<figure><img width="3600" height="2400" src="https://superdesk-pro-c.s3.amazonaws.com/sd-nepalitimes/20221114131144/637238b99c7e80680e0c73a0jpeg.jpg" alt=""/><figcaption>Prime Minister Sher Bahadur Deuba and President Bidya Devi Bhandari join Constitution Day celebrations at Tundikhel on Monday. Photos: RATNA SHRESTHA/RSS</figcaption></figure>Monday 19 September marks the seventh anniversary of the promulgation of the Constitution, and it comes just two days after the first Parliament elected under that federal system was dissolved to pave the way for elections in November.This is a good time to take stock of those five years of Parliament and seven years of the Constitution. Spoiler alert: the report cards on both are not good.The 2015 Constitution was finally finalised after two elections to Constituent Assemblies, and was itself an outcome of the armed struggle waged by the Maoist party from 1996-2006. The very fact that 17,000 Nepalis were killed for the monarchy to be abolished should have made the new secular, federal, democratic republic worth dying for. Alas, the past seven years have proven otherwise.Read also: <a href="https://www.nepalitimes.com/editorial/affirmative-inaction/">Affirmative inaction</a>, EditorialThe Constitution was fast-tracked after the 2015 earthquake because the Nepali Congress-led coalition government was AWOL. To make up, it hurriedly passed the Constitution despite demands for greater autonomy from Madhesi and other groups. There was violence in the Tarai, and then New Delhi expressed its displeasure by punishing quake-ravaged Nepal by enforcing a border blockade for six months.A Constitution is a rulebook for governance, and is by definition work in progress. It needs to be tweaked to respond to changing aspirations and mores of the citizenry. But the past seven years have shown that the ones who made the rules think they were made to be bent and broken. Following the rule in Nepal is an exception, rather than the rule. It is the rule of the lawless.The first elections under the new Constitution were held in 2017 for all three tiers of government. There were some progressive provisions that mandated greater participation of women, the excluded and indigenous groups. Citizens had a chance to elect mayors, chairs and councilors to local governments with inclusive representation. Read also: <a href="https://www.nepalitimes.com/here-now/all-politics-is-local/">All politics is local</a>, Sahina Shrestha <img width="1000" height="583" src="https://superdesk-pro-c.s3.amazonaws.com/sd-nepalitimes/20221114131144/637238be9c7e80680e0c73a1jpeg.jpg" alt="">The electoral alliance of the UML and the Maoists swept that election, and the two parties united in 2018 to form the Nepal Communist Party (NCP). There was hope at last that with its strong majority in Parliament and an egalitarian agenda (at least in theory) the Communists would work for the welfare of the people.It took barely a year for those hopes to be dashed. The NCP’s two leaders, K P Oli of the UML and Pushpa Kamal Dahal of the Maoists, had a secret arrangement to take turns at prime ministership, but after Oli survived a second kidney transplant, it seems the deal fell through. The power struggle between these two alpha males ultimately brought down the government, and led to the NCP splitting into the UML and Maoist Centre again.Oli tried twice to dissolve Parliament in violation of Constitutional provisions, and was struck down both times by the Supreme Court under Chief Justice Cholendra SJB Rana. It is a supreme irony that even as the country marks Constitution Day, the country’s Chief Justice is under semi-house arrest for what appears to be political vendetta. Rana was prevented from going to his office this week after the dissolution of the Parliament that was debating an impeachment motion against him. Rana was not known for unblemished integrity, but had disallowed unlawful dissolution of Parliament. In the end, his staunchest defender has turned out to be the very K P Oli whose government was ousted by Rana’s Supreme Court verdict last year.Read also: <a href="https://www.nepalitimes.com/editorial/reward-performance/">Reward performance</a>, EditorialNone of this is surprising. The practice of distributing appointments among short-term allies (bhag-banda) has been the curse of Nepali politics for decades. In 2017, Oli and Dahal divided up between themselves appointments of the office of President, House Speaker, Chief Justice, other constitutional bodies, chief ministers, and even ambassadorships. The division of the spoils got even more extreme since the present coalition came to power since all five members had to be appeased. Neither Parliament nor the Constitution could meet the people’s expectations for better governance, equity and justice because both were held hostage by inter- and intra-party feuds. Their power struggles have been played out in Parliament, where protagonists have blatantly violated the Constitution to gain the upper hand. Ordinances were weaponised as ordnances. Nepal’s federal Constitution was supposed to devolve power to local bodies, they have instead let lack of accountability trickle down to the grassroots. It was meant to decentralise decision-making, but decentralised corruption instead.The November elections offer hope to change all this. It is now up to the people to oust the six elderly gentlemen men who have monopolised, misruled and abused power for decades and bring in a new crop of representatives who understand what the Constitution stands for.Read also: <a href="https://www.nepalitimes.com/latest/political-expediency-trumps-nepal-constitution/">Political expediency trumps Nepal Constitution</a>, Santa Gaha Magar

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Rule of the lawless

<figure><img src="https://superdesk-pro-c.s3.amazonaws.com/sd-nepalitimes/2022110811110/636a298d9c7e80680e0458d4jpeg.jpg" alt="" width="960" height="720"/><figcaption>Journalists and activists including Namrata Sharma met in Jakarta recently to discuss gender discrimination.</figcaption></figure>“My alcoholic father used to beat me and my mother, and I always protected my mother. After treatment my father is sober now, but my mother has started scolding me and makes me do all the household chores, giving me very little time to study,” says Sarita from a remote village in  Banke district of western Nepal. But Sarita may as well be in Indonesia, Europe or North America.Gender discrimination is pervasive and widespread, and the problem is the same all over the world, as we heard from activists and investigative journalists from 15 countries at a recent interaction in Jakarta.Read also:<a href="https://www.nepalitimes.com/editorial/3-4th-of-the-sky/" target="_blank" rel="noopener">3/4th of the sky</a>, Editorial<a style="background-color: #ffffff; font-size: 15px; letter-spacing: 0.01em;" href="https://www.nepalitimes.com/opinion/nepals-better-halves/" target="_blank" rel="noopener">Nepal’s better halves</a>, Anil ChitrakarAfter the end of the Suharto regime, an Indonesian participant said, the economy improved, but gender-based discrimination and violence were still prevalent in both urban and rural areas. Women still bore the brunt of patriarchal taboos, making it difficult for them to reach the top of their professions, earn better salaries, and upgrade living standards. Most agreed that there had been progress in amending existing laws and formulating new ones to end discrimination, but the violence itself had not abated.Cases of rape and incest are reported every day from all over the world, in both developed and developing countries. In Nepal, <a href="https://cijnepal.org.np/unsafe-homes-victimized-by-own/">20 cases were reported by Center for Investigative Journalism</a> (CIJ) Nepal during a 16-day campaign against Violence Against Women in 2018, majority of them involved rape of minor girls by relatives or neighbours.International Women’s Day draws attention worldwide to a global problem, in rich and poor, East and West. The women’s movement has achieved great progress when it comes to amending and promulgating laws and in creating mechanisms to hold countries accountable for injustice. In the last few years new movements have allowed women to speak out more boldly against sexual harassment in the workplace through the #Metoo movement.“For me International Women's Day (IWD) 2019 is a precious moment and a safe space where women are inspired to talk about their stories through protests and artwork,” says Meggy Katigbak of Asian People’s Movement on Debt and Development. However, she acknowledges that there is discrimination even among women by race, class, colour, and other factors.“Liberal feminists who focus on identity politics do not fully understand or appreciate that it the intersects with the struggles of other women,” she adds.But ironically, despite the popularity of International Women's Day, the situation of most women is still the same as on the day women garment workers first gathered to protest in 1908 in New York. Many countries now have rules that allow women to assert their rights, but many like Sarita in Nepal do not have the means to raise their voice against discrimination they face on a daily basis.The 2019 campaign theme for International Women's Day is #BetterforBalance, with the message of improving gender balance for a better world. Though there are more women in different professions today, at least 33% is needed to make it a critical mass, and women have not reached that number in most professions and decision making positions.Nepal marks International Women's Day with a government holiday, but that is barely enough to address many gender issues prevalent here. According to the 2016 World Economic Forum report, Nepal ranks 110th out of 144 countries in gender parity, and UN Women ranks Nepal 110th out of 145 countries in the Global Gender Gap Index. According to the 2016 <a href="https://www.dhsprogram.com/pubs/pdf/FR336/FR336.pdf">Demographic and Health Survey report of Government of Nepal</a>, the number of employed women in 2016 is only 68% as compared to 83% in 2006, and 68% of these women are three times more likely than men to not to be paid for their labour. And Nepal ranks third highest in child marriage in Asia.In order for victims like Sarita to be able to communicate better and access education, safe shelter and better livelihood, a social revolution is required where the rights of all people are recognised and accepted by society. Having an institutional set-up with proactive laws help, but equally important is empowering women. It is important to recognise that inequality leads to more difficult lives for all. We need to move towards better gender balance for the wellbeing for all.Namrata Sharma is the Chair of the Centre for Investigative Journalism.

#BalanceforBetter

<figure><img src="https://superdesk-pro-c.s3.amazonaws.com/sd-nepalitimes/20221108101144/636a25be9c7e80680e0439dbjpeg.jpg" alt="" width="1800" height="1050"/><figcaption>Activists protest government's reluctance to solve the rape and murder of Nirmala Panta, a teenager whose body was found near her home in Kanchanpur in July 2018. Photo: RSS</figcaption></figure><ul><li>Statute of Limitations: A 10-year-old girl is repeatedly raped by her caretaker. Her mother finds out much later. Since the statute of limitations to report rape was 35 days at the time, the complaint could not be filed. A Public Interest Litigation to extend the time is still pending in court six years later. The actual rape case has not even been registered.</li> <li>No Counselling: A pre-teen tells her mother a man “did something bad” to her. The police report has no details, only ‘something bad’, but the court scribe assumes it is ‘vaginal intercourse’. Medical report states that her hymen is intact. Doubts are raised, which helps the defendant in the court.</li> <li>Manipulation: A 17-year-old claims that she was manipulated and threatened into having sexual intercourse with the promise of marriage. She is asked how she can call it rape, since there is no physical injury or signs of resistance.</li> <li>‘Honour’: Defence counsel argues that the stigma of rape will brand a seven-year-old child for life. The view that her reputation is more important than justice takes precedence. The perpetrator is acquitted, to ‘help’ the victim.</li> <li>Stigma: The mother of a young girl finds out her husband has been raping their daughter. She fails to report the rape, but files a complaint about domestic violence demanding divorce and her share of property. 4</li></ul><figure><img src="https://superdesk-pro-c.s3.amazonaws.com/sd-nepalitimes/20221108101144/636a25c19c7e80680e0439dcjpeg.jpg" alt="" width="2048" height="1365"><figcaption> </figcaption></figure>Rape survivors and victims of sexual abuse in Nepal are increasingly going public with their experience, but even if they file a complaint, it is doubtful if they will ever get justice given the loopholes in the law.Nepal’s law does not match up to international standards: victims have only one year to report rape, the complaint procedure is stacked against them, and often there are no counsellors even for children. Most rape cases therefore go unreported, and the 1,600 complaints filed with police last year were just a small fraction of the actual cases.In fact, the United Nations Committee on the Elimination of Discrimination Against Women (CEDAW) has asked Nepal to abolish the statute of limitations saying it denies victims the right to effective remedy, and is especially unfair to victims of war crimes.Since most perpetrators are family members or known persons, there is pressure on the victim not to register the case at all. The law mandates the presence of counselors for victims, but it is rarely implemented. Many victims, especially children, are therefore not able to open up in the presence of intimidating officials.Read also: <a href="https://www.nepalitimes.com/banner/four-fold-increase-in-reported-rape-in-10-years/" target="_blank" rel="noopener">Four-fold increase in reported rape in ten years</a>, Sewa Bhattarai<a style="background-color: #ffffff; font-size: 15px; letter-spacing: 0.01em;" href="https://www.nepalitimes.com/opinion/the-roots-of-rape/" target="_blank" rel="noopener">The roots of rape</a>, Kedar Sharma<iframe src="https://cdn.knightlab.com/libs/timeline3/latest/embed/index.html?source=1Z-EcBdGQSvO4KbOuhA99cmkXbDr9N60P5Bk-A0W8LM8&amp;font=Default&amp;lang=en&amp;initial_zoom=2&amp;height=650" width="100%" height="650" frameborder="0" allowfullscreen="allowfullscreen"></iframe>Most victims choose not to pursue cases because they do not know how to work the court system and do not have the resources to fight it out. Figures show that only 60% of rape cases are closed, and only about a quarter of the victims get a favourable verdict.Even though a 2015 amendment broadened the definition of rape to include non-penile penetration, it is still rare for a court to convict such offenders. A Kathmandu School of Law report states that Nepal’s judiciary is ‘obsessively concerned with looking into elements such as penetration, use of force and completion of sexual intercourse by ejaculation’ as primary grounds for conviction. In absence of such evidence, the courts tend to shift the charge of ‘rape’ to ‘attempted rape’.Advocate Sushma Gautam says the situation is more favourable today as the Supreme Court has made landmark decisions based on the new laws, but she says not everyone is updated about the new laws.  “Even some judges and lawyers are ignorant of what constitutes rape and operate on their traditional mindset which considers only penile penetration to be rape,” she explains.Read also: <a href="https://www.nepalitimes.com/opinion/theytoo/" target="_blank" rel="noopener">#Theytoo</a>, Sewa Bhattarai<a style="background-color: #ffffff; font-size: 15px; letter-spacing: 0.01em;" href="https://www.nepalitimes.com/editorial/republic-of-rape/" target="_blank" rel="noopener">Republic of rape</a>, EditorialActivists worry that the system favours the perpetrator rather than the victim. The severity of the punishment is based on the age of the victim, with 16 years of imprisonment if the victim is aged below 10, and only 5-7 years if she is above 20, and there is also extra punishment if the victim is more than six months pregnant, or is disabled.“These provisions are unfair because they assume that an adult female in good health cannot be raped, which is not the case,” says Binita Pandey, a lawyer at Women’s Rehabilitation Center, (WOREC) Nepal. In the case of adult women, investigation often veers towards what the woman was wearing, why she was out at a particular time, and attempts to blame the victim for provocative behaviour.It is even more difficult for male victims: the law regarding paedophilia address male children, but rape laws specifically mention only ‘women’ as rape victims, leaving out men and transgender persons. Nepal’s laws are still based on patriarchal notions that a woman’s sexuality is the property of her male partner and not herself.Even as international standards like CEDAW mention ‘women’s sexual autonomy and consent’ in laws regarding rape, Nepal’s laws are still concerned about chastity, depriving many male and female victims of justice.“The problems with our Criminal Justice System is that the government is not really focused on implementing it,” says advocate Indu Tuladhar. “Our laws have improved, but there are still many loopholes. Often, the government does not actually implement high sounding provisions, which means that we must question its intention. Does it really want to deliver justice, or is it just creating laws that look good?”Read also: <a style="background-color: #ffffff; font-size: 15px; letter-spacing: 0.01em;" href="https://www.nepalitimes.com/opinion/justice-delayed-and-denied/" target="_blank" rel="noopener"> Justice delayed and denied</a>, Sewa Bhattarai<a style="background-color: #ffffff; font-size: 15px; letter-spacing: 0.01em;" href="https://www.nepalitimes.com/here-now/crime-and-politics/" target="_blank" rel="noopener">Crime and Politics</a>, Namrata Sharma

Rape rulings in Nepal follow letter, not spirit of the law

<img src="https://superdesk-pro-c.s3.amazonaws.com/sd-nepalitimes/2022110714118/636903bf9c7e80680e037cdfjpeg.jpg" alt="" width="640" height="541"/>Seven years after the Supreme Court issued <a href="http://archive.nepalitimes.com/news.php?id=18966#.W3Ve4c4zbIU" target="_blank" rel="noopener">a landmark verdict</a> in the Sabina Damai vs Government of Nepal case, allowing children to obtain citizenship in the name of the mother alone, the 2015 Constitution and a draft bill in Parliament have set the clock back.Activists say the 2015 Constitution which was drafted, debated and promulgated mainly by men, <a href="http://archive.nepalitimes.com/article/nation/The-right%20-to-have-rights,2656" target="_blank" rel="noopener">denies equal citizenship rights to women</a>, and the draft bill further entrenches Nepal’s patriarchal culture. The three main objectionable provisions are:a) A foreign woman married to a Nepali man can get naturalised citizenship right away, and is given six months to furnish proof that she has renounced her original citizenship. But if a foreign man marries a Nepali woman, he will not get Nepali citizenship. He can apply for naturalised citizenship after residing in Nepal continuously for 15 years. But his marriage to a Nepali woman will not count, and he has to apply for naturalised citizenship just like any other foreigner.b) Children of a Nepali man married to a foreign woman are entitled to citizenship by descent. But the children of a Nepali woman married to a foreign man will get naturalised citizenship, and that too only after producing proof they aren’t already citizens of their father’s country. They can get citizenship by descent only if the father has naturalised Nepali citizenship.c) Children above 18 can easily get citizenship if their fathers are Nepali, but it is much more difficult if they only have their mother’s citizenship. If the father is unknown, is estranged, or refuses to accept them, their mother will have to ‘declare’ to authorities that she does not know who the father of the child is.“The constitution and the citizenship bill perpetuate the male notion that their semen is superior, and women are not equal to men,” says former Supreme Court Justice Balram KC.KC was one of two justices who ordered the Dolakha district administration in 2011 to grant citizenship to Sabina Damai through her mother’s name. Sabina’s father was not known, and Dolakha’s Chief District Officer had refused to grant her citizenship unless her f<a href="http://archive.nepalitimes.com/news.php?id=18967#.W3Vhbc4zbIU" target="_blank" rel="noopener">ather’s identity</a> was established.Read also: <a href="https://www.nepalitimes.com/here-now/all-political-parties-are-technically-illegal/" target="_blank" rel="noopener">All parties are technically illegal</a>, Om Astha RaiThe Supreme Court not only directed the Dolakha administration to grant Sabina citizenship without asking about her father, it also ruled that women would henceforth be able to pass on citizenship to their children even without their husbands.“That verdict was not just for Sabina Damai, but for every person whose father is unknown and who wants citizenship through his or her mother’s name,” KC says.Barring a few exceptions, male-dominated district administration offices have defied the precedent set by Damai vs GoN and continue to deny citizenship to offspring of single mothers.In 2013, Shanti Nagarkoti filed a petition at Supreme Court after she was denied citizenship by the Kathmandu district administration unless she provided her father’s name. Two years later, the Supreme Court ordered the Kathmandu administration to grant her citizenship despite her father being unknown.Thanks to the judiciary, a handful of other mothers have been successful in getting citizenship for their children in their name only, but it is not yet the norm. Only the most determined mothers and those willing to fight a long legal case have managed to get Nepali citizenship for their children.When the Constituent Assembly passed the new Constitution in September 2015, fewer than 30% of the 601 member House were female, and none of them were in decisive positions. Their voices were easily suppressed by a cartel of male leaders from the hill upper caste community.As a result, the Constitution, which is progressive in many ways, embarrasses even its staunchest supporters. Former top United Nations official <a href="https://www.nepalitimes.com/featured-videos/kul-chandra-gautams-long-journey-home/" target="_blank" rel="noopener">Kul Gautam </a>has always defended the statute, but he too believes it discriminates against women. At <a href="https://www.nepalitimes.com/here-now/nepals-constitution-3-years-later/" target="_blank" rel="noopener">a conference on Nepal’s constitution</a> in Kathmandu this week, he admitted that gender discrimination in citizenship is the only fundamental flaw in the charter.But Parliament is unlikely to amend the Constitution and the draft Citizenship Bill to grant equal rights to women. When women MPs demanded equal citizenship rights in the Parliament this week, Home Minister Ram Bahadur Thapa fell back on the nationalist argument that citizenship was a matter of national security.Nepal’s main parties have always held the view that granting equal citizenship to women will encourage more foreign men, especially Indians, to marry Nepali women. They have spread the fear that Nepal will become “another Fiji”, where Melanesians were outnumbered by descendants of migrants from India due to a liberal citizenship law.Krishna Bhakta Pokharel, a ruling party MP who was a member of the Constitution drafting committee, says: “Our constitution is shaped by the idea that women go to live in their husband's homes after marriage, and not vice versa. This is the reality, and we cannot ignore it while drafting the citizenship law.”NCP MP Binda Pande says the citizenship provisions in the Constitution not just violate international treaties to which Nepal is signatory, but also contradict the statute's guiding principles and election manifestos of all political parties.The Constitution stipulates that a person whose father ‘or’ (not ‘and’) mother is a Nepali citizen at birth is entitled to citizenship, but this provision is rendered ineffective by other clauses that bar citizenship for offspring of Nepali women married to foreign men.“All Nepali citizens should be able to pass on citizenship to their children irrespective of their gender,” she says. “It should be as simple as this. Why do we pretend to grant equal citizenship rights through one clause, only to take it back by enacting many other clauses?”Women have slammed discriminatory citizenship provisions by writing articles and speaking out in public. Some have added Dosro Darjaki (Second Class) before their names on their Twitter handles.Says Election Commissioner Ila Sharma: “This is my way of non-violently protesting against a patriarchal state that wants to treat us as unequal citizens.”

Nepal’s suffragette moment

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