Kathmandu celebrated an early Deepawali this year as inhabitants took to the streets on September 20th to welcome the new constitution. Celebrations were definitely in order - after all, this was a constitution that abolished the death penalty, secured the rights of the LGBTI community, conferred equal property rights on Nepal's sons and daughters, and most importantly, reinstated the country's secular democratic credentials, despite much pressure from certain sections of Indian society. Why then were Nepali women still unhappy? Why did thousands of them come out on the streets in the run up to September 20th? What were those die-ins and week-long fasts all about?
A sleep-in protest held in capital city Kathmandu. Photo: Badri Pun.
The biggest bone of contention is the issue of citizenship for Nepali women married to foreign men and the position for single women. With the new constitution, Nepal joins ranks with 27 countries that restrict a woman's right to pass on citizenship to her child independent of the father's nationality. Even Pakistan and Afghanistan offer their women this constitutional right. Months of hectic lobbying, sit-ins and fasts later, women were still rendered second-class citizens in the new charter.
Nepali women and transgender men protest the discriminatory clauses in the constitution. Photo: Badri Pun.
Nepali women married to foreign men
Article 11.7 of the constitution states that the child of a Nepali woman married to a foreigner can only avail citizenship by naturalization. Women's groups are up in arms against this discriminatory clause, particularly since naturalized citizens are not allowed access to higher posts in the administration and security forces. More importantly, naturalized citizenship is not a fundamental right but at the discretion of the state. A Chief District Officer with a patriarchal nationalist mindset, could very well quash the application, rendering the applicant stateless - all because his mother dared to carry the seed of a foreign male. At this point, it is important to mention that Nepal has nearly 4.8 million stateless persons. Without citizenship cards, they are unable to gain admission to a college, open a bank account, vote, buy property, or even apply for a passport, driving license or a SIM card connection.
Compare this to the case of the Nepali man married to a foreign woman. Not only are his children given citizenship by descent right at birth, but his wife can also apply for naturalized citizenship soon after marriage. In capital city Kathmandu, it is not uncommon to spot Nepali men married to foreign woman, often with a baby in tow. The opposite however is not quite as common. Krishna from Kathmandu is married to an Israeli woman, and is the father of a baby girl. His daughter is automatically given Nepali citizenship by descent however he states emphatically, 'Nobody should get a privilege based on their gender. This defeats the concept of equality enshrined in the constitution.'
Single woman and citizenship
Article 11.5 of the constitution states that a person born to a Nepali citizen mother, and having his/her domicile in Nepal but whose father is not traced, shall be conferred the Nepali citizenship by descent. It however goes on to state, ' Provided that in case his/her father is found to be a foreigner, the citizenship of such a person shall be converted to naturalized citizenship according to the Federal law.'
The sub text regarding 'domicile' deals a sharp blow to Nepali women trafficked into other countries, raped and rendered pregnant by pimps, clients and employers. Sabitri Sinha is one such example. She worked in the Gulf for 9 years. Raped by four men after escaping an abusive employer, she gave birth to her son Yuv in Kuwait only to realize that Yuv did not qualify for citizenship by descent as he was not born in Nepal.
Why take the matter as far as rape?
What happens to the thousands of unmarried Nepali women who work as au pairs, nannies, nurses, beauticians, or migrant workers on foreign soil. What happens if they fall pregnant and the father is untraceable refuses to acknowledge the child or is not a Nepali national. What if the woman does not see abortion as a solution but chooses to give the child a chance at life. Does the new constitution afford this child that chance at living? Or he does he join the ranks with the nation's 4.8 million stateless floating spectres? Deepti Gurung, a single mother in an article for Deutsche Welle writes, "We are like prisoners in our own country. Our condition is worse than the refugees. They are at least recognised as citizens of a country. We are stateless." For this reason, activists such as senior advocate Sapana Pradhan Malla strongly advocate easy birth registrations of children of single mothers to ensure the children are not stateless.
In 2007, Nepal ratified the UN’s Convention for the Elimination of All Forms of Discrimination Against Women, which prohibits sex discrimination in conferral of nationality. However the constitution does precisely the opposite in favouring Nepali fathers.
The Indian male conspiracy
'It's not about Nepali Women, It's About Indian Men'
Speaking casually to people in Kathmandu's cafes, shops or public transport, a surprisingly large number correlate the unfair citizenship laws to instances of Nepali women marrying Bihari men. Said one woman, 'Our Madhesi people who live in the southern Terai regions bordering the Indian state of Bihar belong to Nepal but are of Indian ethnicity. They don't look like us Nepalis and their loyalties are with India. These women often intermarry across the open Indo-Nepal borders. To protect Nepal's sovereignty, we must make sure that babies born to Indian men don't get Nepali citizenship by bloodline (descent). India's notoriety for female infanticide leads their men to hunt in Nepal for brides. I'm sorry but we don't want to import that kind of culture here and disseminate it. You do know that Nepal has 51% of women population right? We don't kill our baby girls. '
Badri Pun wearing a badge at a women's rally, 'My Identity. My Rights.'
Transgender activist Badri Pun who is the president of Inclusive Forum Nepal identifies as Janjathi, one of the traditionally marginalized groups in Nepal. He was present at a massive women's rally in Kathmandu a few weeks before the constitution was promulgated. Today however, he sings a different tune following the unofficial economic blockade imposed by India on Nepal where land borders have been sealed, as Nepal reels under intense fuel, gas and medicine shortages. The anti-India sentiment while gaining tractum is altering some people's takes on citizenship laws.
Pun fumed, 'Why is the Indian media reporting that Nepal’s new constitution under represents Madhesis. Who is Nepal’s President Ram Baran Yadav if not a Madhesi? This is not India. This is Nepal. If the Madhesi women want to marry Indian men, they should move to India and live there. Don't mess with our demographics. Anyway India is funding their cause and fuelling the unrest in Nepal. Take these Indian men out of the equation and I'm telling you our constitution-makers would have bestowed equal citizenship rights to women. Women are paying the price with their bodies for the geo-politics in the region. Think of the poor single mothers who've been deserted by the fathers/husbands. This constitutional oppression affects their children too setting off a vicious cycle. And for what?’
Another woman goes as far as to say, ‘Why not just amend the constitution to deny citizenship by descent only to children of Indian fathers. India has interfered with Nepal for too long, and is now punishing us viciously with this blockade because we didn't accommodate their demands in OUR constitution.' While emotions are understandably running high at this time, this sort of reasoning clashes sharply with the United Nations Committee on the Elimination of Racial Discrimination which states that the “deprivation of citizenship on the basis of race, colour, descent, or national or ethnic origin is a breach of States’ obligations to ensure non-discriminatory enjoyment of the right to nationality”.
Single woman who have had children outside marriage are likely to suffer doubly. Kabita Rana, chairperson of the women's group WOFOWON told me, 'To get around this discriminatory law, it's quite common for the single mother's male relatives, friends or acquaintances to declare themselves as the child's father. They do it not to cheat and lie to the government, but out of humanity because they know that without citizenship, the child will be stateless.'
While the constitution has been hailed largely as all-inclusive and progressive, it is evident that the rigidity is being applied only to Nepalese woman.
Women's political representation
Kabita, who has worked with battered woman for years, believes that the 33% representation for women in the new constitution makes little sense if the top posts are reserved for men. She says, 'In all cross-party dialogs, it's the men out there pulling the strings, making decisions about our lives and bodies. Women have no real power. We were out there on the streets for weeks fighting for our rights. They instead told us we were not worthy enough to pass on our citizenship to our children independently of Nepali men. You speak of 33 % reservation for women in politics? First encourage Nepali women to complete their education, to go out and get a job, be financially independent and to be aware of their rights. Help them balance their work and family life. Without this, 33% reservation is nothing but a decorative figure.'
Rita Thapa, one of Nepal's most prominent feminists for over three decades, discussed Nepal’s political history and the cause of women when I met her with Badri Pun. She opined, ‘You have to remember that Nepal is a young country. We were never colonized and we've always been isolated so identity politics has played out differently here. The implementation of the new constitution is what matters, not what is on paper. If the elected representatives in charge of implementing the provisions are intrinsically misogynistic, nothing really changes. That said, there is a certain consciousness sweeping across the nation. Hope remains.'
Can Nepal's new constitution be amended in favour of gender equality? For the moment, the immediate concern of the beleaguered landlocked nation is the fuel and medicine crisis, compounded by the aftermaths of the earthquake and a harsh winter that has already set in. A chilling silence from diplomatic missions in Nepal and international human rights associations regarding the unofficial blockade has left most Nepalis confused. Amidst all of this, one thing is for sure - the women’s groups will keep up the pressure and continue to work for the cause.
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