MIN RATNA BAJRACHARYA
Draft recommendations by a high-level task force for the new constitution, while trying to correct discriminatory provisions in interim constitution and the 2006 Citizenship Act, have made it even more difficult for children and spouses of Nepalis to get citizenship. After public pressure in the Madhes, the interim government in 2007 gave out citizenship certificates to more than 2.5 million people, mostly in the Tarai, but one in six Nepalis is still without citizenship papers.
Maoist lawmaker Jayapuri Gharti admits that every child is entitled to Nepali citizenship in the name of the mother. "But," she adds, "citizenship is also tied to national interest and it cannot be ignored."
Gharti used to be much more forthcoming about the unequivocal rights of Nepalis to gain citizenship if either parent is Nepali. Her caution is now reflected across party lines where there is fear that relaxing citizenship rules will favour Madhesi parties and have demographic and electoral consequences.
Nepal's 2011 census questionnaire has a tick box for third gender, and even allows same-sex marriage, but on granting citizenship to its own citizens the draft of the new constitution is one of the most regressive. In fact, Nepal will be one of only two countries in the world where children can't be citizens by descent unless both parents are nationals.
Paradoxically, while genuine Nepali women, or naturalised children of Nepalis married to foreigners, are denied citizenship many non-Nepali men are caught with fake citizenship certificates or passports issued through bribery and have even been elected to office.
Citizenship provisions in the new constitution also violate various international human rights treaties of which Nepal is a signatory, including the Convention on Elimination of All forms of Discrimination Against Women (CEDAW) and the Convention on the Rights of the Child (CRC).
At a CEDAW review meeting in New York on Tuesday, member Pamela Cross had tough questions on draft provisions in the Nepali constitution: "Why is even the language of the new constitution not able to address the inequality in conferring citizenship to children and spouse?" Nepal's permanent representative, Gyan Chandra Acharya, replied that the constitution was not yet finalised and "due note would be taken".
Other provisions in the draft deny children whose father is unknown automatic citizenship by descent, and put parents who don't have citizenship on the same legal category as those who obtain citizenship by fraud. The provision prohibiting dual nationality also penalises children of parents who have to renounce their foreign passports before they apply for Nepali nationality. But since Nepali citizenship takes so long, children of such parents will be in protracted limbo.
Activists say the citizenship provisions in the new draft constitution reek of paranoia and pseudo-nationalism. Sharada Pokharel of the group, , says: "If a child born out of a foreigner mother, fathered by a Nepali can be entitled to citizenship, why should a child mothered by a Nepali be denied the same privilege?"
Rights experts recommend that two provisions in the proposed draft should be changed immediately to conform to international norms. One is to automatically ensure citizenship by descent to children if either parent is Nepali, and the second to expedite Nepali citizenship to spouses who wish to renounce their previous passport so their children do not suffer prolonged statelessness.
With additional reporting by Anurag Acharya
New draft provisions on citizenship would mean:
1. Children of mixed marriages ineligible for Nepali citizenship unless foreign parent switches nationality
2. Children of Nepali women married to foreigners would have to wait at least 15 years for their children to have Nepali citizenship
3. Children of a Nepali father will be denied citizenship if he doesn't help his wife get Nepali citizenship
4. Children of Nepali parents who don't have citizenship, or are unable to get one can't be citizens
5. Children whose parents' request for citizenship is rejected will remain stateless
6. Children abandoned by their fathers face hurdles in obtaining citizenship
7. Children of a parent in the process of switching to Nepali nationality will be stateless until the process is complete
8. A Nepali woman can't get automatic citizenship for her foreign husband even though a Nepali man can get one for his foreign wife