A constitutional mess

After nearly nine years, Nepal finally has a new constitution. It keeps the power in the hands of hill Brahmin men and renders women second-class citizens. At least 40 people have already died in riots. Meanwhile, India’s pathetic response has provoked a new round of Kathmandu’s favourite pastime: Blame Everything On India. 

Not that I didn’t have my presentiments. Last winter, I happened to have lunch with a lawyer working at Nepal’s Supreme Court. When I asked him about the constitution-writing process, his face darkened. What transpired was causing him serious worries. And it was not just the thorniest issue of agreeing on the number of federal provinces to be established and demarcating their territories. Many of the progressive provisions on gender equality, secularism and the inclusion of marginalised groups from the Interim Constitution of 2007 were at stake, he told me. Important figures in the government saw these articles as the result of the meddling of international organisations and Western embassies in Nepal’s internal affairs that had to be revoked. But, the lawyer concluded, at the moment these forces were not strong enough to push their agenda through.

Three months later, the earthquakes hit. Afterwards things were different. On the one hand, the government was under fierce attack for the way it handled the crisis; so finally finishing the Constitution seemed the only way of regaining legitimacy. On the other hand, government politicians imagined that under the given circumstances it would be difficult for their adversaries to agitate the masses against a swiftly promulgated constitution. Speed kills, as Bill Clinton would have said.

Most importantly, the Maoist leadership completely changed their strategy. The carrot of their inclusion in a ‘government of national unity’ in the face of the disaster and the on-going constitutional crisis enticed them to forsake their long-held demand for federal provinces that would privilege the non-Hindu groups. Apparently, Maoist chairman Pushpa Kamal Dahal claimed that in order to save the core of the post-civil war progressive achievements, he had to give in to a federal structure that clearly goes against the party’s earlier commitments.

Indeed, not all is lost. One third of all assembly seats on the federal, provincial and local level will be reserved for women and there will be provisions for the proportional representation of Dalit, Janajati (Adivasi) and other marginalised groups. Concerning the rights of sexual minorities, it is probably the most progressive constitution in Asia. And it declares Nepal to be a secular state. With rallies by the Hindu right gathering huge crowds, for a long time this remained unclear. At the same time, children of foreign fathers will only be able to obtain citizenship by naturalisation. Subsequently, they will be barred from the state’s highest offices that will be reserved for citizens by decent. Full citizenship is handed down through semen only. Or as the Nepali adage goes: ‘Women have no caste.’

And then, of course, there is the issue of the demarcation of the federal provinces. By carefully gerrymandering their borders, the three major parties have prevented the creation of the large plains provinces the Madhesi and Tharu movements had demanded. This is the most obvious reason why people in the southern plains are violently revolting. With many cross-border marriages, however, the citizenship issue is also a very important cause for the bandh proving the long-held feeling of inferiority widespread in the plains.

Also for those who drafted the constitution, these two issues are closely related. Both are part of their strategy to maintain power and their view of the Madhesi as the fifth column of India. But while the federalism issue is the logical product of this short-sighted rationale, the citizenship issue shows a deep-seated, irrational, misogynist and xenophobic fear: What if the children of Indian fathers will rule the country in the future?

No surprise then that the clumsy and belated interventions of the Indian government have caused quite a ruckus in Kathmandu. The short-lived love affair with Narendra Modi seems over. But it is old news: India’s statements are considered blatant attacks on Nepal’s sovereignty, Foreign Secretary Jaishankar is compared to Viceroy Curzon and senior leaders outpace each other in telling him ‘to mind his own business.’ At the same time, hours are spent on the exegesis of the Indian announcements while the Nepalese ambassador to New Delhi contends: ‘Our constitution is better than yours.’

Granted, the Government of India has had an influence on Nepal’s politics and economy that vastly exceeds international conventions. But this holds also true for India’s continuous support for Nepal’s various democratic movements since the 1950s. Undoubtedly, the condescending attitude India has shown for decades, especially in respect to water treaties and Nepal’s attempts at establishing closer ties with China, warrants strong suspicions about the neighbour’s agenda.

The problem with the conspiracy-fuelled Anti-Indian paranoia prevalent among Kathmandu’s elites is that it deliberately forgets the long history of Indian solidarity, from the revolution of 1951 to the 2015 earthquakes. It imagines the Indian leadership’s main raison d’être to be the domination of Nepal and simplifies the complex melange of Indian interests. To me, the BJP’s insistence on an inclusive constitution is a pragmatic assessment, not a commitment: They want Nepal to finally be a stable neighbour open for business (most importantly hydropower production) and fear that the Madhesh riots will spread into Bihar, potentially disrupting the elections.

Beyond that, many within ‘Dilli Durbar’ felt that the major parties in Kathmandu were more complaisant towards China and the Europeans. Finally, the Hindutva wing of the BJP is disgruntled because it failed in its attempt to make Nepal a Hindu state again.

In a nutshell, the Indian ‘policy failure’ stems from the fact that the Government of India is not the monolithic hegemon preoccupied with ‘expansionism’ Kathmandu’s politicians and media want us to believe. At least, the current events give us ample evidence that the amount of Indian influence in Kathmandu is vastly exaggerated. Since its establishment in 1770, Nepal has been ‘a yam between two boulders’ and it’s time Kathmandu’s elites acknowledge that this will not end anytime soon. Instead of nationalistic self-pity they could also start realising that there are worse positions than to be stuck between the two most promising national economies of the planet.

And then they could finally develop a form of strategic foreign policy. For this, the children of Indian and Chinese fathers (and mothers, of course) might actually prove very helpful.

The author is an anthropologist working on infrastructures and their absence in Nepal. Currently he is tending his parents’ cows in rural Austria.