The mass movement of April 2006 in Nepal sought to restore parliament for the democratic process to continue and to initiate a peace process for the end of a ten-year long armed conflict. This required the Communist Party of Nepal (Maoist) to join democratic competition which in turn necessitated the devising of a constitution to manage root causes of conflicts afflicting the nation. Hence, a Constituent Assembly (CA) election, that would pave the way for an inclusive state responsive of social diversity and sustainable peace, was seen as the compromise solution among all the political forces.
A train of processes and events was thus set off resulting in the advent of current Nepalese politics. A Comprehensive Peace Agreement (CPA) was signed between an alliance of the seven political parties (six after the merger of Nepali Congress and Nepali Congress-Democratic) and the CPN (Maoist) on November 21, 2006. An Interim Constitution drafted and the restored parliament dissolved to pave the way for an interim legislature and interim government that included the CPN (Maoist) in 2007.
The ruling seven-party alliance (SPA) announced substantive structural reforms, such as declaration of the country secular, federal and republican. Civilian control of Nepal Army (NA), nationalization of royal property, empowerment of the Premier as head of state, abolition of the national unification day and substitution of the national anthem were announced as time went by. There were also reform measures such as greater inclusiveness regarding marginalized people in the CA, the bureaucracy and police. However, all these measures have allowed a neo-patrimonial regime to incubate, sapping the political will necessary to alter the policy and strategic development vital to transform the “structural causes of conflicts”.
This has hindered efforts for cultural, social, economic and political transformation needed to establish a well-organized virtuous state capable of instituting sound democratic governance.
The political transition has remained highly turbulent due to the open-ended nature of the conflict system. It is, therefore, hard to say whether Nepal has actually entered a post-conflict phase. The continuation of high political dynamics in the country now indicates a steady erosion of the writ of state and the low level of constitutional and government’s stability. This has resulted in a new bargaining environment for armed non-state actors and movement-oriented ethno- regional forces thus further limiting the scope for complex reforms, both involving long-term institutional restructuring and short-term policy interventions. The weakness of state institutions has further spoiled efforts to promote relief to vulnerable sections of the population and address conflict residues. Social movements of marginalized groups– women, Dalits (untouchable underclass), Janajatis (ethnic groups), Aadibasis (indigenous groups) and Madhesis (people living in the southern plains) — for identity, proportional representation, federalism and self-determination and insurrectionary activities of two-dozen non-state armed actors have upset the coherence of state-society relations in an unprecedented manner.
While the mainstream parties have interest in restructuring the state, the social forces favor restructuring political parties to expand the social base of politics. As a result, the SPA has missed three deadlines (June 14 and 20 and November 22) for the CA elections to draft a new constitution. It was forced to amend the Interim Constitution three times in eight months-(May 9, June 14 and December 18) to give in to rising demands that the political process was exacting and to give in to the voice of various agitating groups. Among the provisions included in the amendments the more significant ones empower the parliament to abolish the monarchy, if found plotting against the CA elections, and declare the country a federal democratic republic, subject to ratification by the elected CA, or even before that by a two-thirds legislators if the King poses a threat to the elections. Despite voices emerging for a space for monarchy and efforts of CPN (Maoist), NC and CPN-UML to woo its supporters, King Gynendra remains aloof from the power struggle.
All this has not changed the political dynamics for the better. The Madhesi People’s Rights Forum (MPRF), a group which organized violent protests in the Tarai where scores of people were killed last year, is demanding a fourth revision of the constitution to address the grievances of the Madhesis. The peace process kept in limbo by the political events appears to have been finally taken up with the 23-point accord reached among the SPA constituents on 23 December. It finally decided that it would establish a high level Peace Council and the six basic pillars of peace within a month. Accordingly, the National Human Rights Commission of Nepal has been assigned to probe into rights violations during past emergency rule, managing cantonments and providing remuneration to Maoist combatants, return of illegally seized public property, end to forced donation by Maoists, etc. It vows to hold the CA elections by April 10, 2008, has increased the number of seats for CA from 497 to 601 and began a common process of electoral socialization through joint mass meetings.
The process is marred by mutual accusations. On January 16, Minister for Peace and Reconstruction R. C. Paudel, made a public call on all the agitating groups for dialogue and facilitate CA elections. He has to be more strategic with the ability to strike a balance between achieving the human rights protection objective and responding to changing narratives of discourse, contexts, actors, issues, rules and political priorities. Constituent Assembly Elections
The Election Commission (EC) has already published the CA election schedule and enforced the election code of conduct from January 16. The parties contesting it will have to submit their closed list of candidates for proportional representation system by February 22, registration of candidature for direct voting will be opened from February 22 to 25 and the candidates will be given election symbols on March 2. The Interim Constitution recognizes the SPA but says that anyone else willing to register a new political party must submit 10,000 signatures to EC.
Many opposition parties – MPRF (Yadav), MPRF (Bishwas), Rastriy Prajatantra Party (RPP)-Nepal, Rastriya Janashakti Party (RJP), RPP, Nepal Sadbhava Party and Tarai-Madhesh Loktantrik Party (TMLP) have depicted the SPA as undemocratic in spirit and attitude and argued that setting the date for elections without creating a proper security and political environment is meaningless. The MPRF and TMLP blaming the deployment of Special Task Force “for creating terror in Tarai and helping the Maoist-affiliated Young Communist League (YCL), have threatened to stage a decisive agitation if their demands are not addressed by January 18. Nepal Federation of Indigenous Nationalities (NEFIN), a coalition of 54 ethnic groups, has put its dilemma this way: if it wages its movement, the SPA will be demolished; if not, the SPA refuses to implement the 20-pint accord it signed with the government. The meeting of the high level seven-party coordinating committee, a SPA coordination mechanism, is currently discussing the possibility of conducting elections in two phases, keeping in mind the security situation in the Tarai.
It decided to request the EC to postpone the implementation of the code of conduct for 15 days so that local bodies can be constituted. Finance Minister R. S. Mahat has requested Nepal’s international development partners to extend an additional assistance of $4.76 million to implement the 23-point accord among the SPA and to hold the elections. At the same time, an influential section of NC has warned of “Tarai disintegration” if election takes place in two phases. The decision of the government to distribute $15,870 to each legislator for the development of their constituency also stoked the fire of protest in the civil society. The pre-election perk out of the government coffer does not make the election competitive process. It is such controversies that overturned the election apple-cart in the past. A badly designed election can easily foment social divisions, fragment the political sphere, institutionalize sub-national conflicts and embroil the nation into the centrifugal pressure of regional geopolitics. Tarai’s Geopolitics
Twenty-two districts in Nepal’s southern plains bordering India constitute the Terai or Madhesh. It is fertile area and is linked to Nepal’s major supply routes to hills. After the declaration of secular state and talk about redistributive land reforms, the glue that bind hill and Tarai communities got lost. The Madhesi movement spearheaded by the MPRF wants the declaration of the Madhesh as an autonomous region, talks with armed Madhesi groups, balanced distribution of state revenue and income to Madhesh, proportional representation in all the governance institutions including the NA, appointment of chief administrators in Madhesh from the Madhesi communities, return weapons captured by Maoists to the concerned people and declaration of those killed during the Madhesh movement as martyrs including compensation for their families. The TMLP has expressed its desire to have its own state organs for the plains. The two radical components of Janatantrik Tarai Mukti Morcha (JTMM) demand international mediators like the UN to resolve their issues and a separate independent state. India’s assertion that “Tarai’s demands should be addressed,” has provoked a prickly reaction from various political forces.
Premier Koirala who had earlier assertion that the “Tarai problem can be resolved within a minute with India’s cooperation” has led to suspicions about an ‘Indian hand’ in the unrest. India’s main opposition, Bharatiya Janata Party (BJP), however, criticizes the Indian government for remaining silent on the collusion of Indian and Nepali communists for creating turmoil in both countries and quashing of the symbols of Nepal’s stability and unity-Hindu state and monarchy. An open border with India, existence of co-ethnics across the border and affiliation of each group and political party with like-minded ones in India create a context in which resolution of conflict requires confidence-building measures from both sides. The violent conflict in the Tarai has forced the hill people to migrate to safe places and create their own mechanisms in the area, like the Chure Bhavar Unity Society (CBUS) that positions itself in the foothills bordering the Terai and the mountains, for autonomy and self-defense.
The autonomy movement in the Madhesh has snowballed into ethnic Tharus, Rais, Limbus, Tamangs, Gurungs, Magars, Dalits and Newars also demanding autonomous federal states based on the right to self-determination. But, there is no unity among Madhesi groups due to their multiple caste, language, religious and ethnic identities. For example, TMLP leadership is dominated by high caste groups, MPRF by intermediary caste groups and JTMM by lower caste groups. The government’s Special Task Force (STF), deployed in Kathmandu and eight Terai districts, has failed to penetrate, divide and destroy criminal networks and create public security for local governance to operate. Nepal’s problems cannot be tackled without taking this regionalism into account and identifying ways to address it. No matter how one looks at this problem, it seems obvious that there is no military solution. The political package must create a situation favorable to all groups where they see they have more to gain through peace than violence. An election in a security and authority vacuum will neither have legitimacy nor ability to institutionalize democratic polity. Law and Order
The Nepalese army has expressed its commitment to democracy and a nationally-owned security sector reforms. But, Chief of Army Staff, Gen. R. Katawal clearly said “No” to integrate the CPN (Maoist) combatants. The UN has verified 19,602 politically indoctrinated People’s Liberation Army (PLA) out of its total force of over 32,000. Premier G. P Koirala agrees with the army’s viewpoint and has given options to Maoists- to integrate the PLA into industrial security groups or give them priority in foreign employment. Nepal’s total strength of security forces stands at 165,000– NA (92,000), the civilian police (48,000) and Armed Police Force (25,000). The NA is holed up inside barracks as per the peace accord. The existence of these two adversarial structures does not provide any incentive for confidence building and to pursue a viable peace process for the future. Similarly, without disarming all autonomous armed groups and improving civil-military relations, the chances of free and fair elections remain fragile.
Erosion of state monopoly on power, taxation and loyalty of citizens, growth of competitive violence and failure of statehood in governance have confiscated the state’s capacity to provide security in the country. As a result the ability of the political system to maintain balance of power between different governance organs is severely undermined which is telling on its capacity to enforce rule of law, provide service delivery and resolve the multi-layered conflict. SPA’s control over the legislature, the executive control over the judiciary and a lack of legitimate opposition have established monopoly rule. There is an absence of institutions protecting property rights and promotion of collective goods. Nepal has a very weak middle class and poor mediating agencies to protect the rights and welfare of the poor. Tax contributes 12 percent to GDP and the contribution of public sector output to GDP is only about 7 percent. Foreign aid constitutes 70 percent of development outlays. Domestic revenue raising capacity is very poor. Easy borrowing from international institutions has established the government’s autonomy from their tax paying citizens.
As a result, the government is less concerned with institutional capacity of the state to deliver governance goals. The substantial contribution of remittance to GDP (17 percent) too has detrimental effect on the accountability of government. GDP growth rate of 2.3 percent hardly balances out the population growth of 2.2 percent. The daily per capita income of $ 1 puts Nepal’s human security condition at the bottom of world development statistics. Feudalism, caste hierarchy and patriarchy have suppressed social mobility of the underclass. This lack of social and economic security has made Nepal’s politics highly inflammable amidst radical appeals and growing frustration. Nepal’s bureaucracy, police and public institutions are highly politicized along partisan lines, de-motivated, show poor esprit de corps and weak to enforce rule of law and deliver essential public services. “The rulers have no trust in the constitution, leading to its failure,” Chairman of the Constitution Drafting Committee, Laxman Aryal said on January 15. To him, the constitution emerged as a compromise among SPA constituents for the transition politics until the CA election is conducted. It, therefore, does not hold the principles of constitutionalism. He added, “We saw nothing during its first year, but chaos and deterioration of law and order.” This condition has made national integrity system ineffective in controlling crime, corruption and impunity.
Public institutions and enterprises are still monopolized by ruling parties. Sense of public trust in the authority, assuming that the government is trustworthy and acting in the public interest, is sharply declining. Lack of a boundary between leaders’ personal and institutional interests has given birth to a political culture of clientalism although new social movements of women, youth, Dalits, indigenous people and ethnic groups are increasingly challenging the position of authority fixed at birth, lineage and patronage. They are seeking to remold the pre-modern political culture of mutual distrust, betrayal and revenge and into post-conflict modern culture of a shared future based on social justice, democracy and peace. Voice and Participation of Marginalized
The struggle for human rights in Nepal for liberation, entitlements and social opportunities still remains unfinished. Chairman of the National Human Rights Commission of Nepal (NHRC) K. N. Upadhaya stresses the need for joint efforts among the human rights organizations and individuals to mitigate human rights violations in an effective manner. The government’s presence is felt to some extent only in Kathmandu and some urban nodes. Killing, kidnapping, extortion, strikes, food shortages, rocketing prices, shrinking job opportunities and growing fear have deteriorated human rights conditions in the periphery. Last year, 130 civilians got killed by various forces. Seventy-two political parties have applied in the EC for registration. This number represents asymmetry and diversity in Nepalese social life. A number of social groups are struggling for social, gender and inter-generational justice in the party structure of mainstream parties. Internal party democracy is essential to make political power proportional to its representativeness and end the fissiparous tendencies that have sapped their social integration potential.
The country has 102 ethnic groups and more than 82 languages. No single group claims more than 18 percent of the population. This means it is a country of minorities and there is no institutional mechanism to prevent the minority from becoming a majority. Civil society groups are columnized along partisan lines. This condition has marred the possibilities for cooperative action for public service. Despite the legislation of the Right to Information Act, the media is unevenly distributed just like the per capita income and, therefore, people of backward and remote areas have no access to the public sphere in shaping the agenda. In contrast, the apex body of media persons, Nepal Federation of Journalists, revealed the condition of media freedom this way: Between April 24, 2006 to December 1, 2007 one journalist was killed, one disappeared, 74 detained and 128 threatened. There were 203 attacks on media houses, 129 journalists lost their jobs and 55 media houses were shut down. Engagement of the International Community
For an international community caught in a fluid political climate, it will be hard to enlarge the development space as agreed in the Basic Operating Guidelines (BOG), other than relief and humanitarian supplies. The presence of the international community in Nepal acts as a deterrence against excessive use of violence and abuse of human rights. Japan has put Nepal in the category of a “fragile state.” By definition, a fragile state creates a situation for humanitarian intervention owing to anarchy of free wills, poor governance and failure to enforce rule of law. India has often insisted that elections to the CA must take place on time at any cost, but remained silent when the SPA failed to create a favorable security and law and order situation.
The European Union and the US are insisting that the security situation in Nepal must improve for a credible, free and fair election. On January 18, the US Ambassador to Nepal, Nancy J. Powell suggesting the government and political parties to fulfill earlier commitments made in the peace accord said, “The CA polls will not guarantee sustainable peace in Nepal. What is necessary for the sustainable peace is loyalty to the nation.” On January 11, UN Secretary-General Ban Ki-Moon submitted his report to the UN Security Council proposing a six-month extension of UNMIN’s mandate to support Nepal’s peace process through CA elections. He has advised against downscaling the UN’s presence, emphasizing that it could imperil prospects for a successful election, except in the cases of technical assistance which has already been provided. The UN too favors a credible CA election with improved security, government’s engagement in a dialogue with disgruntled groups and abolition of the culture of impunity. Unlike the EU, however, India, the US and China have geopolitical priorities.
India’s role in bringing the SPA together against the ‘monarchy’ in November 2005 and their joint struggle forced King Gyanendra to hand over power to the political parties. As the SPA established their monopoly over power and resources but failed to maintain security and rule of law, it evoked the security concern of neighbors. China has voiced against “any foreign intervention in Nepal,” showed interest to actively involve itself in Nepal’s peace process, expressed anxiety about the events taking place in the Tarai and asked the Nepalese leaders to take independent decisions depending less on outside forces.
Aid coordination and coordination of government-donor practices have become particularly important in Nepal, especially to engage both sides in abolishing the historical practice of clientalism and paternalism, building trust on each other’s role and engaging in multi-dimensional aspects of the peace-process, such as state-building, support to constitution-making, transport, communication, energy development, education, agriculture, rural development, water supply, finance, health and sanitation and sustainable development. Conflict mitigation projects should involve rehabilitation of the damaged infrastructure and internally displaced people, rural reconstruction and eradication of the root causes of mal-development which, in the first place, triggered the cycle of conflict. Expectation of People at the Grassroots Level
The media and the political leaders have generated unrealistic expectations among the population that the CA is the panacea that will fulfill all their needs and desires. It was important to cast the message that CA is meant to frame a draft of the constitution and the necessary laws for governance. People at the grassroots level are expecting informed and reason-based knowledge about the constitution-making process, the suitability of the election system, improvement in security and are concerned about political stability, cooperation from outside, avoidance of unnecessary foreign intervention, knowledge about the modern state, functions of political systems, government, political parties and leadership, enfranchisement of citizens and their stake-holding in public institutions, social cohesion, support in education, health and economic activities and social justice. Minorities are increasingly questioning about their human rights in a majority dominated federal state.
They want to know about their role in the multi-staged negotiation with the CA, suitability of federalism, concept of a republic and the vision of a New Nepal. Ordinary people also ask about the mixed election system that has been adopted and which presents a new challenge- what with the twin-ballot paper for voters and administration. FES training series on civic education has created a synergy as demands for such activities from various quarters have increased, advocacy documents have been utilized by all sides, resource persons interviewed by the media and published in the local papers. They were even involved in non-partners’ activities with the same advocacy resources. In general, our programs have strengthened the civic competence of citizens as they can debate on equal terms with their leaders and contest their view points.
In many conflict-hit places, our activities provided space for dialogue among heterogeneous participants and directly contributed to building public opinion, democratic will-formation and reconciliation. We also tried to encourage participants to speak up and share their views rather than just receiving top-down dissemination of knowledge and information. In many places, they suggested to us to provide training to central level leadership and demanded more seminars in the districts and villages so that dialogues across diverse communities can build trust between conflict-torn societal groups and improve their relations with the state. Road Ahead
A credible, free and fair election depends on the ability of the political parties to create a secure environment for political actors and voters, cross-party consensus on security plans in the Tarai, engagement of movement-oriented and armed non-state actors opposed to the elections in constructive dialogues to address their outstanding grievances, dispelling the threat of pro-monarchy forces through inclusive measures and a common process of socialization and goal-orientation towards democratic peace. What happens if elections do not take place on April 10? In case the CA election does not take place as scheduled, then this constitution, parliament and government will suffer from legitimacy deficit. The first scenario is well articulated by Minister without Portfolio Sujata Korala, “The constitution of 1991 will return.”
This will satisfy the traditional forces and its resistance to change. But, there will be a dangerous polarization between the radical and the conservative forces. The second scenario is the creation of a civilian government with the backing of NA. A CPN (Maoist) ideologue calls it a “democratic coup,” because civilian politicians, not the King, will be utilized. A lot of things depend on the move of the international community because Nepal is an aid-dependent country and its policy, power and legitimacy flow from it. Similarly, it requires to win the confidence of India, the US and China as they are geo-strategically enmeshed in Nepal’s internal developments. A group of civil society and opposition parties are opting for a broad-based national government to hold elections. The third scenario seems optimally satisfactory if the major insurgent groups are engaged in dialogue and national consensus. Civil society groups should serve as a mediating ground for all political perspectives and mobilize national and global