Situation of Human rights and participation of Indigenous women in constitution building, an experience sharing from Nepal

INDIGENOUS WOMEN AND CONSTITUTION ASSEMBLY BUILDING Rajani MaharjanCoordinatorNational Coalition Against Racial Discrimination (NCARD-NEPAL)Kathmandu, NepalNov 15, 2014

Situation of Indigenous womens rights and participation in constitution building, an experience sharing from NepalBackgroundNepal is a land locked country situated in between China in North and India in South.It has varying physiographic regions- Mountains, Hills and Terai (plain area) Nepal is a multi -ethnic, multi- cultural, multi- lingual and multi religious country. These are characterised by 59 indigenous communities legalized by the government, notwithstanding there are 22 communities yet to be recognized ( extensive research done by a high level task force)

Social diversityAccording to 2011 census, Indigenous peoples comprise 35.8 % of total population of 46.49 million. (However, IPOs claim that IPs comprise 50% of total population) Bahuns 12.2%, Chhetris 16.6% Dalits 13% Muslims 4.4% Others 18%

Particular Location (homeland) of Indigenous PeoplesMountain Areas : 5 Indigenous Communities Hill Area: 19 Communities Inner Terai:7 Communities Terai area: 1118 other communities particular location has not been identified.

These Communities have distinct features characterised by LanguageScriptDress Culture & Festivities Traditional Law Particular LocationDifferent data shows different numbers of languages in Nepal. Some reveals 94, some has 104

The Naitonal Foundation of Development of Indigenous Peoples (NFDIN), defines Indigenous Peoples as nationalities on the following base:

Group of people having A distinct collective identity,Own language, religion, tradition, culture and civilization,Own traditional egalitarian social structure,Traditional homeland or geographical area,Written or oral history,Having We feeling,Has had no decisive role in the politics and government of modern Nepal,Who are the indigenous or native peoples of Nepal, andWho declares itself as Janajati.

LegislationOnly 59 indigenous nationalities have so far been legally recognized under the National Foundation for Development of Indigenous Nationalities, NFDIN, Act of 2002.

The 2007 Interim Constitution of Nepal promotes cultural diversity and talks about enhancing the skills, knowledge and rights of indigenous peoples.Status of International ConventionIn 2007, the Government of Nepal also ratified ILO Convention 169 on Indigenous and Tribal Peoples and voted in favour of theUN Declaration on the Rights of Indigenous Peoples(UNDRIP).ILO 169 provides that the provision shall be applied without discrimination to male and female members of these peoples. The United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP) affirms that All the rights and freedoms recognized herein are equally guaranteed to male and female indigenous individuals the right to unrestricted self-determination and inalienable and collective land and resource right.

Other international human rights instruments of importance to indigenous peoples International Covenant on Civil and Political Rights (ICCPR)International Covenant on Economic, social and Cultural Rights (ICESCR)International convention on the Elimination of all Forms of Racial Discrimination (ICERD)Convention on the rights of the child (CRC)Convention on the Elimination of All forms of Discrimination against Women (CEDAW)Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment

CEDAW CONVENTION : RATIFIED IN 22 APRIL 1991 AND HAS CLEARLY MEANT DISCRIMINATION any distinction, exclusion or restriction made on the basis of sex which has the effect or purpose of impairing or nullifying the recognition, enjoyment or exercise by women, irrespective of their marital status, on a basis of equality of men and womenIndigenous Women (IW)Indigenous women comprise 37.5 % (4,345,314) in total women population of 50.4 % (11,587,502 )There is no disaggregated data for indigenous women that would reveal their true situation. Owing to relative differences in literacy rates, land ownership status, occupation, language, population size, and educational status, the systematic practice of social exclusion of indigenous women is experienced at very different levels to those experienced by non- indigenous women. Different studies show that 96% indigenous women have lower level of education. The literacy rate among indigenous women is 25% in average. 10% women get access to health services and 90% rely on traditional medicine.Multi layered discriminationAs recognised by the United Nations Secretary-General in his review of human rights on the occasion of the World Conference against Racism, Xenophobia and Intolerance, indigenous women face multiple forms of discrimination because of the nexus between gender, race, colour or ethnicity and other areas of subordination.

As being born as women: gender discrimination and face threats from in-migration, security and hazardous physical risks

As being as indigenous: Systematic and historical exclusion

Being illiterate and poor economic background: lack of access to education, resources and land

Challenges faced by Particularly IWBonded LabourKamaiya and Kamalari system-Specially tharu indigenous women of south west of Nepal victims of forced or bonded labour to provide servitude to specific individual and families since 1950 when the Monarch power started to be centralized who reached the Tharu land and dispossessed and deported them from their own land.

Trafficking of women and girlsNepal State Reports recognize that Indigenous girls and women are rampantly trafficked. They make up almost 80% of total trafficked women and girls.

Other forms of challenges being faced by IWsLack of access to education, Health care Ancestral lands, They are facing disproportionately high rates of poverty and are subjected to violence, such as Domestic violence Gender Based Violence And Sexual abuseIndigenous women are deprived of the proper arrangement of communication and employment in spite of the fact that there is a provision laid out in the Article 17 of the Interim Constitution of Nepal 2007 as well as the ADeveloping gaps in rights and access to lands Traditionally, indigenous women were generally respected by indigenous men and had equal access to and control over collective land and natural resources. However, with the gradual loss of collective ownership of lands and other natural resources and the introduction by dominant outsiders of institutions of private property, indigenous women progressively lost their traditional rights to lands and natural resources. Political IssuesPolitical issue is one of the major concern and agenda of the indigenous nationalities in Nepal. As the state has adopted discriminatory policy since two and half a centuries, IPs, women and Dalits are deprived of political participation, which means marginalising them from decision-making process. They do not have access to and control over productive resources. World Bank's report on 'Gender, Caste and Ethnic Exclusion in Nepal' has stated; the "Political poverty is manifested in the main political parties' failure to increase participation of women, Dalits and Janajatis in governance institutions"(Wold Bank, 2006).

Womens engagement in politics History of Womens engagement in Politics stems from 1958 that comes to be counted by the seats of elected women since the election held in 1991, 1994 and 1999 securing seats of 2.15% , 3.45% and 585%The development of womens engagement in politics drastically changes since In 1996, when Maoists proclaimed peoples warIn 2006 a historical peoples movementIn 2007- Amendment of Interim ConstitutionIn 2008- the First Constituent Assembly Election- through both FPTP and PR system 197 out of 601, 72 were IWIn 2013- 2nd CA Election thorugh both FTPT and PR- 162 out of 601and 52 are IW

Womens participation in the parliament which was reinstated in 2007 AD Name of the PartyTotal NumbersWomen Women in PercentageNepali congress133107.5CPN (UML)] 83 12 14.5

831214.5CPN (Maoist833136.1Others31413.1Total3305717.3Source: Statistics segregated on the basis of gender, National Womens Commission, 2008, page 31The CA election Result ( 1st & 2nd CA- A comparison The first Constituent Assembly election was held in 2008, the status of women in general elected and got seat through PR System: Total number of women represented 197 Only 29 women were elected through FPTP, whereas 161 women made their way to the CA through the PR system.6 were nominated Overall 21 party took part in the election. The highest number of women representation secured in UCPN- Maoist- 78 seats ranging from 52, 23 and 3- FPPT, PR and nomination that makes up 39.8 % of total seats in the CA followed by 39 (20% and 38 (19.5%) overall seats secured by women in Nepali Congress and CPN UML respectively.2nd CA Election and ResultTotal women Represented 16211 women elected through FTPT151 from PR 2 Nominated Marginalized women elected through PR systemParty nameMadhesiJanajatiDalit MuslimUCPN-M aolists72161NC41151UML61341Madhesi jan adhikar forum-Nepal4001Terai madhesi loktantri party2010RPP0210Others3710Total2654184The question of representation and Participation of IW in constitution building process in NepalDo Indigenous women represent their community?

Though indigenous women constitute half of overall indigenous population, only 0.76% indigenous women represented in the major political parties. Hence, indigenous women are severely under-represented in decision-making structures. This is true not only at the national level, but also at the local levels which is not yet addressed as required by the concluding observation of Committee on Economic, Social and Cultural Rights (38th session, 30 April 18 May 2007) Provisions in relation to participate in Decision MakingUNDRIP affirms Indigenous peoples have the right to participate in decision-making in matters which would affect their rights, through representatives chosen by themselves in accordance with their own procedures, as well as to maintain and develop their own indigenous decision-making institutions.The Interim Constitution of Nepal, 2007 guarantees To make an inclusive, democratic and progressive restructuring of the State, by ending the existing centralized and unitary structure of the State so as to address the problems including those of women, Dalit, indigenous people, Madhesi, oppressed, excluded and minority communities and backward regions, Interim Constitution, Section 33 Obligations of the State, (d), January 2007. CEDAW Recalls in its Preamble:Discrimination against women violates the principles of equality of rights and respect for human dignity, is an obstacle to the participation of women, on equal terms with men, in the political, social, economic and cultural life of their countries.Voices of IW not hearddespite representation of indigenous women in the Womens Caucus of the Constituent Assembly, concept papers developed by the Thematic Committees established by the Assembly have not incorporated indigenous womens concerns, issues and rights. The Womens Caucus has recommended that a constitutional provision be inserted that guarantees special provisions and protection for certain groups of people using clear criterion and indication by the law.What Indigenous women CA members say: Rukmini ChaudharyAlthough we were nominated as representatives from our respective indigenous communities, we were not allowed to raise our issues and concerns, says, Rukmini Chaudhary (Tharu), who was nominated under the proportional representation from Tharu community by Sanghiya Loktantrik Rastriya Manch (Tharuhat), Dang. We were mocked in the Assembly. I was myself subjected to mockery and fierce criticism not only by the male CA members but also women from dominant groups when I tried to raise the concerns of indigenous women in particular and indigenous nationalities at large.

Lucky Sherpa Says:Political parties seemed to incorporate women candidates only to meet the formal constitutional requirements regarding the number of women to be listed among the candidates.

Angdawa Sherpa I was proud of myself as I was nominated by the UCPN (Maoist), which had been championing the cause of the marginalized groups. But due to narrow understanding and biases of certain leaders within the party, the issues of indigenous women were shadowed.

Conclusion: Two major pointsDearth in number of Indigenous women in the CA or decision and policy making levelRestrictive rules against Self- Representation of Indigenous peoplesSelf Representation Vs Presence/ Attendance Reasons:All participants in the process are drawn from political parties and thus bound, by law, by the manifesto of the party to whom they owe their membership and impose whip and restrict the elected members.Parties lack in commitment in implementing Provisions of Interim Constitution 2007, ILO convention 169 and UNDRIPRecommendations Renewed efforts to promote the rights of indigenous women should be urgently put in place, including measures to improve their representation and to eliminate all forms of discrimination and violence against them, with the active involvement of indigenous women and their organizations. Report by the Special Rapporteur on the situation of indigenous peoples in Nepal, (2009), A/HRC/12/34/Add.3, page 22 et seq., Provide for the participation of indigenous peoples, through their freely chosen male and female representatives, in the Constitution drafting process, including recognizing their right to self-selected collective representation.Ensure that data collected in Nepal is disaggregated by categories of indigenous ethnicity or nationality, and referenced in relation to gender, taking into account the criterion of self-identification, in order to promote accurate understanding of indigenous peoples situations and the development of appropriate, gender-sensitive programming.

Recommendations..Promote effective participation in the political and public spheres in Nepal to ensure respect for the rights of indigenous women as indigenous women. This must entail full respect for the rights of indigenous peoples to self-determination, by providing that indigenous peoples may participate in national politics through their own traditional or freely chosen institutional structures....