Abstract
Day-to-day management of street vending is much more a matter of starting negotiations, mediating between the interests of distinct groups, and making agreements, than it is about enforcing confusing and at times contradictory legal mechanisms with limited effectiveness. Based on the results of extended fieldwork in a low-income outer locality of Bogotá (Ciudad Bolívar), I will argue that street vendors and state representatives interact around a four-step dynamic known as the ‘game’, which provides them with ‘working stability’ or high degrees of legitimacy, despite frequent arbitrary – and not just discretionary – interventions from the police and other state representatives. In short, the game works as follows: complaints against vendors build-up and interventions take place. Street vendors use different resistance strategies, but tension intensifies, then crisis is reached. As both parties have strong incentives to negotiate, they reach basic coexistence agreements. Vendors fail to comply with the agreements because regulations made to sanitize poverty and to hide the face of misery are rarely applicable. The cycle restarts. I conclude by arguing that efforts to eliminate or limit street vending will not be successful or sustainable until the state makes the political and fiscal commitment to offer substantial employment programs and/or guarantee a minimum income to vulnerable families.
Introduction and context
Around the world, street vendors make up one of many groups that have been traditionally defined as being out of place in the urban realm. However, daily efforts to eliminate or limit vending are rarely, if ever, successful and/or sustainable. Why? Regulated space is always contested space. In the case of street vendors, recent papers based on legal geography analysis have suggested that the day-to-day management of street vending is a matter of starting negotiations, mediating between interests of distinct groups, and making agreements, rather than of enforcing confusing and at times contradictory legal mechanisms with limited effectiveness. Most of that literature is based on research in cities of the Global South, such as Bangkok (Robinson and McDuie-Ra, 2018), Mexico City (Meneses-Reyes, 2013), Acapulco (Konzen, 2013), Delhi (Bhan, 2016; Goswami, 2015; Naik, 2015), Bogotá (Donovan, 2008; Holland, 2017; Vargas and Urinboyev, 2015) and Lima (Holland, 2017). However, research has surprisingly drawn similar conclusions in cities of the Global North, such as Phoenix (Varsanyi, 2008), New York (Devlin, 2018a; 2018b), and Barcelona (Moffette, 2020). For example, when Devlin (2018b) analyses the dispute over urban space in New York, he uses the words I would take to describe 18 months of fieldwork in Bogotá: ‘Laws governing street vending in New York City are confusing, convoluted, at times contradictory, and difficult to enforce with any sort of consistency. In this context of uncertainty and illegibility, (…) the geography of street vending is produced and negotiated (…)’.
Mario Barbosa suggests that during the late 19th century and the first half of the 20th century, planning was absent from most Latin American cities. Elites reacted by initiating modernization projects that included civilizational efforts, targeting groups of subordinate subjects, including street vendors (Barbosa Cruz, 2005). In this analysis, I highlight three recent milestones concerning the relationship between public space and street vendors. The first, between 1989 and 2003 when local mayors were elected for the first time by popular vote. During that period, Bogotá went from negligent mayoralties to what Ana María Vargas Falla (2016) called ‘the war on street vendors’. Despite differences between mayors Enrique Peñalosa and Antanas Mockus, both ended up defending the interests of nonpoor voters and business groups regarding public space (Holland, 2017). However, the 1991 Constitution included the right to work and the right to public space as constitutionally guaranteed rights. The new Constitution created a legal action (tutela) to be filed by any citizen, without the need for a lawyer and before any judge, to protect their constitutional rights. Street vendors filed tutelas to protect their right to work and avoid eviction, but since the Constitution included the right to public space, the Constitutional Court had to strike a balance: vendors could be evicted only if the government provided alternatives to generate minimum levels of income. These participatory measures ultimately placed the mayors below rather than above the law (Donovan, 2002).
A second milestone in the relationship between public space and street vendors runs from 2004 to 2015, when the city elected leftist mayors with poor core constituencies. The mayoralties of Luis Eduardo Garzón, Samuel Moreno, and Gustavo Petro were characterized by forbearance toward street vendors (Holland, 2017). Fieldwork for this paper was carried out during 2012 when Gustavo Petro was mayor. As I will describe in detail, the relation between the police and street vendors was governed by an idle practice referred to as ‘the game’. On one hand, police and public officers had to enforce regulations prohibiting street vending and allowing evictions. On the other hand, vendors voiced their claims to high-ranking government officers who favoured forbearance. Plus, vendors had enough time to skillfully appropriate tutela in their everyday struggles to avoid evictions (Porras-Santanilla & Fleischer, n.d.). When Petro’s mayoralty ended, rising middle-class frustration towards street vendors contributed to Peñalosa’s successful campaign. Retaking office in 2016, he reinstated firm enforcement policies against street vendors. Claudia López took office in 2020, when lockdowns and stay-at-home orders were issued due to COVID-19. Her public space management style in the middle of a pandemic sets up a third milestone to be studied. 1
Theoretical framework, general argument and methodology
Most literature providing analysis of day-to-day management of street vending incorporates the formal/informal distinction. However, I will not use it to frame my analysis for three reasons: A) The distinction was considered helpful for big but not powerful cities of the Global South (Bhan, 2016). However, there is enough evidence to argue that ‘informal’ or ‘under the radar’ activities associated with income-generating or survival strategies are also carried out in the North (Blomley, n.d.; Devlin, 2018a, 2018b). As Comaroff and Comaroff (2012: 127) suggested, ‘there is much south in the north, much north in the south, and more of both to come in the future.’ B) The formal/informal distinction is a multifaceted confusing resource. For instance, it is commonly implied that informality is a system that runs parallel to the formal and the legal. In other words, associations include formal/regulated/planned/legal, as opposed to informal/unregulated/unplanned/illegal. Nevertheless, those relationships are volatile, contested, and often ambiguous (Bhan, 2016; Blomley, n.d.). For example, street vending in Bogotá could be characterized as informal/heavily regulated/spectrally planned/legally confusing. C) Informality is produced by the state, not found (Blomley, n.d.). As the state produces informality, it also produces an imagined space of informality (Blomley, n.d.). Since informality is associated with illegality, what is thought to be ‘informal’ can also be thought to be ‘illegal’, especially for those with little legal knowledge. And here is what worries me the most: Merging the imagined space of the ‘informal’ with the ‘illegal’ can boost arbitrary state interventions in the lives and productive strategies of street vendors, who are, strictly speaking, formally legal.
Since I do not want to open any window that could potentially increase state power and violence, I will use a category developed by Bhan (2016) to frame the discussion of contested space in this paper: legitimacy, rather than ‘formality’ or ‘legality’. Legitimacy can be seen as a marker of the probability to perform certain practices that increase the possibility for subaltern urban residents to acquire greater wealth or to access capital and resources by, for example, securing tenure or acquiring work. Practices are diverse and can work through law or custom, negotiation, or confrontation. Through which set of practices does a group of street vendors gain enough legitimacy to remain in their working spot for years without being evicted or fined? As Bhan (2016) argues, seeking to increase legitimacy opens a range of practices that can impact the socio-material realities of everyday life beyond deeply porous categories such as formal/informal, legal/illegal.
The overall argument of this paper is based on ‘the game’ (el juego), word used by vendors and police agents to describe interaction dynamics between them and with state representatives in Bogotá. The game has provided ‘working stability’ or high degrees of legitimacy to street vendors, despite frequent arbitrary—not only discretionary—interventions from the police and other state representatives. There are four phases in this ‘game’, which I will describe. Firstly, I will illustrate how complaints against vendors build-up and how the police and/or other public officers intervene, usually in an arbitrary manner. Secondly, I will refer to types of interventions, ranging from verbal warnings to evictions and, more recently, fines. Thirdly, I will portray and analyse different ‘weapons’ street vendors use to resist interventions when tension intensifies and crisis is reached. Fourthly, as both parties have strong incentives to negotiate (street vendors need to work, and state officers know that they will not succeed in eradicating street vending), they reach basic coexistence agreements. I will analyse the type of coexistence agreements reached, and quickly breached, because regulations made to sanitize poverty and to hide the face of misery are rarely applicable. Irrevocably, the cycle restarts. I will conclude by arguing that efforts to eliminate or limit street vending will not be successful or sustainable until the state makes the political and fiscal commitment to offer substantial employment programs and/or guarantee a minimum income to vulnerable families. Meanwhile, vendor organizations and policymakers concerned with distributive justice should inform their struggles with the practices of resistance providing high degrees of legitimacy to street vendors in Bogotá.
This analysis is situated, and thus, describes the results of 18 months of activist ethnographic fieldwork from September 2012 to January 2014 in a low-income outer locality of Bogotá (Ciudad Bolívar). This area is subjected to less aggressive interventions when compared to other central areas of the city. 2 It should be noted that street vending takes diverse forms across the city and across different cities in the world. For instance, enforcement actions have been more persistent in central parts of Bogotá (Donovan, 2008; Holland, 2017; Vargas & Urinboyev, 2015) and in central or tourist zones of cities such as Acapulco (Konzen, 2013) and New York (Devlin, 2018b). When vendors live in cities where licensing exists, things look different since that kind of practice can generate a pervasive insider–outsider dichotomy (Meneses-Reyes, 2013: 340). The experience of vendors is different if they are irregular immigrants facing the possibility of deportation (Varsanyi, 2008), and even more challenging if they are not only poor immigrants but also racialized individuals selling pirated copies of luxury items (Moffette, 2020; Varsanyi, 2008). In such cases, vendors can find themselves at a juncture where various legislative frameworks (municipal, immigration, and criminal law) intersect to govern their presence in the city; therefore, their possibility to resist might be substantially lower.
I conducted fieldwork as a heterosexual woman in my early thirties, married and without children. My research started with power imbalance due to factors such as my social class (middle class), university affiliation, and educational background. However, as many feminists do, I adopted the role of the ‘supplicant’, seeking to promote reciprocal relations based on empathy and mutual respect (England, 1994). I proposed a simple deal to vendors: if they allowed me to spend time with them, they would have free legal advice whenever they needed it. As an activist-scholar, this was a way to empower one’s people and not just report or interpret phenomena (Choi, 2006), and to join other Latin American scholars who work with street populations (Aliaga Linares, 2012; Aliaga-Linares, 2018; Morado Castresana, 2020; Muñoz, 2016; Ritterbusch, 2016; Ritterbusch and Cilencio, 2020; Soto Villagrán, 2011). In 2019, I published a paper reflecting at length on the role of the researcher in the research encounter (reflexivity), and on the nature of power relations while conducting research (positionality). I describe six challenges that I had to face as a Colombian lawyer while conducting the ethnographic fieldwork on which this paper is based (Porras Santanilla, 2019); I acknowledge myself as partial insider, I address the issue of dealing with personal characteristics that influence data collection, and I reflect on what it means to work under psychologically and physically overwhelming circumstances; I also acknowledge that our subjectivities shift through the research process as we are transformed by the fieldwork experience (Whitson, 2017). Nowadays I am a single woman, mother of two children, interested in how vendors handle caregiving. The street is the research place where I have felt most comfortable, and that has changed me the most. Perhaps its magic lies in the fact that, as Ritterbusch’s says, it is ‘both a site of struggle and a site of radical hope and dreams’ (Ritterbusch and Cilencio, 2020)
The game. Phase 1: Complaints and arbitrariness
‘I nag the police all the time because those people (street vendors) intimidate me… I know they will either rape me or steal from me one of these days. But the police tell me that they cannot kick them out without an order from the mayor’s office. Can you help me with that? Can you help me get that order?’
It is common for the police and other public officers to receive complaints against vendors for different reasons, including threats of violence, actual physical violence, alcohol abuse, alleged lack of hygiene, and car obstruction. To deal with these, state representatives are mandated to apply the rules of derecho de policía, defined by the Colombian Constitutional Court (CCC) in ruling T-425 (1992a) as ‘a set of administrative activities aimed at issuing general rules and individual measures necessary for the maintenance of public order’. In Bogotá, besides the police there are at least three other institutions interacting with vendors and exercising sanctioning power which requires, according to the CCC in ruling T-490 (1992b), the ‘rational and proportionate use of force, as well as the choice of the most benign and favourable means to protect fundamental rights’. These are, the Institute for the Public Economy (IPES) whose main task is to provide alternatives for individuals who work in the street economy; the Ombudsman’s office for citizens to file complaints against public space invasions (DADEP); the local mayors’ offices 3 in charge of promoting peaceful coexistence and coordinating conflict resolution, amongst others.
I will argue that when state representatives receive what they think are too many complaints against vendors they intervene, 4 usually in an arbitrary – and not just discretionary – manner. I highlight this difference because state representatives that intervene using derecho de policía are often able to exercise a highly discretionary form of power, and there are good reasons for them to do so. As Markus Dubber and Mariana Valverde (2007: 147–148) argue, ‘police powers target specific, typically local, ever-changing situations (typically, situations of disorder rather than crime) that seem to require tailor-made risk-management strategies rather than the application of fixed laws’. Nonetheless, socio-legal scholars have also shown that non-criminally based normative systems, such as derecho de policía, are commonly used to deal with urban disorder by enforcing social discipline with fewer legal guarantees (Blomley, 1994; Malagón Pinzón, 2016; Sylvestre, 2010; Valverde, 2009; Velloso, 2013). At this point, it is important to distinguish between discretion and arbitrariness. As everybody everywhere interprets the law, it is difficult but necessary to trace the line between discretion and arbitrariness.
In ruling C-031 (1995), the CCC made the distinction, describing arbitrariness as acting outside the law’s framework. More specifically, in the case of derecho de policía, Lalinde argues that in order to prevent this discretion from being arbitrary and becoming a tool to disproportionately persecute specific sectors of the population as dangerous based on prejudices and criminal stereotypes, police activity must be guided by predetermined criteria (Lalinde Ordónez, 2015: 51). The point is that state representatives have the legal responsibility and obligation to inform, justify and explain their decisions, and they should be accountable when dealing with vendors. In practice, this rarely happens. I will illustrate this in the following paragraphs by describing rhetorical strategies used by the police and other public officers to intervene arbitrarily. In short, while police officers with less cultural capital cite state rules that do not even exist, public officers try to justify arbitrary interventions by citing the law or what they consider to be the proper interpretation of the law.
Police officers in Bogotá are usually poor with low levels of cultural capital. Their jobs and circumstances make them slightly wealthier and educated than street vendors, so they consider themselves higher up in the social scale. Most of the police officers I met insisted that they ‘understood’ and ‘tried to help’ vendors ‘as long as they behaved’. By ‘behaving’ they meant being perceived as invisible to the police, or not causing problems that would ‘oblige them to work harder’ as if they ‘had nothing better to do’. Isadio, a middle-aged leader of vendors in Ciudad Bolívar, was the first to draw my attention to how police officers try to justify the soundness of arbitrary interventions. He sensed that the police were ‘bothering’ them with non-existent rules. I advised him to ask the police to give him the number and year of the rule they were supposed to apply and download it from the internet. He did not know how to use the internet but in time, I taught him and he was able to confirm his intuition:
Asking for licenses is another frequent arbitrary technique used by the police to threaten vendors. As opposed to what happens in other cities, street vendors in Bogotá cannot acquire licenses or permits to work legally;
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public authorities do not grant them. Some vendors can be allowed to work in specific vending zones where they have been relocated, and others in transitional vending zones for short periods of time, but they are not given licenses to do so. Still, when the police has too many complaints, they use non-existent license-related transgressions to threaten vendors into observing their rules. This is yet another way to justify the soundness of arbitrary interventions. Why does this happen? It is obvious that policemen feet frustrated and deal as best as they can with a social problem beyond their expertise or abilities. For instance, when I asked them about their ‘unlawful’ practices, a policeman in one of the focus groups told me:
There are applicable laws to vendors but not in the way the policeman might have thought. In fact, the law establishes a detailed procedure to be conducted before any eviction or confiscation. During my fieldwork, police activity regarding public space was regulated by Colombia’s Police Code (Decree 1355 of 1970) and Bogotá’s Police Code (Agreement 079 of 2003). Colombia’s Police Code included very little on vending and public space. Still, Bogotá’s Code expressly prohibited ‘undue occupation of public space’ through street vending and allowed evictions. On 4 September 2003, the Constitutional Court issued a key ruling (T-772 of 2003) where it held that every eviction process must be preceded by a careful and individualized evaluation of the socio-economic effects of the decision. Evictions could not be carried out if the subsistence of vulnerable citizens was at risk, because any policy impoverishing citizens is regressive and violates the Constitution. Following T-772/2003, Decree 98 of 2004 was issued by the newly leftist elected mayor. Once it was clear that Bogotá’s Police Code and ruling T-772 of 2003 were contradictory, the Decree established a detailed procedure to be followed before any eviction or confiscation of goods takes place. The state needs to offer vendors economic alternatives before they can be evicted.
The situation is quite different with public officers, most of whom try to justify arbitrary interventions in vendors’ lives and productive strategies by framing them within the context of their discretionary power to interpret the law. They play in the grey area between discretion and arbitrariness, trying to justify arbitrary decisions as discretionary. I interacted with dozens of public officers, attended multiple meetings, and arrived to the conclusion that, for analytical purposes, they could be placed in three categories: preachers, mercenaries, and sceptics. These are only ideal types in the Weberian sense. Depending on the circumstances, the same officer can alternate between discourses.
The most important category is that of the preachers. They ‘preach’ what they believe is a more advanced view of the world. They deliver sermons about urban aesthetics, cleanliness, loud and quiet, proper and improper, violent and non-violent, advanced and regressive. While certain vendors are convinced that they should obey the code of behaviour imposed upon them and admire preachers, others strategically ‘adopt’ these standards. However, most of them feel uncomfortable with these moral high grounds and refuse to comply. In one of the meetings I attended, two vendors became physically violent; one of them pulled a knife on the other. I felt petrified when a female vendor told me:
When their ‘advice’ is not heard, preachers use any excuse to discipline vendors into observing their rules, which skilfully and surprisingly match administrative regulations (derecho de policía). In fact, preachers appear to master technical legal discourse more than any other type of public officers, developing skills to interpret the law in ways that allow them to pursue their own agenda. A public officer working for IPES revealed that he arbitrarily stretched regulations when I asked him about the procedure to allocate tents to particular street vendors:
Mercenaries make up the second category of public officers. They dislike their job and the people they have to deal with, so they basically do it for money. They are precarious employees themselves (as preachers are) with fixed-term contracts of 4–6 months, and they work as little as possible while actively strategizing to keep their jobs. Mercenaries want to interact with vendors as little as possible; they are tough and usually arbitrary when they do. I witnessed an eviction in an area of Ciudad Bolívar known as ‘El Líder’ without due process. A typical mercenary from the local mayor’s office argued that evictions never occurred. He accepted that from time to time, they ordered ‘police patrolling operations’ to guarantee safety when concerned citizens filed complaints against certain street vendors’ behaviours. However, he argued, those were not evictions. By distinguishing between controlling vendors and denying them the street, they interpret the law in ways that allow them to arbitrarily intervene. Different public officers used the same argument several times during my fieldwork to pressure vendors into leaving the street without an order.
Finally, there is a small group (worth mentioning) of frustrated and tired sceptics who intervene as little as possible, as they truly believe they make no real difference. They are less prone to arbitrary interventions in vendors’ lives and their productive strategies. In fact, they turn a blind eye to the many complaints they receive. One of the few sceptics I met said: ‘the truth is, Laura, but please don’t cite my name on this one, that we can’t help them. I don’t even know if I will be able to look after my own family in a couple of months. That’s why I don’t like to fuck with them (no me gusta joderlos). I know what it means to have a family and no job.’ Still, sceptics are exceptional. Police actions should be guided and constrained by the principles of the State of Law; unfortunately, the police and other public officers are prone to intervene arbitrarily. Just as it is important to listen to public officers to understand the reasons (if any) behind their actions, it is important to remember that there is a clear asymmetry of power between vendors and state agents who interact with them on a daily basis.
Phase 2: From verbal warnings to evictions and fines
How public officers and the police decide to intervene is a different matter. Interventions range from verbal warnings to evictions and, more recently, fines. When I conducted fieldwork (under the political leadership of a leftist mayor), both public officers and the police had incentives to find a negotiated solution with street vendors before deciding to intervene. The mayor of Bogotá, Gustavo Petro, is a former M-19 guerrilla who supported forbearance towards street vending (Holland, 2017). According to Holland (2017), sometimes politicians ‘choose’ not to enforce laws in countries where welfare policies are inadequate, and the politician needs the poor’s support to take or retain office. As the message to intervene changes depending on the political position of the mayor and local mayors in charge (appointed by the elected mayor), it is reasonable for police officers to feel confused and irritated with what they perceive as confusing orders:
In short, political pressure to intervene is only intermittently exercised when complaints in particular areas become too vociferous to ignore. The question to ask then is: when state representatives do intervene, how do they do it? They usually start with ‘soft’ strategies since conflict does not suit any of the parties. ‘Soft’ interventions include arbitrary threats based on rules that don’t even exist or that are framed within the context of their discretionary power to interpret the law. However, some of them follow Bogotá’s Police Code and use ‘verbal warnings’ (llamado verbal de atención) to instruct a particular citizen against breaching regulations listed in the Code, such as street vending. I only saw this happen twice during my fieldwork. When tension between the parties increases, evictions take place. In fact, I evidenced they were the main intervention tool. There are strict regulations regarding due process for evictions to take place and for materials to be seized, but these are frequently breached. An order to carry out an eviction must come from the local mayor’s office, after an individualized study of the socio-economic conditions of each vendor that is being evicted, and after having offered them economic alternatives. Also, merchandise that is seized cannot be destroyed. However, I witnessed multiple threats to evict and eight (8) evictions. None of them complied with due process. Destroying goods and property during eviction is less frequent (I only saw this twice), as is the use of pure unreturned violence (I only saw this once) because superiors advise police officers to avoid it. ‘That means more paperwork in the best-case scenario, or public lynching in the worst’, a policeman told me.
Finally, public authorities use criminal law to indirectly intimidate, coerce and sometimes blackmail vendors into observing their rules. As it’s often the case with poor individuals (Wacquant, 2009), vendors are more likely to have a criminal record for minor crimes (failure to pay child support, injury claims, etc.), which are not directly related to their productive strategies. Some of them have been judged and sentenced by default, or without knowing about the procedure. Aware of this, the police often threaten to inspect their criminal records. Among a group of vendors I befriended, a woman was found guilty of domestic violence. Her two daughters filed a claim against her years ago, but she was not aware of it. The police considered she was dirty and did not ‘take care’ of her vending spot. After looking at her criminal record, she was arrested and taken into custody. She was sentenced to 28 months in prison but was released after a year. I documented three more cases of street vendors who were arrested due to their criminal records. In all cases, these individuals were disliked by the police (perceived as violent, neighbours complained about their behaviour, etc.). I must note that the police never looked (or threatened to look) into my criminal record.
Once I finished my fieldwork, Congress adopted a new National Police Code including, for the first time, fines for street vendors; these correspond to 4 times the statutory minimum daily wage (117.040 pesos or US 31.38 of 2020). Dejusticia (Colombia-based research and advocacy organization) and other organizations asked that the norms be declared unconstitutional. Unfortunately, the Constitutional Court ruled that the norms were conditionally enforceable, stating, in decision C-211 (2017), that when dealing with ‘vulnerable’ citizens, ‘fines cannot be imposed and goods cannot be confiscated or destructed, until these individuals have been offered relocation programs or alternatives of formal work’. Justice Alberto Rojas wrote a dissenting opinion arguing that a declaration of conditional enforceability was not enough to protect vulnerable citizens who have systematically been subjected to persecution and mistreatment. Who will decide whether a citizen is ‘vulnerable’ before imposing the fine? He asked. The police. In fact, from August 2017 to December 2019, the police filed 53,046 fines against street vendors in Bogotá and 145,367 in Colombia for occupying public space, turning it into the fifth most common police offence. 6
The public opinion criticized the imposition of fines against street vendors. Outrage erupted on 15 February 2019, when the police imposed a fine of 800,000 pesos (US 220 in 2020) on a man who bought a meat pie (empanada) from street vendors for having ‘promoted’ or ‘facilitated’ the occupation of public space. The fact generated such media scandal that, in October 2019, the CCC ruled that fines cannot be imposed on those who purchase or consume goods offered by street vendors (C-489/2019). The event also accelerated the issuance of Law 1988 of 2019, which gives the Ministry of Labour 12 months to issue a public policy for street vendors. To this day, the number of fines imposed illustrates how the new Code, far from protecting vulnerable livelihoods, deepened asymmetrical relations between the police and vendors by extending police powers to interfere in their productive strategies.
Phase 3: Resistance
In the previous section, I described techniques used by public officers and the police to intervene in vendors’ productive strategies. Every time the state intervenes, the vendors’ incomes are threatened; therefore, they resist. Patricia Ewick and Susan Silbey understand resistance as the different ways in which relatively powerless persons accommodate to power while simultaneously protecting their interests and identities (Ewick & Silbey, 2003: 1329). Even when opportunistic and individualistic, resistance is not random. Through everyday practice, individuals identify the cracks and vulnerabilities of institutionalized power, such as the law, and then disturb ongoing expectations to shift the dynamics of a given power relation (Ewick and Silbey, 1998: 187). As a result, acts of resistance have consequences beyond a specific social transaction; they show how an aspect of social structure can be threatened to achieve a momentary reversal of power. Next, I will mention five common practices through which vendors resist.
First, vendors seek support from sympathetic groups such as neighbours and small business owners, but also from politicians or higher-ranking officers who need the poor’s support to take or retain office (Holland, 2017; Konzen, 2013; Meneses-Reyes, 2013). I saw them, for example, taking care of small businesses during temporary absences of their owners, or offering special discounts to ‘loyal customers’. In fact, as Devlin (2018b) argues, it’s ‘easier’ for the police and public officers to push less sympathetic characters (panhandlers, sex workers or squeegee men) out of public space. It is also common for vendors to turn to someone occupying a higher social position to demand deference and disrupt hierarchy. Perhaps better than nothing, forbearance is undesirable because it occurs precisely when the state fails in its positive duties of welfare provision (Holland, 2017). Interestingly, the leader of a small group of vendors explained:
Secondly, vendors resist interventions by manipulating social roles and pretending to be something or someone they are not. For instance, female vendors claim they are pregnant, and men claim they are disabled to enact the position of someone needier or less powerful to dissuade the police from evicting them. I met a female street vendor whose primary strategy was to scream when the police approached her: ‘I just shout and shout so that people think that they are trying to touch me inappropriately. As my mother always told me, I was born with this pair of blue eyes for a reason. Hahaha… don’t give me that look! Everyone tries to get some leverage with what they have.’
Thirdly, vendors resist by colonizing space when ignored. During my fieldwork, vendors resisted evictions by literally camping near the local mayor’s offices. Public officers were so irritated with their occupation that they quickly reached an agreement. This practice has been reported by Konzen (2013) in Acapulco. He argues that street vendors make use of public space ‘not only as means of economic subsistence for their families, but also for political activism’.
Fourth, street vendors resist ‘using’ the law in at least two ways. The first is by bending the law, and they do so by relying on the incompleteness and indeterminacy of the normative system. In Colombia, as in many other countries, restrictions only apply to stationary and semi-stationary vendors. Vendors subvert the purpose of the rule by carrying their goods with them while moving (walking). Constant movement allows them to avoid evictions and legal control, in other words, to resist authority. Meneses-Reyes (2013: 17) argues that one of the most effective ways in which vendors resist in Mexico City is through movement patterns: ‘street vendors have learned that in a system of rules based upon the principle of being out of place, movement has served as one of the best ways to resist authority’. However, being on the move comes at a price, as a female vendor argued:
The second way street vendors resist is by activating the adjudication process and filing a tutela. The tutela is an injunction allowing individuals to seek immediate protection of their constitutionally guaranteed rights. Any person can file an injunction without a lawyer before any judge, and judges have no more than 10 days to issue their ruling. Since its creation, massive numbers of citizens have turned to courts seeking the realization of their rights. As of July 2020, approximately eight (8) million tutelas had been filed since injunction was created in 1991. However, as Fleischer and I argue, structural barriers make it difficult for vendors to activate the entire adjudication process, which means that many tutelas are actually filed by political leaders on their behalf. Yet, once street vendors learn about the (symbolic) power of the law, they use it as a powerful weapon to fight being evicted or fined by appropriating the legal language in their interactions with city officials and the police (Porras-Santanilla & Fleischer, n.d.). Regarding eviction processes, judges have held that the state must guarantee that street vendors will have other means of subsistence before evictions take place, fines are imposed, and/or goods are confiscated.
Finally, acts of resistance sometimes include face-to-face violent confrontations with the police.
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All acts of resistance are based on the expectation that individuals should be allowed to eliminate all barriers (including derecho de policía) to make a living and survive. Any external legislation that comes into conflict with that simple but extremely powerful non-written rule will not achieve its intended effects, unless compliance is coerced through the overwhelming power of authority. Physical acts of violence are not so common, but it should be made crystal clear that street vendors are willing to do anything to survive. After the police tried to evict her, a street vendor told me:
Phase 4: Tension and agreement breaching. The game restarts
Tension builds amid police threats and street vendor resistance strategies. Crisis is reached. As both parties have strong incentives to negotiate, it is the first thing they do. I often heard sentences like ‘let’s reach an agreement for now and talk about permanent solutions later’, or ‘let’s find a way to get through December’. Unfortunately, rules to sanitize poverty or hide the face of misery are rarely applicable. Therefore, most street vendors fail to comply with coexistence agreements in the short term. A frustrated lawyer at the mayor’s office in Ciudad Bolívar told me:
Yet, according to my analysis, it is very difficult for street vendors to follow this type of rules. A female street vendor explained her relationship with the law in what qualifies as one of the most interesting statements in this paper:
Once coexistence agreements are breached, the script repeats itself: complaints pile up, tension rises, and the police and public officers intervene as street vendors try to resist. Crisis is reached, and the game restarts. I have seen this for the past 10 years. However, with the recent Covid-19 health emergency, something new is happening. While I was writing this paper, the mayor of Bogotá announced that the city’s poorest and most vulnerable families would receive a guaranteed minimum income so that they could remain home and avoid being infected with COVID-19. Suddenly, it was clear that issuing rules or announcing fines were not enough to prevent people from working on the street. During the pandemic, the state could not afford to play the game with street vendors because the stakes were too high. Loosing lives and the health system’s collapse became imminent threats. Let’s see what happens once the health emergency is over.
Closing remarks
Efforts to eliminate or limit street vending will not be successful or sustainable until the state makes the political and fiscal commitment to offer substantial employment programs and/or guarantee a minimum income to vulnerable families. Conventional wisdom pointing towards strengthening state institutions for governments to be able to enforce their laws has been attempted and has failed. However, if governments keep up and extend welfare programs launched during the pandemic, we might see a considerable reduction in the most precarious/desperate forms of street vending. As Holland (2017: 326) argues: ‘(…) the central issue is not how to socialize the urban poor to understand their class interests or to train bureaucrats to enforce the law. Rather, it is how to strengthen welfare provision and provide vital social goods so that the poor get more and expect more from expansions in the welfare state.’
Until this happens, vendors will continue to use all ‘weapons’ at their disposal to make a living and survive. Interestingly, the law is one of the main weapons providing street vendors with ‘working stability’ or high degrees of legitimacy in a low-income outer locality of Bogotá. Chances of improving their performance in the game increase substantially when vendors rely on the incompleteness and indeterminacy of the normative system, or when they activate the adjudication process and file a tutela. Vendors elsewhere have relied on the indeterminacy of the rule of law and employed different strategies to resist authority, such as moving or working early or late (Meneses-Reyes, 2013). However, to my knowledge, the possibility of filing a legal action that can be used by subaltern urban residents to activate the adjudication process without a lawyer, with short-term results, is particular to Colombia. Any judge in Colombia can order to stop an eviction from taking place as he/she understands that regulations against street vending are only aspirational until the country can offer employment alternatives or guaranteed minimum income to poor families whose livelihood depends on it.
I want to highlight that resistance strategies employed by street vendors, either combined or applied at different stages of the game, provide them with high levels of legitimacy. In fact, the vendors I interacted with had been working on the street for 10–15 years. That makes street vending more stable than many other precarious jobs, such as domestic service or construction. Hopefully, vendor organizations and policymakers concerned with distributive justice will inform their own struggles with practices that have positively impacted the socio-material realities of the vendors’ lives described in this paper.
Footnotes
Acknowledgements
I want to thank Nicholas Blomley for his brilliant ideas, encouragement, patience, and generosity. I also want to thank Diana Ojeda, Carolina Olarte, Juan Amaya, Valentina Montoya and my colleagues who participated in the workshop where the idea of publishing this special came up. Most importantly, I want to thank Andrés Rodríguez for helping me to substantially improve the reflections in this paper, and Tiziana Laudato and Viviana Gamboa for her style and language correction.
Declaration of conflicting interests
The author(s) declared no potential conflicts of interest with respect to the research, authorship, and/or publication of this article.
Funding
The author(s) received no financial support for the research, authorship, and/or publication of this article.
