Indigenous World 2019: Nepal
According to the 2011 census, the indigenous nationalities (Adivasi Janajati) of Nepal comprise 36% of the total population of 26.5 million, although indigenous peoples’ organizations claim a larger figure of more than 50%.
The 2011 census listed the population as belonging to 125 castes and ethnic groups, including 63 indigenous peoples; 59 castes, including 15 Dalit castes1; and 3 religious groups, including Muslim groups.
Even though indigenous peoples constitute a significant proportion of the population, throughout the history of Nepal indigenous peoples have been discriminated, marginalised, excluded, subjugated, dominated, exploited and internally colonised by the dominant caste groups in terms of land, territories, resources, language, culture, customary laws, political and economic opportunities, and collective way of life.
The new Constitution of Nepal promulgated in 2015 denies the collective rights and aspirations for identity-based federalism of indigenous peoples,2 in spite of the fact that Nepal has ratified ILO Convention 169 on Indigenous and Tribal Peoples and passed the UN Declaration on the Rights of Indigenous Peoples (UNDRIP) and the World Council of Indigenous Peoples (WCIP) Outcome Document. Their implementation is still wanting. The recent amendments in the laws and draft bills are not in line with the UNDRIP and ILO Convention 169.
Legislation without FPIC
The Criminal (Code) Act, 2017, the Criminal Procedure (Code) Act, 2017, the Civil (Code) Act, 2017 and the Civil Procedure (Code) Act, 2017 went into effect from 17 August 2018.3 According to the International Institute for Democracy and Electoral Assistance (International IDEA):
The government has put forward the proposal to amend 56 laws that are against the constitutional rules promulgated in 2015. According to the spokesperson of the Ministry of Law, Justice and Parliamentary Affairs […] the government has also sent a proposal to the Cabinet regarding another bill that calls for amendment of more than 110 existing laws.4
These laws and bills are not in line with the UNDRIP, ILO Convention 169 and the Outcome Document of the WCIP 2014, and the free, prior and informed consent (FPIC) of indigenous peoples was not obtained by the state during the making, amending, passing or implementation of these laws.
Conflict between Nepal and the European Union
The ruling dominant caste Khas Arya has been unhappy with European donors regarding their provision of support to the Dalit and Madhesi indigenous peoples. Support to help them claim their human rights and social justice through advocacy and dialogue has been especially contentious. The conflict between the rulers of Nepal and the European Union (EU) culminated in 2018. The EU Election Observation Mission (EU EOM) presented its final report on their observation of the House of Representatives and Provincial Assembly elections, which were held in Nepal in two phases (26 November 2017 and 7 December 2017). It included recommendations for elections on 20 March 2018.5 The EU EOM recommended the government to review the impact of the quota system on the ethnic composition of the parliament and to “remove the Khas Arya from the groups included”.6 In Art. 84 (2) of the Constitution of Nepal, the Khas Arya have been defined as consisting of the Kshetri, Brahmin, Thakuri and Sanyasi (Dashami) communities. In its recommendations, the EU stated:
[…] The equality provisions refer only to indigent Khas Arya, but this qualification is not contained in the electoral provision. This is arguably in contravention of international standards on equality, as, under the Convention on the Elimination of All Forms of Discrimination against Women and the Convention on the Elimination of All Forms of Racial Discrimination, affirmative action measures are foreseen only as a means to promote equality.7
In the article, “Is European Union instigating ethnic conflict in Nepal?” the Ministry of Foreign Affairs, the Election Commission of Nepal, the Press Council Nepal and leaders strongly criticised the EU EOM report as “unfounded”, “misleading”, “biased”, “baseless”, “mischievous” and “in contravention with the election observation with the election observation code of conduct....”8 The Indian Express quoted Nepal’s prime minister saying, “I and the Nepali people have felt humiliated by the EU’s report. I humbly request the EU to correct it immediately.”9 The EU response to the government’s objection on the report was that it was as per standard practice for international election observation missions.10
Struggles for lands, territories and resources
Demand for FPIC as well as protests against aggressive development deepened this year. For example:
- The aggressive Road Expansion Project (REP) executed by the government in the ancestral land of the Newa indigenous peoples adversely impacted more than 150,000 peoples.11 Gross human rights violations, including mass-forced eviction, demolishing of symbols of identity such as cultural and religious sites, as well as intimidation, have occurred. The Supreme Court issued its Directive Order on 17 September 2017 on the case of Shanu Shrestha Prime Minister Office et. al. In the full text of the verdict (made available only in 2018), the Court said not to proceed with any work that adversely affects the security of a house, unless there are no alternative solutions; it said to address the rights to relocation and rehousing of the displaced equitably; and to provide benefits and compensation as per the Land Acquisition Act and the Land Acquisition Regulations, and focus on conservation of environment and archaeological sites while implementing any development project.12 On 11 June 2018, the International Labour Organization (ILO) decided to set up a tripartite committee to examine alleged non-observance – relating to Nepal’s REP – of ILO Convention 169 in response to a complaint lodged by the Nepal Telecom Employees’ Union (NTEU).
- With support of the Lawyers’ Association for Human Rights of Nepalese Indigenous Peoples (LAHURNIP), an appeal was launched in the Provincial Court of Sindhuli against the conviction and fining of community leaders who had led a movement against the adverse impact of human rights violations in the form of loss of housing, lands and resources, resulting from the electricity transmission line in the Sindhuli District. On 21 December 2018, the Court reversed the decision of the Chief District Officer (CDO) and the community leaders were acquitted from the charge.13
- On 8 October 2018, with support of LAHURNIP and the Accountability Council, a complaint was lodged requesting mediation by the Head of the Complaint Mechanism of the European Investment Bank (EIB) regarding adverse impacts on particularly indigenous peoples – loss of their lands, resources and livelihood – caused by the high voltage electricity transmission line project in Lamjung. The EIB indicated that it would take the case further and that it is 14
Armed conflict and alleged organised crime
Khambuwan Mukti Morcha Samyukta, an indigenous armed group that has been fighting for separate statehood in the eastern hill districts for the past eight years has, according to a news article, “surrendered weapons and pledged peaceful political activism” to the government. 15 On 5 November 2018, fourteen indigenous leaders of the Mongol Mulbasi Rastriya Force (Kirat), who had been detained in judicial custody since 16 October 2016, were acquitted by the District Court Bhaktapur from the charge that they were involved in organised crime.
The CERD grills the State party
The Committee on the Elimination of Racial Discrimination (CERD) issued its concluding observations on the combined 17th to 23rd periodic reports of Nepal on 29 May 2018 and made several recommendations relating to indigenous peoples. It recommended that “the right of indigenous peoples to participate in government bodies [is] effectively respected and that indigenous peoples can freely choose their representatives”; that laws that criminalise aspects of indigenous cultures are repealed; and that FPIC is obtained “prior to the approval of any project affecting the use and development of their traditional lands and resources”.16
The Committee on the Elimination of Discrimination against Women (CEDAW) considered the sixth periodic report of Nepal at its meetings held on 23 October 2018 in Geneva. A consortium of indigenous women’s organizations17 led by the National Indigenous Women’s Federation (NIWF) had submitted a Shadow Report on the Situation of Rights of Indigenous in Nepal to the CEDAW.18 The CEDAW Shadow Report Preparation Committee (SRPC) with 93 mainstream women’s organizations,19 had invited the indigenous women’s consortium to take part and submit one report, but the indigenous women’s consortium submitted a separate shadow report as the issues of indigenous women’s rights are distinct.
On 14 November 2018, the CEDAW made 15 recommendations to Nepal relating to indigenous women.20 It observed a “lack of recognition of the rights of indigenous women in the Constitution, and the general lack of recognition of the right of indigenous peoples to self-determination”.21 It, therefore, recommended that these rights should be explicitly recognised by amending the constitution in line with the UNDRIP was historic, and indicative of indigenous women’s success at the world stage.
Economic empowerment of indigenous women (NIWF/UNDP)
As a part of the follow-up of the 61st session of the Commission on the Status of Women (CSW) with a special focus on economic empowerment of indigenous women, the UN Development Programme (UNDP) Nepal, together with the NIWF, carried out research on the Economic Empowerment of Indigenous Women in Nepal and published it.22 Its recommendations were that any economic empowerment programmes being or about to be implemented in Nepal should focus on customary knowledge and skills of indigenous women; amend or enact new legislation to give ownership and control over lands, territories and resources in line with UNDRIP and ILO Convention 169; and on developing the indigenous business hub.23
Mounting pressure on the nomadic Raute
The Raute, the last nomadic indigenous peoples of Nepal, were given ID cards that stated the Gurans Rural Municipality in Dailekh district as their permanent address, as ordered by the Ministry of Federal Affairs and General Administration following a Cabinet meeting on 14 June.24 As Raute have no control over their customary lands, territories and resources and as there has been a mounting pressure on them to live a settled life, the distribution of ID cards could lead to the Raute abandoning their nomadic lifestyle.
Notes and references
- Hindu cosmology divides the population into hereditary caste groups who are ranked according to ritual purity and The Dalit castes form the lowest tier of the caste system and are highly marginalized to this day (Ed. note).
- 61 indigenous peoples were initially officially recognised in Nepal through the ordinance Rastriya Janajati Bikas Samiti (Gathan Adesh) 2054. Indigenous peoples have been officially and legally recognised by the government since 2002 (2059 B.S.) through the National Foundation for the Development of Indigenous Nationalities Act (known as the NFDIN Act), which lists 59 distinct indigenous communities in the country
- See The Rising Nepal, “The Modified Criminal And Civil Codes,” available at: http://bit.ly/2N5cjsQ
- See ConstitutionNet, “Nepal plans bulk amendments to 110 existing laws to meet constitutional deadlines,” available at: http://bit.ly/2N0VdN1
- See European External Action Service, “EU Election Observation Mission presents final report on the House of Representatives and Provincial Assembly elections, with recommendations for future elections,” available at: http://bit.ly/2N4cBQW The final report can be downloaded at: http://bit.ly/2N2hcTC
- Ibidem, pages 8 & 37, available at: http://bit.ly/2N2hcTC
- Ibidem, page 14, available at: http://bit.ly/2N2hcTC
- See Nepal Foreign Affairs, “Is European Union instigating ethnic conflict in Nepal?” Available at: http://bit.ly/2NaB7jz
- See The New Indian Express, “European Union’s report on polls ‘humiliates’ Nepal: PM KP Sharma Oil,” available at: http://bit.ly/2N0ViAj
- See The Kathmandu Post, “Recommendations offered in a spirit of partnership: EU – National,” available at: http://bit.ly/2Tcb5Ti
- See the statement made by the Country Rapporteur in the video footage from 1:25:2 to 1:35:08 from UN Web TV, available at: http://bit.ly/2N4yLTh
- Information provided by the
- See Naya Patrika Archive for “New coverage by vernacular,” available at: http:// ly/2TaDYiJ accessed on 12 August 2018.
- See The Kathmandu Post, “Khambuwan gives up arms, enters into peaceful politics – National,” available at: http://bit.ly/2GpvJrV
- See the CERD CO, available at: http://bit.ly/2Dyb5Ch
- The consortium comprised of the NIWF, the National Indigenous Women Forum (NIWF), the National Indigenous Disabled Women’s Association of Nepal (NIDWAN) and the Indigenous Women’s Lawyer’s Group (INWOLAG).
- See the shadow report on the Situation of the Rights of Indigenous Women in Nepal, available at: http://bit.ly/2N5KGjn
- See the SRPC shadow report, available at: http://bit.ly/2N2xgos
- See the CEDAW Recommendations, available at: http://bit.ly/2N4lzh3
- See para 40(a) of the CEDAW Recommendations, available at: http://bit.ly/2N4lzh3
- This research was carried out by a team of researchers led by Krishna Bhattachan. To download the book, see: http://bit.ly/2N2xSKM
- Economic Empowerment of Indigenous Women in Nepal. Page 104. Available at: http://bit.ly/2N2xSKM
- See Kathmandu Post, available at: http://bit.ly/2N2q4IP
Krishna B. Bhattachan belongs to the Thakali indigenous peoples. He is one of the founding faculty members and former Head of and recently retired from the Department of Sociology and Anthropology at Tribhuvn University in Nepal. He has published several books and articles on indigenous issues.