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Negotiating a ‘New Nepal’

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Deepak Thapa explores the extraordinary changes brought about through the peace process in Nepal – ending a conflict rooted in the exclusion of more than 70 per cent of the population. His narrative begins with the end of the Maoist insurgency, following the success of the ‘People’s Movement’ and the formal signing of the Comprehensive Peace Agreement in 2006. He outlines how in Nepal’s peace process, inclusion has been used to refer both to ‘inclusive governance’ through, for example, granting citizenship papers to people previously deprived of them and declaring Nepal a secular and federal state; and building an ‘inclusive society’ – to ensure equality of opportunity and representation for all Nepalis. The ‘principle of inclusion’ developed into the principle of ‘proportional inclusion’ in the context of constitution-building, which implied quotas for social groups and delineating parliamentary constituencies primarily on the basis of population. Despite this focus at the centre of Nepal’s peace process, realising societal inclusion has proved complicated, in part because there was no consensus about what exactly this would mean in practice.

In assessing the relationship between inclusion and the peace process, Thapa concludes that increases in political representation for marginalised interest groups are likely to prevent significant violence in Nepal for the time being. But there is a high probability that incumbent elites will continue to try to reverse inclusive gains – forgetting that inequality and exclusion were sources of grievance and conflict in the past and can be again in the future.

 

Understanding inclusion in Nepal

One major outcome of the 2006 People’s Movement was the revival of the parliament dissolved four years earlier, and it was this body that adopted the first formal measures towards building a more inclusive state. Through a historic declaration, the House of Representatives pledged to ‘establish inclusive governance’ through a ‘restructuring of the state’, granting citizenship papers to people deprived of them – mainly Madhesis (people with origins in the southern Tarai plains) – and making the Nepali Army inclusive. It also declared Nepal a secular state. Driving these changes was the SPA that had come to power after the reinstatement of parliament. Further reforms were enacted over time in conjunction with the Maoists, who had been the force mainly responsible for pushing inclusion to the fore of mainstream politics.

Although in the end they happened very quickly, these steps had actually been years in the making, in line with the gradual acknowledgement by both the state and the major political parties that one of the primary drivers of the Maoist insurgency was the wholesale exclusion experienced by large sections of society. The excluded groups, who make up close to 70 per cent of the population, are the broad social categories of Dalits (formerly, ‘untouchables’), Janajatis (indigenous peoples), Madhesis, and Muslims – as opposed to those who have historically formed the country’s social and political elite, the ‘upper-caste’ Hindus from the hills, now known as the Khas Arya.

Most of these excluded groups had been mobilising for decades, seeking a greater role in public life and the adoption of government policies to recognise, promote and preserve Nepal’s socio-cultural diversity. But it was only after the Maoist insurgency incorporated many of the demands of marginalised groups, thereby attracting them to their cause and contributing to rapid gains on the ground, that their aspirations – as well as those of the women’s movement – would move to the political centre-stage.

Around five years into the conflict, the first attempts were made by the government to push for structural changes, such as declaring untouchability a crime, and setting up commissions to protect the rights of women and Dalits. These limited efforts were not enough to put the brakes on a movement seeking a deeper structural transformation. Over time, political parties made increasingly significant commitments to ending exclusion, but because the parties were sidelined by the royal takeover in 2002, these remained nothing more than promises.

The first serious indication that the political parties would indeed follow through on these promises came when the SPA signed the 12-Point Agreement with the Maoists in November 2005, making common cause against the king. The agreement declared that ‘there is an imperative need for implementing the concept of full democracy through a forward-looking restructuring of the state to resolve the problems related to all sectors’.

Restructuring the state was thus the basis for a ‘New Nepal’, an idea that received a further boost through the increasingly positive discussions leading up to the CPA in November 2006. Accordingly, the SPA and the Maoists agreed that the state would be transformed into an ‘inclusive, democratic and progressive one’ with a view to ending discrimination along ‘class, ethnic, linguistic, gender, cultural, religious and regional’ dimensions. They also agreed on an electoral system that would ensure better representation of the marginalised groups, including women. The Interim Constitution enacted in January 2007, which remained in place until September 2015, was replete with language on how better inclusion could be achieved.

In the first couple of years after the 2006 People’s Movement the country moved at dizzying speed towards that goal. The declaration of a secular state undercut the legitimacy the monarchy had derived from the state religion, Hinduism, but also heeded a decades-long demand of the country’s religious minorities – and of myriad communist parties since the 1950s. Thereafter came a number of laws:

  • The awkwardly titled Act to Amend Some Nepal Acts to Maintain Gender Equality 2006, with its preamble stating the need to amend the ‘discriminatory provisions between women and men in prevailing Nepal laws’, led to the amendment of scores of other acts.
  • The Nepal Citizenship Act 2006 granted near-equal rights to men and women to pass on citizenship to their children.
  • The Civil Service Act 1992 was amended to reserve 45 per cent of government jobs for women, Dalits, Janajatis, Madhesis, the disabled, and those from ‘backward’ regions – consisting of nine districts in Nepal’s north-west.
  • The ratification of the ILO Convention on Indigenous and Tribal Peoples and the subsequent adoption of the United Nations Declaration on the Rights of Indigenous Peoples, was symbolically important to Janajatis.
  • The Constituent Assembly Election Act 2007 allocated 56 per cent of the seats on a basis of proportional representation (PR) and 44 per cent on a first-past-the-post (FPTP) or plurality vote. Quotas were also set for women, Dalits, Janajatis, Madhesis, Khas Arya and residents of ‘backward regions’. Together with the proviso that women had to constitute at least 33 per cent of any party’s contingent in the CA, the body elected in 2008 provided for social and gender inclusion on an unprecedented scale.

Laws were also made to counter caste-based discrimination and to make domestic violence a criminal act. A new national anthem was adopted that reflected the mood of the country at the time and celebrated Nepal’s great diversity in all its forms.

It is an indication of where the country stood at the time that one of the clearest articulations of the concept of inclusion came from a government document, the Three-Year Interim Plan (2007–10):

Inclusion means to fulfil the physical, emotional and basic needs of all the people, groups or castes. It has to be achieved by respecting their dignity and their own culture and also reducing the disparities between excluded and advantaged groups and by reducing the gap in the existing opportunities and access. In addition to this, it is to help to build a just society by ensuring rightful sharing of power and resources for their active participation as a citizen.

Federalism fiasco

There was an initial (major) hiccup when Madhesi activists decried the absence of any indication in the Interim Constitution (2007) that Nepal would devolve into a federal state. Following strong agitation by Madhesis, and to a lesser extent by Janajati groups, the Interim Constitution was amended to declare Nepal to also be a ‘federal’ state. Federalism had long been considered key to an inclusive Nepal, initially by Madhesi parties, and, after the 1990 reinstatement of democracy, also by Janajati activists. Both believed that the creation of autonomous political units within Nepal would be the most effective way to break the stranglehold of the dominant Khas Arya, and, by extension, realise full citizenship rights and the benefits that go with them. That was the position favoured by the Maoists and one of the platforms on which they campaigned during the first CA election in 2008.

The Communist Party of Nepal (Maoist) emerged as the largest political party in the first CA, with Madhesi parties also faring well. Although the Maoists garnered a majority in the CA with the support of like-minded parties, they did not push for federalisation along ethnic lines. This was partly to do with influential Khas Arya Maoist leaders who opposed provinces named after some of the larger Janajati communities – even though the Maoists had actually established nine such autonomous areas during the insurgency itself. Perhaps more anathema to the three major political parties – the Maoists, the Nepali Congress (NC) and the Communist Party of Nepal (Unified Marxist-Leninist – hereafter, UML) – and also to many Janajatis, most of whom are from the hills, was the notion of a single Tarai province stretching east to west across the south of the country as advocated by Madhesi leaders. For the by-now reluctant Maoist leadership, it was perhaps fortuitous that they simply did not have the numbers to make good on their campaign promise; the Interim Constitution called for consensus on all the articles to be adopted for the new constitution, failing which approval of two-thirds of the CA would be required on each provision. This was beyond the strength the Maoists could muster in the CA.

It should be noted that none of the political parties of Nepal are defined by ethnicity, with the exception of the Madhesi parties and some smaller Janajati ones, and even those not exclusively. But all the larger parties are led and controlled by Khas Arya men. Owing to the pace of change, the continual pressure for more reform, and the political and public dissonance over federalism, the Khas Arya community in general began to see inclusion as a zero-sum game in which they would lose out. That was the mood when the first CA dissolved in 2012, with the Maoists, the NC and the UML having failed to agree on provincial boundaries. Their leaders did not allow a vote in the CA as per the terms of the constitution, possibly fearing that the diverse body could end up adopting a federal model not to their liking. Thus, differences among political parties and social groups over the form of federalism ultimately proved to be the undoing of Nepal’s ‘progressive moment’.

Earthquake and the new constitution

A second Constituent Assembly was elected in late 2013, and this time the results proved dramatically different. An anti-incumbency mood, the failure to write a new constitution, and a much more negative socio-political atmosphere over federalism ensured that the progressive forces represented by the Maoists and the Madhesis had a much-reduced presence. The NC and the UML, on the other hand, together approached a two-thirds majority, which they could have easily mustered with small anti-federalist parties – to the right and the left. To their credit, the NC and the UML did not make use of that potential. The two parties would also have been keen to avoid a spillover of differences onto the streets, as threatened by the Maoists and their allies. And so the discussions on federalism continued with stated positions unchanged on all sides.

That shifted with the April 2015 earthquake which devastated a third of the country. As Nepal reeled under the challenge of reconstruction, and calls were made for a united national effort, a breakthrough was achieved among the three major parties. The result was the speedy adoption of a constitution through a process that lasted just over three months. There was no debate worth the name either publicly or in the CA and the new statute faced vehement Madhesi opposition regarding provincial boundaries, particularly in how the Tarai was split among five of the seven new provinces.

There was also opposition from other groups to various provisions that appeared designed to subvert earlier reforms. The first of these concerned citizenship rights for women: the 2015 constitution reversed the 2006 Citizenship Act and the rights women had gained with respect to passing on citizenship to their children. The second was on secularism, which was redefined to include the practice of Hinduism, including retaining the status of the cow, sacred to Hindus, as the national animal. Third, ‘indigent’ Khas Arya were included among the groups eligible for affirmative action. Finally, while the mixed electoral system was retained for both the federal parliament and provincial assemblies, changes were made in the ratio between the FPTP and PR from 44:56 to 60:40, undermining the formula that has been the basis of better representation of the marginalised in the two CAs. The response from the leaders accused of drafting a less inclusive constitution was to provide for statutory commissions for all the under-represented social groups, including women. The remits and utility of these commissions are still unknown, however, as more than three years later they have yet to be formed.

Despite these shortcomings, opposition to the 2015 Constitution has not gained much traction. A blockade was enforced soon after its adoption along the southern border by Madhesi activists working in tandem with the Indian state, leading to nationwide shortages of supplies, including fuel. The blockade ended with a constitutional amendment that provided for representation in government employment, not under the earlier ‘principle of inclusion’ but the ‘principle of proportional inclusion’, which would mean quotas in proportion to social groups; and delineating parliamentary constituencies primarily on the basis of population, a major demand of Madhesis from the Tarai.

Inclusion today

The preamble of the 2015 Constitution recognises Nepal as ‘multi-ethnic, multi-lingual, multi-religious, multi-cultural’ and resolves ‘to build an egalitarian society founded on the proportional, inclusive and participatory principles in order to ensure economic equality, prosperity and social justice, by eliminating discrimination based on class, caste, region, language, religion and gender and all forms of caste-based untouchability’. As such, there appears to be no turning back from the inclusion agenda. The Constitution provides room for policies that foster greater participation in all spheres of public life for Nepal’s diverse population.

An important reform is the reservations for excluded groups at all organisational levels in the major political parties, which will likely have a highly positive impact in terms of political representation in years to come. Others include the introduction of language interpreters in the court system to assist the huge proportion of people who cannot comfortably speak Nepali, the provision of scholarships for marginalised communities and girls in education, and the drive to increase gender and social diversity in the non-government sector.

The quota system in the civil service is also beginning to make its impact felt, particularly considering the initial difficulties faced in filling up the reserved seats. Thus, while in 2010/11 only 35 per cent of those seats had been filled, by 2017/18 almost the entire quota of 45 per cent had been achieved. In terms of actual numbers this means that of the 41,068 civil service positions filled between those years, 16,939 (41 per cent) were from the reserved categories, and 5,728 (14 per cent) were women. (These figures do not account for those eligible for reservations who choose to enter through the ‘open’ seats.)

Quotas have also been instituted in elections to all three tiers of government – federal, provincial and municipal. At the municipal level, one of the party candidates for the top two posts has to be a woman and, at the ward level, of the four members at least two must be women, one of whom has to be a Dalit. With the most marginalised Dalits guaranteed representation in such large numbers, representation at the local level has seen some balancing out. Hence, the dominant Khas Arya, who make up 31 per cent of the national population, won only 34 per cent of local government seats. These figures mask their hold over positions of power, though, since they comprise 45 per cent of the all-important municipal chiefs and deputies and ward chairs. It is a somewhat similar trend going higher up, with the Khas Arya holding 44 per cent of the seats in the seven provincial assemblies and 45 per cent in the federal parliament. The latter is worrisome given that it reflects a gradual shift upwards from the first and second CAs (where the Khas Arya were 33 and 41 per cent, respectively) even if it compares favourably to their domination of the three parliaments elected in the 1990s (54, 62 and 58 per cent, in turn).

There are also unresolved issues. Most tellingly, the presence of so many women in local government has not translated into substantive changes due to society’s ingrained patriarchy. More than 90 per cent of the deputy mayors and vice-chairs are women but the common refrain from across the country has been that the men have not parted with responsibilities, even those sanctioned by law. Many of the women representatives are new to politics and often lack a basic understanding of governance matters, although many have leadership backgrounds in other organisational settings, and any effort to build on their existing skills can easily alleviate some of these problems. Regardless of the current experience, if the past is any guide, within another election cycle or two women are likely to gain increasing voice and influence, and should slowly change the leadership structure of political parties – from the bottom to the top.

After a decade of conflict and another of political transition, there seems to be little appetite among marginalised communities to agitate for further structural change. The mood seems to be one of wait-and-watch as the experiment with federalism continues despite some efforts being made to claw back achievements towards greater inclusion. The higher degree of political representation for all groups is likely to allay further conflict for now. But the inclusion agenda remains contested and attempts will continue to be made to erode it further by dominant groups, seemingly having forgotten rather soon that pervasive inequalities and exclusion can easily be a source of grievance and potential conflict in the future.

Issue editor

Andy Carl

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Andy Carl is an experienced peacebuilding practitioner with a career of leadership in the NGO sector. Andy currently works as an independent writer and advisor to individuals, groups and organisations engaged in working on peace, justice and social change processes. He helped establish International Alert in 1989 and in 1994 he co-founded Conciliation Resources where he was Executive Director for 22 years.