[The
IPs- indigenous nationalities (Adivasi Janajati) of Nepal officially comprise 8.4
million people, or 37.19% of the total population, although indigenous peoples’
organizations claim a larger figure of more than 50%. Even though they
constitute a significant proportion of the population, throughout the history
of Nepal indigenous peoples
have been marginalized in terms of language, culture, and political and
economic opportunities.
The
2001 census listed the population as belonging to 50 Hindu castes, 43
indigenous peoples, 2 Muslim groups, 4 religious groups and 3 unidentified
groups. The census, however, failed to provide data on 16 indigenous
nationalities as the Nepal government has
legally recognized 59 indigenous nationalities under the National Foundation
for Development of Indigenous Nationalities (NFDIN) Act of 2002. Controversial
recommendations for a revision of the list have recently been made.
The
2007 Interim Constitution of Nepal focuses on promoting cultural diversity and
talks about enhancing the skills, knowledge and rights of indigenous peoples.
The indigenous peoples of Nepal are waiting to see how
these intentions will be made concrete in the new constitution, which is in the
process of being promulgated. In 2007, the Government of Nepal also ratified
ILO Convention 169 on Indigenous and Tribal Peoples and voted in favour of the
UN Declaration on the Rights of Indigenous Peoples (UNDRIP). The implementation
of ILO Convention 169 is still wanting, however, and it is yet to be seen how
the new constitution will bring national laws into line with the provisions of
the ILO Convention and the UNDRIP.]
By Krishna Bahadur Bhattachan PhD
Uphill battle to establish identity-based federalism
 |
| Young Magar girls of Gorkha Heramtari, Nepal, line up to welcome guests for a local programme. Image Ekantipur |
The
top leaders of all the three main political parties (NC, CPN-UML and Communist Party
of Nepal (CPN)-Maoist) are hatching conspiracies that involve many different
highly coordinated actions with many twists and turns. Last year, the dominant
caste groups, i.e. Bahun and Chhetris, were visible on a political front (in
the CA, Legislature-Parliament and political parties), agreeing to devalue identity-based
federalism, and on an intellectual front, organizing international seminars and
(mis)using the media to deconstruct identity-based federalism.
On
1 November 2011, the three dominant political parties and the Madhesi political
parties struck a seven-point agreement to the effect that the government would
present a bill seeking an 11th amendment to the Article 138 (2) of the Interim Constitution.2
The bill would provide for the formation of an experts’ committee from within
the CA by scrapping the existing provision for a state restructuring commission,
which had become outdated and irrelevant as it was supposed to have been formed
before the birth of the CA. The government registered the bill on 4 November.
The top leaders of the three major political parties, namely the CPN-Maoist,
CPN-UML and NC, all led by the dominant Bahun caste, decided to endorse the
proposed bill in the Legislature-Parliament but the House failed to pass the
bill due to very strong objections from the indigenous caucus and Mohan Baidhya,
who leads one of the three factions of CPN-Maoist lawmakers/CA members and who
stood firm for securing the rights of indigenous peoples and other excluded
groups.
The
government’s second attempt to pass the bill was also thwarted by the Indigenous
Caucus and the Baidhya faction.3 They opposed the proposed amendment bill and
demanded that the committee’s Terms of Reference be determined prior to the
proposed amendment so as to work further on, and not dismantle, the
recommendations made by the CRSSSP. At the same time, the indigenous peoples’
movement staged a protest against the bill outside the Legislature-Parliament
building. As a result, the government withdrew the constitutional amendment
bill on 18 November.
The
main political parties and the government subsequently, belatedly, formed the
State Restructuring Commission with a limited mandate to provide further
suggestions based on the reports and recommendations made by the CRSSSP to the CA. 2011 will thus go down in history
as a watershed in the struggle of Nepal’s indigenous peoples for enforcement of
their human rights in accordance with the international standards laid out in
the UNDRIP and ILO Convention No. 169.
Defining moment postponed once more
The
drafting of the new constitution was supposed to be finalized by 28
May 2011
but, as the work was incomplete, the CA’s term was extended three times and
finalization postponed until first 30 August, then November 2011 and, finally, 28
May 2012 .
The Supreme Court ruled on 25 November 2011 that the CA could not
further extend its term and that if the work of drafting the constitution were
still incomplete, there would either have to be fresh elections or another
alternative found. The Nepal government tried to
file a writ petition to review the decision but the Court refused to register
the petition and, on 27 December 2011 , the Supreme Court
rejected the parliament’s and government’s pleas to review its decision.
The
continuing hatching of conspiracies against the rights of indigenous peoples, Madhesi
and other oppressed and excluded groups/communities, as well as intra-party and
inter-party political wrangling for power, appears to be making the CA unable
to produce the new constitution within the extended timeframe. The constitution
would be drafted in time if indigenous peoples and Madhesis agreed to
restructure the state by giving primacy to ability, but this is next to
impossible.
It
means the Nepali Congress and CPN-UML will try to dillydally in order to buy time
to hatch more conspiracies aimed at dividing indigenous peoples and Madhesis. To
do this, they are using the cards of integrating the Peoples’ Liberation Army
into the Nepal Army and returning confiscated lands to their owners as pre-conditions
for writing the constitution.
With
a deal reached between the political parties on 1
November 2011
on the integration and rehabilitation of Maoist fighters – a major stumbling
block to the constitution-drafting process – the work is now speeding up.
However, with previous attempts by the NC and CPN-UML to divide indigenous
peoples and Madhesis in order to do away with ethnic-based federalism, there
are no guarantees that the constitution will address the fundamental rights of
indigenous peoples.
Claim to indigenous identity by dominant groups
As
part of the efforts to curtail indigenous peoples’ rights, Brahman Samaj (“Society”), Chhetri Samaj and Khas Chhetri Samaj (all very recent
organizational offshoots of the dominant caste groups) are demanding
recognition of Bahun and Chhetris as indigenous peoples and are against the
restructuring of the state or federalism based on identity and/or ethnicity.
They are making such demands by rallying in the streets, staging sit-ins in
front of the CA, submitting memoranda to the main political parties and
expressing their views in both the print and electronic media. Although Brahman
and Chhetris are not indigenous in Nepal , on 18 November, the
government formed a nine-member taskforce to enlist Chhetris as indigenous
peoples. The coordinator of the task force, Prof. Chhetri, claims:
“Chhetris
have been residents of Nepal for thousands of
years, yet they were not recognized as an indigenous people. Therefore, the
taskforce will come with credible evidence to prove that Chhetris are
aboriginal inhabitants”.4 The formation of Brahman and Chhetri organizations
demanding their recognition as indigenous peoples and rejecting indigenous
peoples’ rights to self-determination, autonomy and self-rule is a malicious
attempt to continue their centuries-long domination. Hence, it appears likely
that violent communal and/or armed confrontations between Bahun-Chhetris and
indigenous peoples could break out in the near future.
DFID against indigenous peoples
The
Nepal Federation of Indigenous Nationalities (NEFIN), an umbrella organization of
59 indigenous peoples recognized by the government, called a nationwide strike
on 27 April. The previous week, the British Department for International Development
(DFID)-Nepal had publicly
announced that it would no longer continue its financial support of NEFIN’s
Janajati Empowerment Project II (JEP II) project due to NEFIN’s continued
involvement in national strikes and bandhs.5 NEFIN uses bandhs to protest for the constitutional rights of Janajati and people from
marginalised communities. In its strong response to DFID-Nepal’s decision to
stop funding the JEP II, NEFIN accused DFID of practising “double standards” in
the name of providing assistance for transparency and good governance and blamed
it of “‘interfering’ in the internal matters of a sovereign country.”
Mega Front
demands FPIC mechanism
During
2011, the CA and the Nepal government did not establish the Free, Prior and
Informed Consent (FPIC) mechanism as recommended by the ICERD Committee on 13
March 2009 and the Special Rapporteur on the rights of indigenous peoples on 20
July 2009 and 15 September 2010 (see The Indigenous World 2011), despite the fact
that, on 11 March 2010, the Nepal government had responded to the Special
Rapporteur’s letter by saying that: “Constituent Assembly regulations provide
that the Constituent Assembly Chairman may form additional committees as needed”
and that: “In addition to existing means of representation in the Constituent
Assembly, special mechanisms should be developed for consultations with the
Adivasi Janajati, through their own representative institutions, in relation to
proposals for new constitutional provisions that affect them.” On 16
January 2011 ,
the Indigenous Peoples’ Mega Front thus submitted a memorandum to the
Chairperson of the CA calling on him to establish the mechanism. However, he
merely stated that he would inform all the political parties represented in the
CA about it, implying that he had no power to establish such a mechanism.
Indigenous women submit historic CEDAW Shadow Report
The
National Indigenous Women’s Federation (NIWF) and the Lawyers’ Association for
Human Rights of Nepalese Indigenous Peoples (LAHURNIP), with support from the
Forest Peoples’ Programme and International Women’s Rights Action Watch Asia
Pacific, submitted a Shadow Report entitled The Rights of Indigenous Women in Nepal for the combined 4th
and 5th Committee on the Elimination of Discrimination against Women (CEDAW)
Periodic Reports of Nepal.8 On 18 July 2011, Yasso Kanti Bhattachan, one of the
founders of and current advisor to NIWF, made a three-minute presentation to
the CEDAW Committee during the informal meeting between NGOs and CEDAW
committee members in New York. The Committee responded well to the discussions
that the delegation had with them over the course of the session, and
recommendations were made to the Nepal state in response to three key demands
in the shadow report, namely equitable political participation through quotas
for indigenous women, the need to address access to education for indigenous
girls and the need to more effectively respond to the ongoing challenges of
bonded labour among the Tharu people.
REDD
Under
the first-ever pilot Forest Carbon Trust Fund in Nepal, representatives from three
watersheds in Dolakha, Gorkha and Chitwan districts received a total of USD
95,000 on behalf of community forest user groups at a ceremony organized at the
International Centre for Integrated Mountain Development (ICIMOD) on 15 June
2011.11 This initiative is being implemented by ICIMOD and its partners, the Federation
of Community Forestry Users, Nepal (FECOFUN) and the Asia Network for
Sustainable Agriculture and Bioresources (ANSAB). Both FECOFUN and ANSAB are
non-indigenous organizations, and most of the beneficiaries were non-indigenous
peoples. This indicates that, in general, there is still a long way to go to
ensure full and effective participation of indigenous peoples in community forestry
and REDD in Nepal .
Notes and References
1
Madhesis (referring to the Hindu caste groups of the Terai region) are
regionally excluded groups but, since the Madhesi movement of 2007, they have
emerged as the fourth most powerful political force. Their issues, such as
regional autonomy, are, however, yet to be fulfilled.
2
The Madhesi political parties, like indigenous peoples, are excluded by the
dominant Hill Hindu caste groups but, in this case, they aligned themselves
with the dominant political parties with the aim of not allowing indigenous
peoples of the Terai region to have their own autonomy and self-rule.
3
“House fails to pass bill again - Baidhya faction‚ indigenous caucus stand inopposition”. The
Himalayan Times.
17 November 2011 . Accessed on 1
January 2012
from:
4
“Chhetri taskforce starts work”. Ekantipur.com 18
November 2011 .
Accessed on 1 January 2012
5
Bandh is a form of strike
used mainly in Nepal , Bangladesh and India . It can be local,
regional or national. In most of the Bandhs, no vehicle is allowed to run and no shop is allowed
to open. It paralyzes the normal life and the Bandh organizers succeed in drawing public attention to
their
demands.
6
“DFID promoting corruption: NEFIN”. Himalayan Times, 17/5- 2011. 1
January 2012 :
7
“Vow to ensure indigenous people’s rights”. Ekantipur.com, 29
January 2012
8 CEDAW
10
“Indigenous women raise their voices at CEDAW”. Posted on Forest Peoples Programme’s
website on
7 October 2011 . Accessed on 29
January, 2012
from: Accessed on 29
January 2012 .
Krishna B. Bhattachan belongs to the Thakali
indigenous peoples. He is one of the
founder faculty members and former Head of the Department of Sociology and
Anthropology at Tribhuvn University Nepal Mega Front , Nepal