Nepal's Constituent Assembly Process Continues

To appreciate why the current constitution drafting process in Nepal is so complicated and time-consuming, it is essential to locate this process in the context of three decades (1960-1990) of single party royal rule followed by two decades (1990-2008) of troubled liberal economic, democratic experience.

The 1990 Constitution drafting process, the first to write a truly democratic constitution, was led by respected lawyers, judges and political leaders, all men, who had to balance the continuing historical and cultural authority of the Shah kings with the popular demand for a multi-party democratic structure.

But, by 2006-8, after the close of the worst years of the Maoist civil conflict and the collapse of a feudal royal regime that had lasted for over 200 years, the major political parties, the Congress, UML and Maoist, agreed to a peace process that included the drafting of a new people's constitution through the election, for the first time, of a truly inclusive Constituent Assembly (CA).

The creation of a Constituent Assembly to write a new constitution had been one of the 40 demands of the Communist Party of Nepal/Maoist (CPN/M) when they launched their People’s War in February 1996. This realization of this commitment was an important component of the 2006 Comprehensive Peace Accord (CPA) that brought the ten year old civil conflict to an end.

Although the actual details and implementation procedures to adhere to the many commitments in the 2006 CPA are still being negotiated five years later, particularly with regard to the peace process, the Maoist cantonments, the Truth and Reconciliation Commission and the Disappearances Commission, in comparison, the CA constitution drafting process -- although not yet complete -- has made much more substantial progress over the past three years than most other aspects of the CPA.

For example, the UNDP “Support to Participatory Constitution Building in Nepal’ (SPCBN) project, funded by DFID, Danida, the Norwegian Embassy and UNDP, has worked closely with the CA and the CA Secretariat to ensure the inclusion of historically marginalized communities in the drafting this secular, democratic, federal constitution for Nepal. The effort to achieve a national outreach was originally approved by the Government of Nepal (GoN) with the CA Secretariat appointed the  representative for the project just after the CA elections.

This UNDP managed civil society outreach initiative began in early 2009 targeting historically disadvantaged communities as specifically identified in the 2007 Interim Constitution, e.g. the Madhesi, Indigenous Peoples, Dalits, women and remote area communities. The distinct objective was to bring these traditionally marginalized communities, who were less represented in the government or the upper echelon of the major political parties, into closer contact with the political leadership of the country who would be implementing the consultative constitution drafting process.

At that time, 18 Nepali NGO federations were selected from over 150 applicants through a competitive proposal review process. These 18 NGO federations represented an exceptionally wide vareity of Nepali ethnic, caste, geographic, linguistic and remote regions, as well as included over 90 local-based Civil Society Organizations (CSOs) from across Nepal.  These CSOs were trained and tasked with reaching the most remote villages with civic education on the formal CA drafting process (using flip charts, trained local facilitators and training modules), as well as to collect and collate community level submissions for presentation to the CA Thematic Committees in Kathmandu.

A second phase of this civil society participation (CSO 2) was initiated in 2010 by 15 NGO Federatons through a similarly detailed selection process.  It was specifically designed to reach all 3,915 Village Development Committees (VDCs) and municipalities across the 75 districts of Nepal.  Due to their fine performance, over half of the NGO federations that participated in the first phase of civil society outreach were selected again in the second competitive selection process to continue their field work, while other NGO federations with more experience in other geographic regions and communities of the country were selected to ensure that all parts and communities of Nepal were covered.

Over a four month 2010 period, these NGOs and their over CSO 100 partners conducted ‘Democracy Dialogues’ (Loktantric Sambad) to inform people on the contents of the eleven CA Thematic Committee reports.  Using new training modules on the contents of the CA Committee reports and detailed summaries to update the people of the CA work, the 15 NGO federations and their CSO partners documented the contents of the public feedback and actual individual attendance from across Nepal.

After these field consultations, the village-level submissions were collated and presented at one public ‘Constituency Dialogue’ for each of the 240 electoral constituencies with selected local Constituent Assembly (CA) members in attendance. Then, after completion of the process, all 240 Constituency reports (including the VDCs reports from that constituency) were collected, bound and submitted to the Chair of the Constituent Assemblywith a written summary in Nepali (and English).

Over 400,000 people participated in this two year civil society outreach initiative from nearly every walk of life, including the rich divesity of caste, ethnic, religious and linguistic communities across the high mountains, middle hills and the low-laying terai of Nepal.

In addition, over 120,000 copies of a 60 page summary overview of the eleven Constituent Assembly Thematic Committee reports, including a 10 page Q&A, was prepared by the SPCBN legal team.  This booklet was translated and distributed in five national languages (Nepali, Maithali, Bhojpuri, Urdu and Bhote) to support the civil society outreach.

Nonetheless, the draft constitution has not yet been finalized by the CA, even after three extensions to May 2011, August 2011 and soon November 2011.  Although there is much agreement on many components and aspects of the future constitution, there are still contentious issues, especially with regard to the form of government, the electoral system and the structure of a federal republic.

In this regard, the political parties continue their negotiations, both on the peace process, which some parties state must be completed before the new draft constitution can be finalized, as well as these outstanding core issues for the new constitution.

Therefore, through our UNDP SPCBN project, this inclusive, consultative process continues in 2011.  Building on the 14 provincial level Federalism Dialogues that the project implemented in 2010 with the assistance of Professors Krishna Khanal and Krishna Hachhethu, a series of Inter-Provincial Dialogues were organized earlier this year that sought to address specific contentious issues related to federalism and state restructuring that affected adjacent proposed provinces.

Now the project is sponsoring a new series of Federalism Dialogues that concentrate on important administrative issues related to the division of state power in a new federal Nepal.   In selected regional sites around the country, these workshops seek to discuss and clarify the state powers that should be allocated to the federal government, which to the new provinces and which to the local governments -- the three primary tiers of government that have been proposed by the CA State Restructuring Commitee  for the new constitution.

In addition, a media monitoring initiative has just begun with the same 15 NGO federations that conducted the CSO 2 across the country in 2010.  These NGO federations are working with ACORAB, a respected national community radio organization, to conduct weekly 30 minute radio programs weekly until the end of the year reporting on the specific progress of the CA and political parties with regard to finalizing the draft constitution.  Half of the weekly program will be produced centrally  in Kathmandu by ACORAB while the other half will be produced by the local FM stations around the country on constitutional issues raised in the local community.  In addition, the NGOs will invite their CA members out to their constituency to participate in the local radio program a town hall meeting to discuss the issues holding back the completion of the constitution.

Hopefully these latest activities will assist in putting community pressure on their CA representatives to bring the constitution drafting phase to a completion by the end of the year, at the latest.

We hope...

Dalit Discussions on a Draft Nepal Constitution

The mist encloses this isolated hotel on the backside of Nagarkot.  It’s been raining steadily for four days within the Kathmandu Valley.   Yesterday I came to attend a three-day workshop on constitutional issues with Dalit leaders from the major political parties and associated NGOs.  The clouds keep our concentration on the issues at hand, instead of gazing out the picture windows at the snow-capped Himalaya to the north.

As Nepal moves closer (we hope...) to a draft constitution before the November 30^th deadline, there is a rush among interest groups to clarify the minimum common demands they wish to include in the final draft constitution.   Among these communities, the splits that have divided them by party or ideology or class are being diminished to ensure they are better able to influence their party leaders and those few who will most likely have a greater say on the final draft.

Among the Dalits, the previously ‘untouchable’ castes, these internal schisms have been as severe as among any other identity group in Nepal.  As the psychiatrists and social historians advise us, painful family problems and political divisions often internally rive groups that have been harshly discriminated against within their larger society.  Such troubles have been apparent among the Dalit communities, as well, as they seek unified strategies, programs and policies that would support their enhanced economic, social and political rights in a 21st C. Nepal free from past discrimination and degradation.

Now, after two years of on-going discussions among these Dalit leaders, this latest SPCBN/UNDP workshop brought the best and brightest of the Maoist, Congress and UML parties together with their colleagues from the constitutional National Dalit Commission and related NGOs. 

Over the past two+ days, they have eagerly and openly debated the major outstanding constitutional issues, with special emphasis on fundamental rights, forms of government, the election system and state restructuring.  The actual constitutional language on these issues, perforce, will have a major impact on their historically disadvantaged Dalit community.  Each proposed constitutional provision will either further encourage improved opportunities for their community or continue their isolatation from the mainstream of Nepali society, with future potential economic growth and political leadership limited for their children and grandchildren in the years to come.

Yet, in all such gatherings, it’s not possible to completely take the person out of their party, even when they all belong to the same historically suppressed Dalit community.  At times, some of these leaders go off on justifications of their own party’s perspective on these national issues.  But they quickly lose their audience as other Dalit leaders start to complain or openly ask how long they will keep talking off the actual topic. 

But, by and large, these conversations have been extremely mature, thoughtful and dispassionate.  Some of the women leaders have been as articulate and forthright as their male colleagues.  In particular, it’s obvious to see how the Maoist party has cultivated some of these younger women in positions where they have gained greater exposure on issues related to caste, class and political empowerment.

On fundamental rights, naturally, there have been detailed discussions on Dalit rights, especially how best to ensure that the new constitution is even more proscriptive in eliminating the remains of caste discrimination.  Although the Government of Nepal has ratified many international conventions (ICCPR, CERD, CEDAW et al) over the decades and new laws been introduced to further restrict the traditional discrimination against Dalits, the sad reality is that such racial discrimination still exists within Nepali society, as does racial discrimination in most countries.

On state restructuring, the workshop discussion revolved around how Dalits can gain greater political authority and rights under the new Federal Republic of Nepal.   However, unlike the Indigenous communities, who are advocating for their own plurality states, or at least states named after their cultural and geographic histories, the Dalit population is so widespread in Nepal that there is no area of the country that would logically support a contiguous or representative Dalit state. 

Therefore, some Dalits advocated a non-territorial federalism for the Dalit community where they would be joined within a political structure that would recognize their identity and unite them even as they remain dispersed across the country.  But this is a muted demand and most Dalit leaders acknowledge that federalism in and of itself will not systemically improve their situation in Nepal.

For that reason, much of the conversation revolved around the proposed election system.  They discussed how a new electoral structure will best support the enhancement of Dalit leaders and representation in future parliament-legislatures.  Currently, the debate revolves around how to balance a first past the post (FPP) system where the winner takes all with a proportional representation (PR) system whereby a pre-arranged number of seats are allocated to representatives of historically disadvantaged communities based on a national constituency, i.e. the total number of votes each party gains throughout the nation.   

Because the Constituent Assembly election in 2008 included more PR seats than FPP, this 601 member CA has 50 Dalit representatives – much more than any previous parliamentary election in Nepal; including, for the first time, Dalits who remarkably won their own constituency elections through the FPP system (all Maoist candidates).

The drafters of the new constitution will have to decide how to best to balance the seats allocated for the FPP and PR, i.e. what number and percentage of th seats will be FPP or PR.  Historically, until 2008, the FPP seats were won by the traditional elite communities -- never the Dalits.

Similarly, Dalits will have to observe carefully how the PR seats are categorized – e.g. how strictly will the rules be drafted so that specific minorities are ensured representation on the PR lists.  For example, under the women quota, will there be a Dalit or IP women's quota or will most of the women's quota go to the traditionally politically well-connected women?

Also, will the Dalits be given additional compensatory seats to adjust for their historical discrimination or will they be given an exact percentage of seats (relative to their population).  In 2008, they were allocated a proportion of seats less than their national population percentage.  How exact will be the effort to ensure proportional reprsentation, as committed in the 2007 Interim Constitution?

Some CA MPs, nonetheless, made a case that the Dalits should also be prepared to compete for FPP seats, as well, to show their imcreased capabilities and individually prove their abilities and worth in an open election compared to any other Nepalin. 

On the form of government, where the primary national discourse revolves around either a presidential system (favored by the Maoists) or a Westminster system with a prime minister selected by the largest party in the parliament (favored by the Congress party).  However a third option has been mooted that is a French-style mixed (semi-presidential) model where state powers are shared between the prime minister chosen by the parliament and a directly elected president. 

For the Dalits, there seemed to be less emphasis on this debate, as they don’t imagine that they will have the opportunity to hold either position in the near future.  One person did recommend that if there is an honorary presidential system (with a ruling prime minister), then the president should rotate among the various ethnic and caste communities in Nepal, thereby permitting a nationally respected Dalit to hold that ceremonial post in the future.

As the workshop ended, there were many voices of appreciation for the accomplishments over these few days, with the understanding that there is more work to be done in writing up the conclusions over the upcoming Desain holidays, meeting with constituents to discuss these issues and further discussions later in October to refine the agreements.  

At that time, they will need to formalize the actual language and then sit with their own party top leaders to gain their consent to include clauses in the new constitution that directly benefit the Dalit community.

If even part of this is achieved in a new constitution, then these three September days will have been well-spent and meaningful here on the misty side of Nagarkot.  

Jai Nepal!

Constitution Making in Nepal

Nepal is going through one of the most important phases in its modern history -- that of making a new constitution. For many Nepalis, public consultation and inclusion will be critical factors leading to the legitimacy of the Constituent Assembly process and the credibility of the final constitution.

'Voices from Below: Constitution Making in Nepal' is a six minute preview of a longer documentary (released in April 2011) that was made for the general public. The short film seeks to convey the spirit and seriousness of the constitution-making process in Nepal. The film showcases people's voices from across Nepal, including local community leaders, villagers and CA members. It especially incorporates their hopes and dreams for the new constitution and the future of Nepal.

An initiative of the UNDP Support to Participatory Constitution Building in Nepal (SPCBN) Project and the Centre for Constitutional Dialogue (CCD), the documentary stresses the importance of ensuring a truely participatory people's Constitution. The film documents the process of the SPCBN Democracy Dialogues that were held during 2010 in all 3,915 VDCs and 58 municipalities, as well as the Federalism Dialogues in the provinces proposed by the CA State Restructuring Committee.

The documentary, 'Voices from Below: Constitution-Making in Nepal' is written and directed by the renowned and award-winning Nepali film director Tsering Rhitar. In 2000, Tsering Rhitar made "Mukundo" (Mask of Desire) which was Nepal's Official Entry for the Academy Awards Best Foreign Language Film Section.

http://www.youtube.com/watch?v=jiQdhKdrGQw

Democracy Dialogue in Dadeldhura District

I'm sitting on a hillside in remote Dadeldhura district, in the Far Western hills of Nepal. It's taken me a few decades to get here, but it's worth the wait...

My Save the Children work never brought me here, even though it's only a four hour drive from Dangadhi in the terai (the Nepali plains), where we worked for many years with the rural, agrarian Tharu communities. From the East-West highway, the road to Dadeldhura starts almost immediately up an astoundingly steep mountain with cliffs dropping off a few thousand feet below while we climbed up in our UN van on a relatively smooth road. After reaching the forested summit, the road glided into a series of remarkably beautiful valleys sweeping to west toward India, not that far away.

Now, a half hour down a winding dirt road below the less attractive concrete and tin Dadeldhura town, I'm in one of those stunning valleys, the hillsides covered with lanky pine trees above rolling meadows tumbling gently to a river strewn gorge below. There is a quiet beauty here so far from the congested, urbane yet painfully polluted city life of Kathmandu. Although I know better, it's easy to project an innocence on these hillside communities. But, as we learn, human life is never quite that innocent and the daily realities of a Nepali villager, almost anywhere in the nation, is often one of toil, limitations and crippling isolation.

Once again, as I've been doing regularly this year, I've come out for the field-based constitutional dialogues that we (UNDP) have been sponsoring around the country since last year. These are programs that my colleagues and I have designed to bring the work of the Constituent Assembly (CA) out to the villagers of the country, as well bring the villagers recommendations and submissions back to the leaders of the CA constitution-drafting process.

As I often say, "Nepali is the biggest small country in the world", given it stretches over the foothills of the Himalaya, so the distances are often much greater than they appear on maps. The other day it took us 12 hours to drive from Surkhet, the proposed capital of the proposed Karnali province to Dadeldhura, part of the proposed Khaptad province. Of course, we had a slight delay, typical to driving in Nepal, when we had to wait at a river, since the 200 m. bridge hadn't been completed in the two years they'd been working on it. The trucks raced through the knee-high waters without a second thought, but the smaller vans waited reluctantly, hoping that the waters would recede, until the dark clouds gathered and then we, too, raced through the waters with only our hopes and Shyam's good driving to see us across.

Today is our second day in the ridgetop town of Dadeldhura. Our three day Federalism Dialogue led by my friends and colleagues, Professors Krishna Khanal and Krishna Hachhethu, continues with 70 selected provincial civil society and political party leaders. But, for a change, I've stepped away to attend a Democracy Dialogue ("Loktantric Sambad") taking place on this rustic hillside by a small Durga mandir (temple) near a Dalit village full of ochre and white homes with grey slate roofs. This is the magical image of Nepal, lush green forested hills with the earth tones of the simple villages above the rice fields below. The scenes that attracted me so powerfully when I first came to Nepal a few decades ago and still resonant, even after all these years.

Love, it seems, as the poets over centuries have tried to warn us, is both blind and timeless...

The villagers are sitting around the small temple shrine as the facilitator begins to explain the purpose of this Democracy Dialogue. He lifts up the colorful, over-sized flipcharts which provide visual explanations of various components of the new constitution framework for all to see. He explains to the audience that this constitution is meant to be drafted with the support and input of all Nepalis, not just a small circle of 'neta-haru' (leaders) like the past constitutions in Nepal's short modern history. He tells the attentive villagers that the members of the Constituent Assembly, who they elected in 2008, want to hear from the people of Nepal while preparing this new constitution.

The villagers stir uneasily. They are unsure of the purpose of this gathering and politics is still an uncertain and, at times, dangerous activity in Nepal. The civil conflict between the government and the Maoists lasted from 1996 to 2006 spreading fear and loathing across the country. Although Dadeldhura was not at the epicenter of the conflict, every district and VDC was affected with youth being drafted into the war and people threatened by both the Maoists and the security forces as they were caught in between. Although a Comprehensive Peace Accord was signed in 2006 between the Maoists and Government and CA elections were held in 2008, real democracy and freedom of expression take much longer to establish the trust necessary to ensure firm roots.

Yet the young facilitators are well-trained, soft-spoken and concentrated. They gently coax and encourage the villagers to express their thoughts on the new constitution and their lives out here in the village. The facilitators, both men and women, note that this outreach initiative is supported by the UN, international donors, the government, the CA, local NGOs and some of their community leaders are here among them. Slowly, voices begin to speak and expressions heard.

The women dressed in the bright colors for which the Hindu world is famous are sitted together on one side of the hillock while the men in t-shirts or Nepali vests and the occasional Nepali topi (cap) sit in front of the facilitator. They are all Dalits (ex-untouchables, the lower rungs of the traditional caste system) from the nearby village.

Ironically, my friend and colleague, Tek Tamata, who I first hired to be the Program Manager for the UNDP project supporing the National Human Rights Commission and is now a Program Officer in the UNDP Country Office, comes from a village nearby. While chatting, one of his relatives points out that the home below us is his mother's maiti (parent's original home). Some of the people attending the Democracy Dialogue are his close relatives.

The facilitator takes the community through the flipchart page on the rights and duties of the citizen explaining what has been described in the CA committe reports. Afterwards one man speaks up, "Sir, may I tell you that we Dalits have been good and loyal citizens of the Nepali state for decades. What I want to know is when will the other castes in the country who have all the power learn about their duties and responsibilities to us, as well."

With no subtlety this village man is reminding the facilitators that Nepal's Dalits have never in the past been given equal opportunities under the Nepali Hindu state because of the long-standing caste discrimination against them. In a respectful tone, but firm words he is asking that the new constitution do more than the other previous constitutions to provide Dalits the equal opportunities from which other dominant castes have always benefited.

Another woman, sitting a bit far away starts talking in loud voice until the facilitator takes notice of her. "When will we, the poor people of the country, ever get the equal services that other people receive in Nepal. You don't need to talk about electricity, we'll never see that here in our village -- but what about government health and education facilities? When will the leaders of the country remember us after they return to Kathmandu. They always come to see us during their elections, but then then forget us. When will they remember their promises and send these services out to us?"

Another rather distinguished looking gentleman dressed well, until I notice that his pants and shirt are stained with overuse and a lack of washing, stands up. He has glasses, a greying beard and a quiet demeanor. "We have heard the commitments made in earlier constitutions. There are always good words to assuage the Dalits that the State will no longer discriminate against us. We have heard those before, as well. But, now, this time, we want more specific actions in the new constitution. We want to be assured that Dalits will have their proportional representation in all the structures and institutions of the State. We can ask for that. Will the drafters of the constitution hear us? Will they make this commitment when they write the constitution?"

While these community members speak their minds, one of the facilitators is writing on the brown paper taped to the stucco wall of the shrine. He writes down the various recommendations that the villagers request. Each one noted in simple, but clear Nepali script for all to see. After four hours, when the Democracy Dialogue comes to a close, all the participants come up to sign the sheets w/ their signature or a thumb print for those who never learned to write.

I'm asked to speak at the end, as their foreign guest. I speak in my village Nepali, "I'm sorry my Nepali isn't great, but I don't speak Doteli, your local language and you don't speak English, my language. But isn't that like the constitution? If you don't know what is in the constitution, if you don't know the rights that you are granted in the constitution, if you don't know the content of the new constitution, it's like not speaking the same language -- you can't communicate. Someone else can take your rights to benefit themselves. You need to know the language of your constituion so your family and your community can benefit from it. You can't depend on someone else to protect your rights. Because democracy begins here, out in the villages. This is where the roots of democracy take place and grow. It takes time to create a democracy, but unless you learn what is in your new constitution, until you insist on what you want in the constitution, you won't have democracy in Nepal. This, too, is your right."

So, the village disperses. I take a last 360 degree look at the simple beauty of this Himalayan landscape, as an eagle flies by hugging the ridge, so far from the casually modern world in which I grew up in America, distant, too, from my daily life in the bustle, congestion and power of Kathmandu. There is a graciousness here, no doubt, a sense of humanity, where people know each other all too well -- but society is a complex terrain, anywhere in the world, here no less than on the streets of American suburbia, and in those worlds resources are rarely shared fairly, evenly or generously.

As constrained as Nepal is, in its history and geography, there are real opportunities out here in its antipodes, potential unrealized, people unchained and future possibilities.

I only hope that our constitutional dialogues pry open these latent hopes and aspirations a bit and long enough for them to dig deeper roots in their local communities, for the sake of the future democracy of Nepal.

Jai desh!