16-22 October 2015 #780

The right to have rights

The new Constitution lays bare misogynistic and patriarchal psyches that usually hide behind nationalism
Sangita Thebe-Limbu

GOPEN RAI

Being stateless is a violation of human dignity and freedom, yet countries including Nepal have failed to address this issue as they continue to maintain gender discriminatory laws by denying their female citizens the right to pass their citizenship to their children on an equal basis as males.

With the newly promulgated Constitution, Nepal has officially legitimised this discrimination. While claiming to end all forms of inequalities including those based on gender as stated in the Preamble, Article 18.1 goes further and states all citizens are equal before law. However, is ‘equality for all’ a beacon of hope for the marginalised or mere rhetoric?

The Constitution drafters have used biological sex as a basis to differentiate between Nepali citizens and have further reinforced unequal gender relations, particularly in the context of citizenship laws. Article 11.2.b of the Constitution states that a person whose father or mother is Nepali at the time of the birth can become Nepali by descent. The use of ‘or’ appears promising at first yet the subsequent clause states both father and mother have to be Nepali at the time of birth for a person to acquire citizenship by descent (Article 11.3), which clearly overrides the previous clause and possibility for change.

Article 11.5 states a person domiciled in Nepal who was born to a Nepali mother and whose whereabouts of father, who must also be Nepali, is unknown has to be born in Nepal in order to acquire citizenship through descent. However, this condition on birthplace is only applied to children of Nepali women and not Nepali men.

This condition puts children of trafficked women, migrant women workers and other transient women whose offspring are born outside Nepal at a disadvantaged position. Furthermore, the onus is ultimately on single mother to prove the nationality of her child’s father as she is not allowed to confer citizenship independent of him.

Under Article 11.7, the child born to a Nepali woman married to a foreigner is only entitled to a naturalised citizenship. The issue with naturalisation is that it usually tends to be at the discretion of the state rather than a right in itself and with the new Constitution, naturalised citizens are barred from appointments to the upper echelons of political authority (Article 238). 

However, the Article further states that if the person is born in Nepal and both mother and father are Nepali citizens at the time of acquisition of citizenship, then the person may acquire citizenship by descent. This is based on an assumption that foreign spouse of Nepali woman may have acquired naturalised Nepali citizenship by then. The irony of course is that the Constitution states a foreign woman married to Nepali man may acquire naturalised citizenship (Article 11.6) but it does not specify anything when it comes to foreign spouses of Nepali women.

The citizenship provisions show there are two distinct citizens: Nepali men and Nepali women. Nepali men are Nepali citizens, who are the heads of households, primary breadwinners for their families and essentially the owners, heirs and protectors of Nepal. As for Nepali women, they are second class citizens who can give birth (to both national and foreign children) but cannot give them identity. They are harmless as long as they live within male-headed households in accordance to social norms, but should there be any ‘deviations’ they become ‘the others’ that pose threat to national unity, security and sovereignty.

The Constitution lays bare misogynistic and patriarchal psyches that usually hide behind nationalism – which is apparently the preserve of men. Such nationalism scapegoats women instead of addressing the dismal state of governance and political failures, it is worried sick about potential instability from outside yet overlooks the instability it itself creates and recreates through statelessness, which is not just ‘women’s issue’ but that of human rights. Hypocrisy is evident and so are exclusions yet, the question remains – beyond pain and deep resentment, could we still hope and take action for change?

The Constitution has taken a progressive stance on LGBT rights (Article 18 & 42), criminalised violence against women, acknowledged sexual and reproductive rights and equal rights in property and family affairs (Article 38), yet the prevailing discrimination in citizenship provisions is not only a contravention of Nepal’s International commitments (such as CEDAW) but also a missed opportunity, yet again, to recognise women as citizens in their own right.

Securing gender equality in the Constitution is of course not an end in itself, it is just the beginning but even that is proving difficult in Nepal.

  Sangita Thebe Limbu is studying Gender, Development and Globalisation at the London School of Economics and Political Science (LSE)

Read more:

#citizenshipthroughmothers, Tsering Dolker Gurung

Being Nepali or becoming Nepali?, Anjana Rajbhandary

Some citizens more equal than others, Damakant Jayshi

Who will be a Nepali

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