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Nepal Conflict Alert
Nepal Conflict Alert
Op-Ed / Asia

Moment of truth

Originally published in República

Federalism and Ethnicity

Many of the more alarmist scenarios involving federalism have seemed close in the past week. With each shutdown or violent incident, there is more talk of conspiracy and infiltration. People are quick to impute “ethnic” motivations to others. Some fears are reasonable and others exaggerated. For instance, some clashes described as “Newars” fighting with “Chhetris” or “Brahmins” with “Gurungs” can also be understood as bandha behaviour: someone calls a strike, someone defies it and is beaten up or has their vehicle burnt. But the willingness to see such incidents as primarily “ethnic” in nature is indicative of the present mood. 

It is a fraught moment. But it could also be productive. Although many are understandably sceptical about extending the Constituent Assembly (CA) for another three months past its May 27 deadline, the politicians need one final chance. The temptation to turn this extension into another fight over prime ministership and waste more time must be avoided at all costs. The parties must reach a new deal on federalism with some new faces at the negotiating table. The top leaders’ May 15 agreement, which replaced “identity- and capacity-based federalism” with “multi-ethnic federalism” has been definitively rejected by over half of the CA’s 596 members and by groups outside. Clause-by-clause voting on the statute and public consultation have been abandoned.

To preserve part of the democratic constitution writing process, existing proposals need more discussion. Final decisions should have a constitutional basis, namely the work of the CA’s various thematic committees and the State Restructuring Commission, and input from representatives sidelined until now. Prime Minister Baburam Bhattarai and other leaders should speak directly to the nation with assurances that political wrangling will not overshadow public interest. 

Nepal’s political class has been haemorrhaging credibility. This is not because the new federal, democratic, inclusive republic is undesirable to most or because the CA no longer represents the people. The sharp rejection of the recent deal is, however, a sign that the rulers are losing touch. It is also a reminder that this is a democratic process. 

Tempers are high and the threat of violence is pervasive. Earlier, street actions and political violence could perhaps be somewhat calibrated and contained. Now, the multiplicity of actors has changed the game. So too has the fact that of all peace process issues, federalism goes most to the heart of ordinary people’s expectations and fears. The 2006 Jana Andolan, the Madhes Andolan, the janajati and Tharu struggles that followed, and the recent Brahmin-Chhetri and Unified Far-West strikes underscored the power of agitation. Street movements are not always benign and do not always have desirable aims or methods. But they become a difficult reality when ruling political classes appear disconnected or enchanted by their own legitimacy as elected representatives. 

Without renewed efforts to increase the legitimacy of the constitution writing process, various groups could again take to the streets to express opinions that would otherwise be heard in the CA and in the public consultation.

Since April, I have travelled to more than 10 districts in the mid- and far-west and eastern Tarai. In the past year, my colleagues and I have visited other hotspots of the federal debate, the eastern hills, the central Tarai, and all but one Maoist cantonment and spoken to hundreds of people across the political spectrum. In almost every conversation, one thing was clear: the focus on identity is not going away. Instead, it will become more nuanced as groups find new ways to live together, compete and benefit from the state. 

Kathmandu-based leaders and the CA should listen to people from outside the capital and the assembly. If they do, they will hear refined analysis about commitments they have already made (such as in the ongoing Tharu, janajati and Madhesi agitations); new iterations of “identity” (like the Unified Far-West movement); and the challenges ahead (for example, the debate in Tribhuvan University over implementation of inclusion measures). Politics will become more local, as every region has different concerns, and identity will become more prominent. This can look like fragmentation but for people in the districts and outside politics, this is about creating new categories to better reflect their aspirations.

There will be lively debates about the relationship between federalism and inclusion. Historically marginalised groups have received a commitment to “priority rights” but it is unclear what that means politically. It is also not clear that the border demarcations needed for the electoral shifts envisioned by the identity- and capacity-based models will happen. Naming rights might mollify identity groups, but do not address core issues. Yet, while demanding their rights, leaders of these groups must also publicly commit to a multicultural society. 

These issues will remain emotive. The Nepali public sphere will formulate its own take on debates well-established elsewhere about inequality, discrimination and privilege. Civil discussion about the reality of multiple layers of disadvantage will be needed. No single vector of identity, whether class, caste, ethnicity, gender, religion or region, will dominate. The idea that poverty or wealth alone is an equaliser will be questioned. Group rights will be invoked when discrimination and privilege are discussed; seemingly equal opportunity does not work the same way in unequal circumstances. A poor Limbu, for example, will probably note greater discrimination than a similarly poor Brahmin. 

There will be new alliances between groups previously sceptical of each other, such as Brahmins and Chhetris, janajatis and Madhesis. There will also be sharper divisions within groups. How will Yadavs and Maithili Brahmins share political space? Will Newars protest Kathmandu Valley being joined to Tamsaling? Groups considered disorganised or fractured could come together, like Tharus are in the Far-west. 

Language will matter, subtext will be everywhere. Cosmopolitan Kathmandu pushing for the “moderate middle” can be interpreted as telling marginalised groups not to ask for too much. Well-meant calls for social harmony can sound like “know your place”. It is easy to forget that women were accused of disrupting social harmony when they asked for the vote. For many, proof of equality lies in exercising their constitutional rights fully, including by gestures that might disturb the majority. There will be contestation over where rights end and offense begins. These are evolving debates that cannot be definitively resolved to everyone’s satisfaction. 

That should not mean the questions are not worth asking. If large groups of Nepalis claim the old order did not suit them, that they paid a price for the social compact, there is probably some truth in it. To neglect meaningful restructuring of the state and inclusion is to deny their experience. It is also a disservice to those Brahmins and Chhetris who are perfectly willing to welcome change. 

Nepal is multi-ethnic, and the many struggles for representation and recognition cannot be dealt with in isolation. For Brahmins and Chhetris, despite their indigenous status for now, state restructuring will be a zero sum game at some point. That needs to be acknowledged and put in broader perspective. During nation-building, sacrifice is often called for, yet it is striking that no leader mentions it with regard to federalism and inclusion.

The government’s acceptance of Brahmin and Chhetri demands, in the Far-west for a unified province and nationally for indigenous status, was seen by janajati and Madhesi groups as provocative. This was not least because the simultaneous—and ongoing—Tharu protests in Far-west Nepal claiming the same territory was ignored. In combination with the eleven-state “multi-ethnic”, rather than “identity- and capacity-based” model, these groups saw an attempt to abandon identity-based federalism. The frequent allegations of police bias and skewed media coverage against identity-based movements fan these flames. But violent responses to perceived backtracking and inequalities are unacceptable. They also devalue the broader inclusion agenda and make it harder for everyone who wants more inclusive and transparent negotiations. 

These are political questions that demand settlement by political actors. The CA and its leaders are elected representatives and the most legitimate sovereign body in Nepal. They need to immediately reaffirm their commitments to federalism and engage with dissenting opinions. This is the moment for statesmanship, humility and transparency. 

Nepalese police and United Democratic Madhesi Front activists clash in Birgunj, south of Kathamndu, on 31 August 2015. AFP/Manish Paudel
Alert / Asia

Nepal Conflict Alert

Spiralling protests against a draft constitution have left 23 dead and hundreds injured in Nepal in two weeks. An over-militarised security reaction and inadequate political response from the centre threaten to fuel deep-seated ethnic, caste and regional rivalries less than a decade after the civil war’s end. The major parties should recognise the depth of discontent and the fundamental challenge this poses to the legitimacy of the proposed constitution. A hastily-passed document, weeks after mobilisation of security forces to counter citizens’ protests against it, is unlikely to be the social contract Nepal needs.

The constitution, nine years in the making, was envisioned as an instrument to address longstanding grievances of large parts of society, who argue that the old system marginalised them from state institutions and political authority, deprived them of a fair share of the benefits of development and discriminated against them. These groups include plains-based Madhesi, Tharu and smaller groups, Dalit caste groups in the hills and plains, hill ethnic Janajati (“indigenous nationality”) groups and women. Many have concluded that the 8 August draft does not adequately deliver on commitments to a federal system and inclusion.

The government and its opposition partners in the constitution deal say they are under pressure to end years of uncertainty by passing the draft quickly. They downplay the significance of the protests, arguing that not everyone in a democracy can be satisfied and that the constitution can be amended. The state response to the protests has been security-heavy and in some areas, the army has been mobilised to deal with civic unrest for the first time since the civil war.

Kathmandu circles underestimate the scale and intensity of disagreement and the complexity of the often-competing grievances and claims. There are high-voltage public debates over disadvantage and structural discrimination that feed social resentments and grievances. These deeply-felt issues will continue to find expression in agitation and opposition if the present moment is handled badly. A botched solution risks entrenching communal polarisation in society and radicalising groups that feel their concerns were not seriously considered.

Reconciling the expectations of all Nepalis was always going to be a challenge for the Constituent Assembly. The 2006 Comprehensive Peace Agreement between the then Maoist rebels and representatives of political parties, as well as the 2007 Interim Constitution, promised political reform and redress for past inequities. Numerous social groups based on caste, gender, ethnicity, and regional interests lobbied for their agendas. Often, movements turned violent to force the government to take them seriously. Since 2007, governments have signed over 40 agreements, often contradictory, with different groups.

The recent violence was mainly sparked by delineation of the six-, now seven-state federal structure proposed to replace 75 administrative districts. Tarai-based groups wanted to keep stretches of the southern Tarai plains together, including by changing the traditional north-south administrative divisions, which mixed plains, hills and mountains in administrative zones. In the hills, some Janajati groups want to keep areas traditionally considered homelands intact, though this is not a focus of protests. Other issues are also highly contentious though not explicitly part of the current demands: a proposed citizenship measure which makes it difficult for children with a single Nepali parent to gain citizenship with the same rights as those who receive citizenship by descent; and the proposed electoral system and standards for demarcating constituencies, which may not deliver better representation of the agitating population groups.

Madhesi communities, one of the country’s biggest population blocs and the largest group across the Tarai, and Tharu communities, many concentrated in the far-western Tarai, say the current system puts them at a demographic disadvantage politically. They anticipate gains under the new system but object to some parts of the plains being included in hill states. Traditionally hill-based communities, and the framers of the draft constitution, counter that migration continues from hills and mountains to the Tarai, forming mixed communities, and that hill community members have land or commercial ties to the disputed areas. Madhesi and Tharu groups believe the major parties want to renege on the letter and spirit of earlier commitments to political empowerment and reform.

Within the Constituent Assembly, which functions as the parliament, there is discontent. The governing coalition consists of the Nepali Congress (NC), the Communist Party of Nepal-Unified Marxist Leninist (UML) and the Madhesi Janadhikar Forum-Democratic (MJF-D); its opposition partners in the constitutional deal are the Unified Communist Party of Nepal-Maoist (UCPN-M). The MJF-D last week said it could no longer support the deal if Tharu concerns were not addressed. The NC and UML have forbidden their members from trying to amend the draft; 33 smaller parties have refused to be part of the process, and the oldest Madhesi party, Sadbhavana, resigned from the Constituent Assembly last month.

There are protests and agitation in much of the Tarai. Kailali district in the far west, parts of which Tharu groups and the hill-based Undivided Far West Movement want for their respective new states, had the worst violence last week. The major parties revised the federal model to add a seventh state in response to the latter’s demands. That added to the discontent of Tharu groups, considered among the most historically marginalised in Nepal, who said their grievances were ignored as they lacked close ties to Kathmandu power centres.

Since the protests began three weeks ago, at least fifteen people have been killed by police in various parts of the country. On 24 August, seven police and a child were killed in an apparent attack by protesters in Kailali’s Tikapur town. Kailali remains under a 24-hour curfew. Given restrictions on movement, it is difficult to verify reports of significant displacement of Tharu families fearing or following retaliatory violence. Birgunj city and areas in the central Tarai are tipping into serious violence, with nine people killed by police this week. The National Human Rights Commission has not officially investigated any of the deaths. The army has reportedly been mobilised at different times in Kailali, Dang, Parsa, Rautahat and Sarlahi districts. There are concerns about communally driven violence and about the state’s response. An indefinite banda (strike) across the Tarai is in its third week.

It is unlikely the discontent can be resolved by a deal between power-brokers in Kathmandu that does not address core issues. While some district-level political leaders and parties that represent Tharu and Madhesi groups in the Constituent Assembly have been involved in the protests or support them, the mobilisation and leadership comes largely from within local communities. Many of the protests do not involve huge numbers, but rely instead on better organisation and target the shutdown of specific infrastructure, such as government offices and stretches of the national East-West highway.

The government must act urgently to address tensions, reduce the risk of more violence and to restore confidence in the constitution-writing process. The enormous trust deficit between agitating groups and Kathmandu’s political leadership will worsen if the government and major parties persist with a heavily securitised response to fundamentally political protests, and if they and the media portray the protests as marginal or criminal. The government should also urgently form an independent commission to investigate the recent killings.

All protesting groups must denounce and guard against violence from within their ranks, and avoid threatening or extreme rhetoric. They must also offer realistic alternatives, not just reject Constituent Assembly proposals.

The major parties say they are open to amendments and willing to talk to any group that feels it has been excluded. The government in early August conducted a four-day exercise to obtain feedback on the draft, though there is a public perception it will ignore suggestions that do not fit the current draft’s form.

The timing, sequencing and design of talks will be challenging. It is essential the government does not insist on artificial deadlines or preconditions and is ready to discuss the status of past commitments. The agitating groups are wary of being forced into an accelerated timetable within the Constituent Assembly. The government anticipates speaking to each agitating front separately, but Tharu and Madhesi groups may seek a joint negotiation. Small adjustments to the proposed boundaries of states in the far west and east would significantly lower tensions but are strongly resisted by some leaders.

Tenor will matter as much as issues. If there are more deaths and if groups feel negotiations are not respectful or in good faith, this could jeopardise confidence in other contentious compromises on citizenship, the electoral process, the number and distribution of constituencies, the threshold for political parties, representation and inclusion.

The anger in the Tarai and among various social groups is real. If it is ignored or mishandled, the violence will grow. If the new constitution is truly to be one for all Nepalis rather than a starting gun for new forms of conflict, its framers must recognise that getting it done right is more important than getting it done fast.