- Brief Note -
Indigenous Peoples and the Right to Participate in Decision-Making in Nepal
By
Dr. Krishna B. Bhattachan
Central Department of Sociology & Anthropology
Tribhuvan University
Kirtipur, Kathmandu
Nepal
kchan@wlink.com.np
bhattachan.k@gmail.com
tel. +977-9841295855 or +977-1-5551469
A brief note presented in an "International Expert Seminar on Indigenous Peoples and
the Right to Participate in Decision-Making" jointly organized by the Asia Indigenous
Peoples Pact (AIPP) and the International Work Group for Indigenous Affairs (IWGIA),
in cooperation with EMRIP members in Chiang Mai, Thailand
20 - 22 January 2010
1. Analysis of the incorporation and implementation of the international human
rights framework, including related jurisprudence, with regard to indigenous
peoples and the right to participate in decision-making
Nepal started acceding or ratifying conventions and covenants, and adopting
declaration and plan of action related to international instruments of human rights since
January 7, 1963 with signing on two conventions and one supplementary convention on
slavery. Nepal ratified International Convention on the Elimination of All Forms of racial
Discrimination on January 30, 1971. Although Nepal ratified this convention, the
authoritarian regime of the King did not implement it; indigenous peoples were not
allowed not only to get organized politically and raise their voice for their rights but
even to get together in picnics. King Mahendra indeed tried to impose the dominant
Hindu religious and cultural values to indigenous peoples through his declared policy of
'One King', 'One Country', 'One Language', 'One Dress'. The indigenous peoples of Nepal
could not use the ICERD due to authoritarian regime of the King imposed through the
partyless Panchayat political system where making voice about indigenous peoples'
rights was considered as "communal", ant-national, secessionist and disintegrationist.
The Dalits ("untouchbale castes") used it in their advocacy but the United Nations has
accepted caste based untouchability as descent based discrimination but not yet
accepted it as a racial discrimination.
With the fall of the Berlin Wall in Germany and a wave of democracy in the Eastern
Europe, Nepal also restored democracy with multi-party political system within
constitutional monarchy in Nepal in 1990, Nepal Government began to ratify many
international instruments of human rights. Nepal ratified convention on the Rights of
Child on September 14, 1990 and Convention on the Elimination of All Forms of
Discrimination against Women on April 22, 1991. International Covenant on Civil and
Political Rights and the its Optional Protocol, and International Covenant on Economic
Social and Cultural Rights were acceded/ratified on May 14, 1991.
Nepal voted Yes to the UN Declaration on the rights of Indigenous Peoples (UNDRIP) at
the UN General Assembly on September 13, 2007. Also, Nepal ratified ILO Convention
No. 169 on August 22, 2006 and deposited it at the ILO, Geneva on September 14, 2007
and it went in force since September 14, 2008. Although the first report was due on
September 14, 2009, Nepal failed to submit it till now. Both ILO C. 169 and the UNDRIP
ensure indigenous peoples' right to participate in decision making, the Nepal
Government has completely ignored to uphold it.
The Treaty Act of 1991 gives primacy to international conventions. Accordingly, if any
provision in the constitution and law contradicts with the Convention, the Convention
prevails. This provision was mentioned in the Constitution of the Kingdom of Nepal,
1990 but it was taken out in the Interim Constitution of Nepal, 2007.
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The United Nations Office of the High Commissioner for Human Rights (UNOHCHR)
after conclusion of nine-day official visit in Nepal by Prof. James Anaya, UN Special
Rapporteur on Indigenous Peoples, stated in a press release of December 2, 2009, "While
noting that a significant number of members of the Constituent Assembly belong to
indigenous communities, Professor Anaya emphasized the need to develop additional
mechanisms in the constitution-making process to consult directly with indigenous
peoples, through their own chosen representatives and in accordance with their own
methods of decision-making, as required by the international standards to which Nepal
has committed." The Special Rapporteur in his recent report-"Situation of Indigenous
Peoples in Nepal"-stated, "However, the Special Rapporteur is of the view that the
indigenous representation and participation in the Constituent Assembly must be
improved or supplemented by other means of indigenous participation in the constitutionmaking process" and " In order for Nepal to comply with the consultation provisions of
Convention 169 and the Declaration as it develops a new constitution, indigenous peoples
must be afforded greater means of participation in the process than is currently available
to them. Unless the existing procedures and mechanisms of the Constitutional Assembly
are significantly altered, separate consultations on the constitution should be carried out
with the Adivasi Janajati through their own representative institutions, in appropriate
forums that are supplemental to the Constituent Assembly."
Nepal has indeed ratified most of the international instruments of human rights but it is
weak in its implementation but in the case of implementation of indigenous peoples' right
it is the weakest.
2. Identification of indigenous peoples’ own decision-making processes and
institutions as well as challenges in maintaining and developing them
There is a conspicuous dearth of literature on identification of indigenous peoples' own
decision making processes and institutions in Nepal. It appears that Nepal's indigenous
peoples' own decision making processes and institutions are at three different stages:
(a) Indigenous Peoples of the mountain regions continue to practice their own
decision making process and have their own institutions in doing so on internal
affairs, and they resist external decision making processes and institutions, but
they have to accept such external decision making on selected areas;
(b) Some Indigenous peoples of the Hills and the Terai have maintained their own
decision making process and have their own institutions but these are
marginalized due to the powerful external decision making process and
institutions; and
(c) Some Indigenous peoples of the Hills and the Terai have completely lost their
own decision making process and have institutions due to the powerful external
decision making process and institutions.
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Out of 75 districts of Nepal, Mustang, Manang and Rasuwa are three districts with
overwhelming population of indigenous peoples. Being remote districts, the
government institutions and legal process have least effect among indigenous peoples
of these districts. Hence, they have been able to continue their tradition of own decision
making processes and institutions unabated. For example, the Marphali Thakali, Tin
Gaunle Thakali, Baragaunle and Loba of Mustang district and Manange of Manang
district have their own decision making process and institutions. As a result, the district
courts in these districts have no work as no one come to seek justice from these
government institutions. Similarly, the Thraus of the Terai have their own Bad Ghar
institution. The Newars of the Kathmandu Valley have their Guthi institution. The
Gurungs have the Naal Sabha institution.
Indigenous peoples have formed their respective organization to make decisions about
their social, cultural and religious life. They have formed the Nepal Federation of
Indigenous Nationalities (NEFIN) and the National Indigenous Women's Federation
(NIWF), Nepal as their umbrella organizations to have internal consultation of political
and non-political issues at the national and local levels.
3. Identification of participatory and consultative mechanisms linked to both State
and relevant non-State institutions and decision-making processes affecting
indigenous peoples as well as challenges in their effective implementation
Although Nepal is a party to ILO C. 169 and has adopted the UN Declaration on
Indigenous Peoples Rights, Nepal has failed to establish participatory and consultative
mechanisms. Currently Nepal is rewriting its constitution and Nepal's indigenous peoples
movement demand to ensure such mechanism in the Constituent Assembly. It has been
aptly noted by Fatimata-Binta Victoire Dah, chairperson of the Committee for the
Elimination of Racial Discrimination, who had issued an early warning to Nepal on
March 13, 2009. The Chairperson wrote: "In the meantime, in connection with the recent
political changes in Nepal and the decision to prepare a new Constitution, issues
concerning the participation of indigenous peoples' freely chosen representatives in
Nepal's constitutional preparation process have been brought to the attention of the
Committee … Nepal's new constitution is currently being drafted by a Constituent
Assembly in which indigenous peoples may only formally participate if they were chosen
by political pa-ties and act in strict conformity with the manifestos of those parties." The
chairperson warned, "I wish to inform you that the Committee, at its 74"' session, held
from 16 February to 6 March 2009, considered this matter under its early warning
procedure with a view to avoiding irreparable harm to indigenous peoples and assisting
Nepal in ensuring that the rights guaranteed by the Conventional are fully recognized and
respected." The Chairperson stated, "The Committee recommends that mechanisms be
established to ensure indigenous peoples' free prior and informed consent in relation to
the constitutional preparation process, and that an indigenous peoples' thematic
committee be set up to guarantee the representation and participation of indigenous
peoples in political life."
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As there was no response from the Nepal Government, the Committee wrote another
letter on September 28, 2009. It stated, "… the Committee had called for the
establishment of a thematic committee for indigenous peoples to guarantee their full
representation and participation in political life. The Committee commends your
Government's intention of addressing indigenous peoples' rights through the Committee
to Protect the Rights of Minority and Marginalized Communities. However, in light of
reports concerning the problems faced by indigenous peoples in aiming to exercise their
right to effective participation, the Committee is concerned that this mechanism may not
be an effective alternative to a specific thematic committee on indigenous peoples, as
proposed by the Committee."
The Special Rapporteur noted, "In its current configuration, the political party system in
Nepal seems to not be fully conducive to indigenous peoples’ effective representation and
participation in decision-making at various levels, from the Constituent Assembly to local
governance … due to internal decision-making structures and practices within existing
political parties, which, due to a number of inherited dynamics, have historically tended
to overlook indigenous peoples’ specific concerns… in relation to indigenous peoples
and other marginalized communities, special mechanisms may be required in order to
ensure their effective enjoyment of the right to political participation."
The main challenges in effective implementation of participatory and consultative
mechanism linked to both State and relevant non-State institutions and decision-making
processes include lack of mechanism and criteria for consultation and participation, nonrecognition of indigenous peoples' issues as a crosscutting issue, lack of political will and
commitment and lack of supportive legal framework, and non-implementation of ILO C.
No. 169, UNDRIP and the recommendations made by Prof. James Anaya, Special
Rapporteur on Indigenous Peoples in his recent report "Situation of Indigenous Peoples
in Nepal".
Also, international donors play significant role in Nepal but the challenges related to
them include lack of mechanisms for consultation and participation with indigenous
peoples, lack of policy of partnership with indigenous peoples' organizations, lack of
clarity and understanding of indigenous peoples issues and resistance to addressing these
issues from within the donor agencies.
The Indigenous Peoples Mega Front, Nepal (Adivasi/Janajati Brihat Morcha, Nepal), an
alliance of more than 105 IPOs including the NEFIN, NIWF, Nepal, LAHURNIP and CA
Member-Assembly, submitted a memorandum to Mr. Subash Nembang, Chair of the
Constituent Assembly and Mr. Madhav Kumar Nepal, Prime Minister of Nepal on
November 20 and 21, 2009 respectively to establish FPIC mechanism and from IPs
Subject Committee in the CA and to implement the recommendations made by the Expert
Committee on ILO C. 169 formed by the Government within December 4, 2009 and to
ensure rights of IPs in the new constitution. As the Nepal Government ignored these
demands of the Front, the Front launched its first phase of movement from December 6,
2009 to press the Government to meet these demands. In this first phase of the movement
the Mega Front successfully organized Sit-In in at Bhadrakali, the central secretariat,
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transportation halt and Sit-In in front of the Chief District Offices in different districts, all
for one hour each, Sit-In in front of the CA building at Baneswor, Torch Procession and
finally Nepal Shut-Down ("Bandh") on January 1, 2010 as part of the first phase of the
movement.
4. Identification of key measures and challenges related to the efforts to guarantee
the right of indigenous peoples to participate in decision-making
The key measures are as follows:
1. Ensure participatory and consultative mechanism as per ILO C. 169 and UNDRIP in
the current constitution making process and also in the new constitution under
preparation by the elected Constituent Assembly.
2. Amend the laws, by-laws and rules and regulation to ensure participatory and
consultative mechanism in accordance to ILO C. 169 and UNDRIP.
3. Establish participatory and consultative mechanism as per ILO C. 169 and UNDRIP
both at the national, regional and local levels, in the formulation, implementation
and monitoring and evaluation of long term and short terms policies, plans,
programs, projects.
4. Establish participatory and consultative mechanism as in all the political parties
registered with the government.
5. Ensure proportional representation and participation of indigenous women at all
levels.
6. Ensure indigenous peoples rights as per ILO C. 169 and UNDRIP in all projects
designed and implemented by bi-lateral, multi-lateral aid agencies and international
non-governmental organizations working in Nepal.
The main challenge facing the indigenous peoples is that the Nepal Government and the
main political parties controlled by the dominant groups do not listen to indigenous
peoples' voice. Therefore, indigenous peoples' mega alliance has launched a peaceful
movement to press its demands and make the Government and the main political parties
to compel to address the outstanding issues of indigenous peoples.
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