In a letter sent to the Government of Nepal, UN Special Rapporteur on the rights of Indigenous Peoples, James Anaya has drawn attention to the information received concerning ongoing barriers to the effective protection of indigenous peoples’ rights in Nepal.
Following up on the recommendations made in his 2009 report on the situation of indigenous peoples in Nepal and in his subsequent communication in 2010, the Special Rapporteur related particular groups collectively known as Adivasi Janajati as indigenous peoples that are socially and culturally distinct from the dominant Hindu and Nepali-speaking population and have faced situations of social and political marginalization and lack of recognition of their distinct cultures, social and political institutions and their traditional lands in ways similar to other indigenous peoples worldwide.
Noting the recent political situation in Nepal following the dissolution of he Constituent Assembly in May 2012 and the call for elections for new constitutional drafting process in April 2013, the Special Rapporteur conveyed concerns expressed by indigenous peoples’ representatives that the progress made by indigenous members of the former Constituent Assembly could be lost and their demand to ensure indigenous peoples’ participation in new process through an established consultative mechanism.
“… the indigenous members of the Constituent Assembly were not chosen directly by indigenous peoples themselves, but rather by political parties. Nevertheless, …[they] were able to form their own political caucus and successfully built alliances within the Assembly in order to promote indigenous demands for self-determination, autonomy, and land and natural resource rights within a framework of identity-based federalism,” the Special Rapporteur writes. “… one of the thematic committees within the Constituent Assembly, the Committee on State Restructuring and Power Redistribution, presented a proposal for the division of Nepal into 14 states and 23 ‘autonomous regions’ or ‘special protected areas’.”
“However, the Constituent Assembly was dissolved in May 2012, reportedly due to disagreements regarding the reorganization of the Nepali state under a federal structure defined along ethnic lines. Despite having obtained the necessary support within the Assembly, members of the dominant Brahmin and Chhetri groups allegedly sought to repeal the 14-state proposal favored by indigenous, Madhesi and Dalit members of the Assembly,” he adds.
The Special Rapporteur has thus requested information from the Government whether such consultative mechanism would be provided in the new process for constitution drafting and measures would be taken to ensure adequate representation of indigenous peoples in the new process including through their traditional selection processes. He has also sought knowledge of the steps taken to ensure achievements made in former Constituent Assembly, in terms of recognition of cultural, linguistic, autonomy, self-determination and other rights, are maintained in future process.
Further, the Special Rapporteur noted the incidents of violence and alleged criminal persecution of indigenous leaders in Nepal due to disagreements over federal structure. Referring to reported attacks by members of Brahmin-Chhetri caste groups and excessive use of force by police against indigenous Tharu people, including destruction of their cultural museum, in May 2012 in Kawasoti and Dhangadhi over the issue of Undivided Far West, he has requested information about measures taken to investigate and sanction those responsible for the alleged incidents and compensate the victims.
The Special Rapporteur also wrote about the alleged charges of committing ‘heinous crimes against the integrity of the state’ against group of 17 members of Pallo Kirant Limbuwan Rastriya Manch (PKLRM), an indigenous rights organization representing indigenous peoples in Limbuwan region of eastern Nepal, in March 2009 when they were holding meeting with indigenous peoples in the region about constitution drafting process. Subsequently, a warrant for the arrest of ten PKLRM member was issued to which concerned district court rendered decision against them in their absence and without sufficient evidence. As a result, they reportedly fled Nepal given their previous experience of detention and torture while their family members have allegedly been harassed and persecuted to disclose their whereabouts. To this, the Special Rapporteur has sought information about efforts undertaken to ensure that the charges against the ten PKLRM members comport with due process.
In addition, the Special Rapporteur noted that members of the high caste Brahmin and Chhetri groups have actively sought recognition as indigenous peoples and that such recognition seems likely since relevant Government ministries have given initial consideration to these demands. He informed of being pointed out that National Foundation of Indigenous Nationalities Act 2002 should be reformed or implemented to ensure its criteria of identification of indigenous peoples is consistent with international human rights instruments.
Recalling his earlier recommendation for a comprehensive legal and policy reform, in consultation with indigenous peoples, in order to advance implementation of International Labour Organisation Convention No. 169 and the UN Declaration on the Rights of Indigenous Peoples, the Special Rapporteur wrote of information received about various domestic laws still requiring reform. Those include the Act relating to the Election of Constituent Assembly Members 2007 (to guarantee indigenous peoples’ right to select representatives as per their own traditional decision-making practices and provide more direct, full and proportional representation of indigenous peoples), National Parks and Wildlife Conservation Act 1973 and the Buffer Zone Management Rule and Regulations 1996 (to ensure greater participation of indigenous peoples in management of parks and for continued access to their traditional natural resources as well as to provide indigenous peoples just and equitable share of financial and other benefits from th ose areas) and Muluki Ain (to suspend Hindu-based prohibition on cow slaughter that discriminates against indigenous peoples’ cultures).
The Special Rapporteur has thus requested information about any measure taken to consult indigenous peoples regarding reform of those laws. He had sent the letter on 15 October 2012 and sought a response from the Government within 60 days.
Any response from Government of Nepal to the letter has not been learnt yet.
Letter from the Special Rapporteur here