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 icon

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


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- 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.


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 constitution-making 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.


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."


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, non-recognition 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, 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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