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Nepal’s Constitution (I): Evolution Not Revolution
Nepal’s Constitution (I): Evolution Not Revolution
Table of Contents
  1. Executive Summary
Nepal’s Political Faultlines
Nepal’s Political Faultlines
Report 233 / Asia

Nepal’s Constitution (I): Evolution Not Revolution

Nepal’s major political parties must urgently agree on a roadmap to negotiate on federalism and write the new constitution, whether by holding elections to a new Constituent Assembly or reviving the previous body.

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Executive Summary

Nepal’s peace process was to end with a new constitution. Yet, after four years of delays and disputes, the country’s main political parties were unable to agree on federalism, a core demand of large constituencies. On 27 May 2012, the term of the Constituent Assembly, which also served as parliament, ended without the new constitution being completed. The parties must now decide what to do next: hold an election for a new assembly or revive the last one. This will be hard. Obduracy on federalism, bickering over a unity government, a changing political landscape and communal polarisation make for complex negotiations, amid a dangerous legislative vacuum. The parties must assess what went wrong and significantly revise the composition and design of negotiations, or risk positions hardening across the political spectrum. Talks and decision-making need to be transparent and inclusive, and leaders more accountable. The public needs much better information. None of this will necessarily mend the deep social rifts, but it would reduce space for extremists and provocateurs.

Until there is a new constitution, Nepal is guided by the 2007 Interim Constitution and the 2006 Comprehensive Peace Agreement (CPA), which provides for the state to be restructured to address entrenched inequalities, often rooted in discrimination based on identity. But federalism is not only about devolution or quotas. For groups that feel their culture, history or language have been sidelined by a unitary state-sponsored Nepali identity, it is also about dignity and recognition. A standoff has emerged between upper class and dominant hill-origin upper-caste populations on the one hand, and ethnic communities often described as historically marginalised on the other.

These divisions map clearly on to party politics. The traditional parties are the Nepali Congress and the Communist Party of Nepal (Unified Marxist-Leninist), commonly known as UML, which emerged as the second and third largest parties in the 2008 elections to the Constituent Assembly. These parties, currently in the opposition, are sceptical about acknowledging identity in a federal model. They have been encouraged by an upper-class, upper-caste backlash against the new pro-federal and pro-iden­ti­ty politics order. The two main forces in the ruling coalition, the Maoist party and the Madhesi Morcha, a front of parties representing Madhesi populations of the southern Tarai belt, were the largest and fourth largest in the assembly, respectively. They coalesced with a cross-party caucus of assembly members from janajati groups (the numerous ethnic groups outside the Hindu caste system who claim distinct languages, cultures and sometimes historical homelands) into a powerful pro-federalism alliance, with connections to social movements. They say the agenda should be set by the majority, namely themselves.

Public discussions have focused on whether “ethnic states” should be established. Sceptics of federalism sometimes define these as mono-ethnic entities where populations other than the majority ethnicity would be unwelcome. Yet discussions in the assembly made it clear that no group would enjoy a majority in any state. Nepal’s extraordinary ethnic diversity simply does not allow this. Demands for preferential political rights to be granted to the dominant ethnic groups in each state were ceded two years ago. Madhesi, janajati and Maoist actors do, however, care about how many states there will be, naming rights, and boundaries that give them a slight demographic and possibly electoral edge. Madhesi parties also focus on inclusion in state institutions.

The assembly ended because leaders of all parties, new and old alike, made secretive, top-down decisions. They were dismissive of their own members and never explained the issues at stake to the public, relying instead on fear-mon­ger­ing and extreme rhetoric. Throughout the peace process, decisions on the main points, whether the constitution or the former Maoist army, have been hostage to bargains on government formation, enmeshing power sharing with substantive issues.

The peace process has relied extensively on a tired idea of consensus between the parties. Until the constitution was completed, the main parties were to agree on all major decisions to ensure broad buy-in. This sometimes prevented the worst case scenario, but it also devalued democratic participation. Instead of discussions in the assembly on real issues, senior leaders cobbled together inadequate or unrealistic deals purportedly to save the peace process, but often about their personal futures or getting a share of government. Deep disagreements between the parties were papered over. Donor activity has sometimes unwittingly supported this tendency.

As no single party won an absolute majority in the 2008 elections, the contingencies of unstable coalition politics allowed the parties to throw government formation into the fray with constitutional issues. The deep polarisation over federalism meant that on 27 May 2012, any constitution could have elicited violent protests. The situation has calmed, but triggers remain. There is no agreement on the way forward and no minimum common understanding of federalism.

When the assembly ended, Nepal also lost its legislature. The absence of an elected parliament, coupled with the high trust deficit between the government and opposition parties, bodes ill for stability. For all the parties, deciding on how to resume constitution writing is inextricably linked to government coalitions and electoral calculations. Indeed, the discussion between the parties since the assembly ended has been dominated by questions of whether, when and how the government will change. A broader constitutional crisis looms if the opposition leans on the largely ceremonial president to challenge the government. The political context is shifting; parties are trying out new agendas and alliances and new actors are emerging. Divisions are rife within the parties – the Maoists have already split – and contradictions run deep in the alliances.

Denying moderate identity-based claims makes the polarisation worse and risks stoking communal tensions, as does dismissing the fears of groups that feel they will lose out. Explaining the debate will clarify it, but resolve little. Parties need to present a roadmap with broad buy-in before either going to elections or bringing back the assembly. For this, they can build on the work already done. Between themselves, they need guarantees on power sharing. Elections now could help clarify the context, but they will in effect be a referendum on federalism and risks of violence are real. For once, issues matter in Nepali politics. Mainstream parties are best positioned to reflect the country’s ethnic complexity, especially as the balance of political and social power is such that no single party will capture the votes of an entire group.

Kathmandu/Brussels, 27 August 2012

A man walks along the street near a collapsed house following one of the earthquakes in Kathmandu, Nepal, 1 May 2015. REUTERS/Navesh Chitrakar
Commentary / Asia

Nepal’s Political Faultlines

International Crisis Group worked regularly on Nepal from 2003-2012, publishing 33 reports in the period leading up to and following the 2006 Comprehensive Peace Agreement that ended the country’s decade-long civil war. Since 2012, Crisis Group has maintained a watching brief on the country.

Nepal’s people live a constant struggle to accumulate some insulation from the hardships and arbitrariness of life. They contend with a challenging landscape of hills, high mountains and plains threatened by dangerous rivers, capricious weather, an immutable bureaucracy and treacherous politics. It often takes just a little thing to tip the balance against survival.
The 25 April, 26 April and 12 May earthquakes were big, very, very big. They have ripped apart the lives of hundreds of thousands of people and the landscape in which they live. And they could also open up Nepal’s political and diplomatic faultlines.

The first earthquake and a huge aftershock the next day flattened some 600 villages in central Nepal and parts of Kathmandu Valley, triggering massive landslides and avalanches across one of Nepal’s more heavily populated hill regions.[fn]For an interactive map of the damaged areas see:​ http://quakemap.org/mainHide Footnote On 12 May, when relief efforts had gained momentum and a semblance of normality was returning to Kathmandu, another strong earthquake devastated houses and villages already damaged in the earlier one, flattened new areas and terrified people trying to pick up the pieces of their own lives and help others.

So far, over 8,500 people are known to have died and close to 18,000 injured. About a fifth of Nepal’s 28 million people have been affected, with hundreds of thousands still enduring unimaginable suffering. Thirty of Nepal’s 75 districts were hit, 16 of them severely. About 600,000 homes have been destroyed, and tens of thousands more rendered uninhabitable, leaving some three million people without a roof over their heads. Over one million people may end up being displaced. These numbers will certainly rise. Some of the worst-affected victims are hard to reach and still need emergency shelter and food supplies, while many areas have not yet been cleared.

People are sleeping out in the open or under plastic sheets that may or may not endure another few days. It has been unseasonably rainy, so they are often cold, wet and hungry. Next to their temporary shelters is the rubble of their homes and villages. Buried in that rubble are their possessions, food stores, livestock, vital paperwork, and for many, their loved ones. Many who lost family members had to perform hasty burials or cremations and are unable to conduct last rites, which causes even deeper pain. Strong aftershocks continue. The men in most families work far away and cannot easily return to help rebuild homes and lives.

Like most Nepalis and other foreigners long engaged with the country, I have no appetite at this time to be critical, particularly of a legitimately elected government, or to make the perfect the enemy of the good.

Many parts of government, including medical personnel, civil servants and members of the security forces have been working intensely hard in very difficult conditions. There have been extraordinary efforts to provide relief to the districts by Kathmandu residents, many of whom were spared the worst effects of what is being called the Great Earthquake. Help has been sent from parts of the country’s Tarai plains and the Nepali diaspora. Local leaders have been an important hub of coordination in the affected areas. Nepal’s neighbours and other countries also sent help first and left the details to be worked out later. The government attempted correctly but clumsily to regulate the explosion of institutions and individuals – national and international, legitimate and dubious – who emerged to help Nepal. International agencies and Non-Governmental Organisations (NGOs) already present in the country have been sending out relief materials and trying to coordinate. Everyone wants to help.

There are already sharply divergent narratives about the earthquake and the response to it

Most efforts deserve profound appreciation. At the same time, there are already sharply divergent narratives about the earthquake and the response to it. These accounts reflect some of the faultlines in Nepali politics, governance and society, and in international engagement with Nepal. The complex politics surrounding the response to the earthquake will influence how much people suffer and for how long. They will also determine whether the enormous reconstruction effort needed in the affected part of the country will bring the country together, or return Nepal to the politics of partisanship and bitter polarisation.

One narrative, often embraced by some internationals, has the government as the bad guy: slow, incompetent, power-hungry and criminal, thus incapable of leading the reconstruction. From a Nepali perspective, internationals are often seen as unaccountable and un-transparent, expensive, and disrespectful of Nepali expertise and sovereignty. There is a nationalist reaction against what many Nepalis perceive as Western countries and the UN laying down hypocritical and unrealistic normative standards for their country, especially in the wake of the 2006 Comprehensive Peace Agreement that ended the country’s long-running Maoist insurgency.

One reality is that citizens, non-resident Nepalis and friends of Nepal mistrust the government so much that they would rather send money directly to individuals and organisations. At least one U.S. money transfer organisation waived all fees to get money to where it was needed, while some people used illegal international money transfer mechanisms or smuggled in suitcases of cash. On the other hand, some Nepalis insist that government is the sole legitimate authority and must have control and oversight of all aspects of relief and reconstruction. Others are severely critical of politicians, suggesting, perhaps unwittingly undermining democratic processes, that efficient government may be one in which politicians are sidelined in favour of the bureaucracy and security forces.

Finally, in society at large, the approach to reconstruction and recovery is framed in different ways. Some say that the earthquake did not discriminate and everyone in the affected areas is suffering and traumatised. Others say that those likely to suffer the most and longest are people who lack access to powerful networks and those who have been marginalised due to poverty, geography, ethnicity or gender, and that reconstruction efforts must be sensitive to this.

At the moment, few people have the luxury of thinking about the peace process or the promises of the 2006 Comprehensive Peace Agreement, many of which remain unfulfilled. Until last month, the second Constituent Assembly elected since 2006 was still negotiating the terms of a new constitution, meant to mark a transition out of the interim arrangements that have organized formal political life for the last nine years. Some issues debated for the new constitutional order, such as federalism, will again be relevant as the post-quake political order settles in and people have had a chance to assess the locally-led relief efforts. Other peace deal issues, such as land reform, have been ignored but may gain new relevance as the reconstruction commences.

Map of Nepal CRISIS GROUP/UN

Coordination between the bureaucracy, the democratically elected government and the Nepal Army will be central in determining how relief efforts segue into reconstruction, but there have been signs of strain.

The army has at times appeared to act autonomously, and even though Prime Minister Sushil Koirala holds the defence portfolio in Cabinet, few in Kathmandu believe there is much meaningful civilian control over the military. Some observers point out that, had the security forces waited for instructions from the government, there would have been a deadly delay in initial search and rescue operations.

In the all-important bureaucracy, many feel they are being unfairly blamed for the government’s tardy public response, and that civil servants, not the security forces should have been visibly in the lead in the initial emergency response.

Nepal has fractious coalition governments, and even if the current one were transformed into a government of national unity, there is no guarantee there would be fewer fights than in the past between the political parties over ministries, influence and resources.

As the long process of reconstruction begins, there are likely to be tensions, accusations of graft, and differing perspectives on the best way forward. This will all be complicated by the shifting dynamics of domestic politics. Any confusion over which parts of the government and state are in charge, and where, is unhelpful and potentially toxic.

Devastation following the Nepal earthquake, 27 April 2015. ReSurge International

Reconstruction efforts need to be handled with care, if the humanitarian disaster is not to presage dangerous political confusion. When the immediate crisis has passed, some agreement should be reached between the political parties on constitutional issues so fights over them do not bedevil governance, as has been the case for years. It is also essential for all sides to support – and not be afraid of – strong and multifaceted civic monitoring of reconstruction efforts, which can help refine projects and encourage greater transparency and trust.

Shelter and land, food security and sufficiency, livelihoods and migration, and mental health stand out as priorities for the reconstruction effort. Deeper knowledge of and respect for Nepal’s complex and rich environmental conditions must underpin these efforts, to mitigate the risks posed by infrastructure projects such as hydropower dams and roads, as well as to enable Nepalis to live and work more safely between the Himalayas and the plains.

Entire mountainsides have disappeared, taking thousands of precious hectares of terraced farms with them. Many villages cannot be rebuilt where they were. No one knows how the millions of tons of rubble will be disposed of. There are endless debates in Kathmandu about temporary versus semi-permanent housing, building materials and codes. If other natural disasters are a guide, many people will end up living for years in the first shelter they get after their battered tarpaulins are replaced.

As the displaced are resettled or move in search of shelter and farmland, they will add to the complicated dynamics of Nepali politics and society. For some, the answer to the missing land may lie in migrating to Kathmandu Valley. But many buildings are dangerously cracked here too and there is already a housing crisis. At the best of times, the Valley can barely cope with its four million people. Large groups of people may cluster around small urban centres in the middle hills or in the Tarai plains. Sudden demographic changes may have implications for volatile regional and identity-based politics. The temptation may be to place people for an indefinite period in what will in effect be vast IDP camps near district headquarters, a solution as unsustainable and fraught with political, natural and social risks as it is insensitive.

Sensible plans for new settlements and decent housing in the affected districts and areas where people resettle could usefully generate employment and create a new type of economy, but employment and cash alone can’t address the issue of food sufficiency in the affected districts. Many who lost their homes and villages have also lost the terrace fields and seed stocks that would have normally ensure that they had at least enough to eat for the year.

Nepal will need international assistance to rebuild, but there are already bitter debates about how funds should be channeled and decisions made.

Nepal will need international assistance to rebuild, but there are already bitter debates about how funds should be channeled and decisions made. A side effect of Nepal’s peace process since 2006 is that the Nepali establishment has become more assertive with many of its donors. Relations have become strained between the government and parts of the international community, including the UN. This has been one reason for the seeming slowness and inadequacy of the relief response and is a major concern for reconstruction. It may also be a factor behind the government’s inexplicable decision to claim that the emergency relief phase is now over.

There have been sharp disagreements, including about the mandate and performance of the UN Mission in Nepal and the Office of the High Commissioner for Human Rights; about the application of human rights laws and standards; about the transitional justice process; about whether donors should have to channel development funding through the government; and about the place of social and political inclusion in Nepal’s transition. This last is especially significant because many in Kathmandu feel that the international community has stoked ethnic and caste divisions by supporting the inclusion agenda. The debate has fed into deep social anxieties and sharp domestic political divisions.

Yet while Nepalis have been aware of the rate at which trust has been deteriorating, many on the international side profess to be surprised by how bad things are, displaying a lack of institutional memory and willingness to take any responsibility for the messy relationship.

The two sides have no choice but to work together. They can do it squabbling and slowly, or quickly divide up the urgent tasks to be done to alleviate some of the added dangers and misery of the monsoon and then the coming winter.

The phrase “international community” is misleading in any case. In the context of Nepal, it is generally understood to mean Europe, North America, Japan, Australia and New Zealand; the UN system and all aid agencies and international NGOs. But a vital part of the complexity of Nepal’s relations with other countries has to do with its neighbours and great powers of the region, India and China.

Both countries have helped Nepal in this very chaotic time. The open border with India has allowed private Nepali relief efforts to source supplies and enabled a Médecins Sans Frontières team based in India’s Bihar state to reach some critically affected areas on 26 April. Chinese teams have helped open up vital roads buried under landslides in some of the hardest-hit areas near the border. Both countries have helped deliver relief to areas unreachable by road and evacuate the injured.

Yet relations with India have always been fraught, despite cultural affinities. Nepal feels a great and often resented sense of dependency and India is tempted to try to control events. China, traditionally concerned primarily with the movement of Tibetan refugees over high mountain passes, has become more visibly interested in Nepal’s domestic politics.

Both India and China exert pressure on Nepal to take cognisance of their respective geopolitical concerns, for instance including some reported nervousness about the arrival in Nepal of emergency response teams from 21 other militaries, including the US and the UK, in the days after 25 April. Such pressures could be playing a part in the government’s reluctance to accept some forms of international support.

Replicating often inefficient and overly complicated habits from the development world is one of the worst things that could happen to the reconstruction efforts

How will these enormous challenges be addressed? It is deeply ingrained in the psyches of internationals and many professional Nepalis that the way to fix grave problems in Nepal is by treating them as the subject of development projects. So reconstruction efforts after a natural disaster, for example, or compensation for war victims, are treated just the same as if they were programs in maternal health or sanitation and hygiene. Yet clearly, a natural disaster on this scale needs a response that is more robust, transparent and creative. Replicating often inefficient and overly complicated habits from the development world is one of the worst things that could happen to the reconstruction efforts, even if it is perhaps inevitable.

Nepal’s development industry, by which I mean international agencies and NGOs, as well as Nepali NGOs, the government and bureaucracy, is sclerotic and often inefficient. This is not to say it does not ever work; it obviously does, in some ways. Yet it also sometimes creates or entrenches dynamics of inequity or resentment. The development industry is by now fused with the Nepali state by such great mutual dependency that a rupture of any significance seems unlikely. The tensions and disagreements with international partners on the diplomatic level will, however, cause complications and sluggishness. All sides bear responsibility for the storied corruption of the sector and, at the worst of times, insensitivity to what could trigger new conflict.

Donor agencies are far from innocent in this grubby picture, despite holier-than-thou criticism of the government of Nepal and Nepali partners: their programming often ignores history; they are so enamoured of comparative experience and international best practice that they can miss the reality right in front of them; they privilege “expert”(read foreign) knowledge over “local”perspectives; they play favourites; and at their worst, they count the lives of internationals as having greater value than of Nepalis. Like their Nepali counterparts, their perspective is grievously Kathmandu-centric.

The immediate fight is about where the money goes and who spends it. The government initially announced that emergency funds should be channeled to a new Prime Minister’s Relief Fund account. It later amended this directive to target funds being sent for groups that were not registered before the earthquake. This is not insignificant, given the explosion in civic fundraising efforts and the influx of a huge number of organisations with no previous Nepal experience.

The general expectation of the government is that long-standing international partners should also channel their funds through the government. Internationals disagree, saying that when they have given the government funds for rehabilitation in the wake of natural disasters before, successive governments clearly never done what they promised. Those who support the government’s position say that in the past, international agencies have used natural disasters to expand their areas of operation without consulting with the government.

The other part of the equation is how relief and reconstruction efforts will take place in districts. The government wants a “one window” policy to disburse all aid and manage reconstruction. Some Nepalis and many internationals find this problematic, arguing that it will be difficult to target needs effectively and that such a system could encourage corruption and a lack of accountability.

The tussle between Kathmandu and internationals is only part of the story. Politics, in the form of party politics, became an increasingly formalised part of the development projects following the peace deal. In the districts, “all-party mechanisms” became a way for parties to divide up the spoils of the development budget as a way to keep the peace at the local level. Similar mechanisms are being put in place for relief distribution. While in some areas they appear to be functioning reasonably so far, there have been reports from other areas that the distribution of relief has been politicised to the point of endangering lives.

Competition between political parties for resources is rarely pretty, but the sheer amount of money that will come in for the reconstruction could exacerbate the problem. In addition, the political parties, government and large donor agencies may find that there are new streams of funding and influence that are more difficult to coopt. Since the earthquake, it has not been uncommon for very small NGOs to be receiving donations of $100,000 or more. There are significant fundraising efforts with plans for subsequent programming by private citizens and friends of Nepal to support specific areas.

The increased spoils of emergency and development funding could feed into the vicious internecine power struggles

It is difficult to say precisely how all this will alter politics in the affected districts. The increased spoils of emergency and development funding could feed into vicious internecine power struggles, which are a characteristic feature of Nepali politics and parties. It is similarly impossible to predict how the rest of Nepal, not well served at the best of times, will cope with getting even less attention. Until the day before the Great Earthquake, there was an ongoing scandal about the spread of swine flu in Jajarkot, a rugged district in Nepal’s mid-west, where government doctors simply refuse to serve. There is little news coverage of this now.

Unequal distribution of aid, political interventions and poor planning for reconstruction risk further entrenching social and other divisions and increasing the risk of local-level conflict. Unbalanced access to the benefits of development across regional, class and ethnic lines, and partisan mechanisms of redistribution were factors in Nepal’s decade-long civil war. Since 2006, when the conflict ended, some of the solutions proposed to address these inequalities, namely federalism and inclusion of all groups in state institutions and decision-making, have become hotly contested issues in mainstream society and at times threatened to provoke inter-ethnic violence.

The relief effort would have been very difficult for the best-informed, most fleet-footed and well-coordinated national and international effort. Even if the years of international assistance for disaster preparedness and earthquake response in Nepal had paid off – they seem not to have – this would still be hard. Consensus is a dirty word in Nepal, associated with sophistry and hypocrisy in the peace process, but unity and indeed consensus are essential. But this must be a clear-eyed, assessing, open-minded unity. Everyone involved, including internationals, must treat different perspectives constructively, rather than forcing conformity for the sake of comfort, making dissent socially unacceptable, or wanting to prove themselves right no matter what.

Beyond the intense physical stress people are living with, the loss of family, possessions and sources of livelihood, there is the anguish of uncertainty. Many Nepalis are suffering from enormous anxiety: about the next aftershock, unstable mountainsides and the fast approaching monsoon, about where to live and how to rebuild their lives. Nepal’s social fabric has been torn and patched so many times, that everyone needs to try hard to translate the profound fellow-feeling that has been evident since the earthquake into a deeper improvement in political, social and economic relations.

It may be idealistic to hope that dealing with the earthquakes’ aftermath may shake Nepalis and their international partners out of their entrenched patterns of behaviour. But change they must, since this is the only way to speedily deliver help to those who desperately need it, and to minimise the potential for this tragedy to stoke divisiveness and sow the seeds of future conflict.