Nepal’s Constitution: The good, the bad and the difficult

Archana Tamang, International Consultant Human Rights and Equality

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20 September 2015 marked the new birth of an old nation. Nepal got her first constitution written by her people. A tough, dramatic and often overwhelming road of politicking, slobbering, negotiating; bloodshed, bandhs, celebrations, boycotts, walkouts, walk-ins, groupies’ and free-for-alls. Nepal’s massive earthquake in April too seemed a catalyst in dissolving several divisive sentiments. The tripaal (the tarpaulin sheet used in makeshift relief camps) dissolved barriers and there was a fertile ground to bring about positive changes. Before it all returned to the back and forth status quo. This truth and dare, lies and hide-and-seek, I put it down to the goodness and fallacies of teething democracies. As a Nepali, I am happy we at least have a Constitution. For many women groups and fellow citizens in the Terai and Madhes though, this is not/not yet my constitution.

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The Constitution of Nepal 2072, has several positive aspects. An excerpt from the Preamble restores faith in the system: ‘Determining to create a society based on equity on the basis of proportional inclusive and participatory principles to preserve and promote unity among diversity, socio-cultural solidarity, tolerance and harmony by internalizing the characteristics with multi-ethnic, multilingual, multi-religious, multicultural and geographical diversities, and to ensure economic equality, prosperity and social justice by ending class-based, ethnic, regional, lingual, religious, gender-based and all forms of caste-based untouchability.’

The Constitution has prima facie addressed a number of historically painful issues like caste, gender discrimination, economic polarization and geo-political inequalities. As a base document that now actually exists, it is a promise. However, entire Nepal needs to democratically engage with the document, chapter by chapter, clause by clause, to ensure ownership.

For example, women rights have been mainstreamed and there is a more vocal acknowledgement of equality. However, many issues have fallen in the rain shadow areas of what equality is to mean. The issue of citizenship is one such example. Article 11.2 of the Constitution draft says a person whose father ‘or’ mother is a Nepali at the time of his or her birth, can become Nepali by descent. However, subsequent clauses 3 and 4 override this, say legal experts. These two clauses point out that both parents have to be Nepali, for their children to acquire citizenship by descent. The Interim Constitution 2007, on the other hand, had a provision that any person whose father or mother is a citizen of Nepal was entitled to becoming a citizen.

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Now we find that men are more equal than women, as the constitutional draft denies Nepali women the right to pass on citizenship to their children. It does not seem to accept the existence of single mothers. Children born to single mothers inside the country will be eligible to apply for citizenship through their mothers, only if the whereabouts of their biological fathers are unknown. There is also no provision for children of single mothers born outside the country. The Constituent Assembly (CA) has at this point, rejected the amendment proposal to correct such gender discriminatory provisions.

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Women rights activists had been staging a 24-hour relay hunger strike for over two weeks, demanding equal rights to pass on citizenship to their children. They feel the constitutional draft makes Nepali women, second class citizens. According to a report published by UNHCR in 2011, there were roughly 800,000 stateless people in Nepal. I have a gnawing fear that we will have a geometrical growth in the number of stateless children if the State does not revisit this Constitutional dhara (clause). What would possibly happen if Nepali women chose to be single mothers with the help of science?

We have allowed ourselves to be pushed to the margins for far too long and have been either complacent or defeatist about it. So instead of complaining about inequalities, discrimination and wallowing in learned helplessness, we must and will forge ahead, as equals. Towards reconstruction and regeneration of our country, society, cultures and economies. Neither tolerating stereotypes and discriminatory behaviour nor hiding the fact that we are equally guilty of allowing rights violations to continue.

We will need to put wrongs right, now. We are all Nepalis and therefore, equal.

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