences. In Ecuador, following constitutional reforms in 2008, we see a similar trend: The attempt to adopt a coordination and cooperation law similarly failed and, in recent years, the Constitutional Court has issued judgements that take the issue of legal pluralism more seriously. But this is still a very contentious process, with some progress here and there, and many obstacles and backlashes. This should not surprise us: The recognition of indigenous justice is part of a far-reaching process of transforming post-colonial states that consider themselves unitary nation-states into plurinational states, as Ecuador’s constitution has it. This transformation challenges vested interests and established power relations, but also deep-seated post-colonial imaginaries. Just look at Chile, where opinion polls suggest that the recognition of indigenous justice and the plurinational state were among the most rejected features of the constitutional draft that was so overwhelmingly rejected in the referendum this September.

“The recognition of indigenous justice is part of a far-reaching process of transforming post-colonial states that consider themselves unitary nation-states into plurinational states, as Ecuador’s constitution has it.”

Ursula Grünenwald: What political perspectives do you see for a plural justice system in Ecuador? Could a Ecuadorian concept be groundbreaking for other world regions with a colonial past?

Jonas Wolff: Both at the constitutional level and in actual practice, indigenous justice in Ecuador is there to stay. But for the foreseeable future, the relationship between indigenous and state justice will continue to be more of a coexistence, mostly peaceful, but also with many tensions and frequent conflict which will be shaped by societal correlations of forces rather than through dialogue. This is still a far cry from the idea of legal pluralism as a mutually supporting “living together” (convivialidad) of indigenous and state justice, as Boaventura de Sousa Santos once called it.

“I would guess that the experiences in the Andean region offer interesting lessons for other parts of the world. And I don’t think only of other countries with a colonial past.”

I don’t think this is about Ecuador, but I would guess that the experiences in the Andean region offer interesting lessons for other parts of the world. And I don’t think only of other countries with a colonial past. Generally speaking, the debate about how to rethink the model of the nation-state, how to deal with increasingly diverse societies, including through some forms of legal pluralism, also concerns us here in Germany and in Europe.  

Ursula Grünenwald: Thank you very much for the conversation!

Jonas Wolff heads the PRIF research department “Intrastate Conflict”, is Professor of Political Science at Goethe University and Principal Investigator of the research initiative ConTrust, a cooperation between PRIF and Goethe University.