Nepal citizenship law ‘biased’ against women

Kathmandu, Nepal – Shivani Kharel from Nepal is worried about her future. Instead of attending college, she has been fighting a long battle to be recognised as a citizen of the Himalayan nation.

The 20-year-old, whose mother was abandoned by her father when she was five, has been making the rounds of government offices for the past four years to get a “citizenship certificate” that is required to gain admission to any college or university.

“I have completed high school but I am sitting idle. I am the only person who can earn money in my family and without further education, what are my chances?” she told Al Jazeera.

In a step that will further dampen chances of thousands like her getting a Nepali citizenship, a draft provision in the Constituent Assembly, the body writing Nepal’s new constitution, said that both parents have to be Nepalese for a child to be a citizen.

The Citizenship Act of 2006, the current law, allows women to pass on their citizenship to their offspring. 

But those legal achievements could be in danger of being reversed, with rights activists terming the new law regressive, adding that the already serious problem of “statelessness” among Nepalis could worsen.

‘Flawed’ law

Nepal could be among 27 other countries, including Libya, UAE, Qatar, and Sudan, that prevent a matrilineal path to citizenship.

“The impact of this law affects in largest part women, children born out of wedlock, or children of refugee fathers unable to secure the most basic documents needed to assert their fundamental rights,” Tejshree Thapa, a researcher at Human Rights Watch, told Al Jazeera.

“The flawed citizenship law makes it particularly difficult for women to secure legal proof of citizenship, especially when male family members refuse to assist them or are unavailable to do so,” she added.

Every child who wants to get citizenship has to show his or her father’s citizenship, and in a country where most marriages and births are not registered, the problem becomes more convoluted. Women have to fight protracted legal battles and often force paternity tests on the men just to give their children citizenship.

Despite the clear provision, children of single mothers have found it next to impossible to inherit citizenship due to conservatism among officials. Shivani said that her mother was humiliated by the officer when she approached him to obtain citizenship papers.

“She told him everything and he asked her why she hadn’t thought of all this before sleeping with that man, before giving birth to her children. Didn’t you think something like this might happen?” she said.

Precedent

Without a citizenship certificate, Shivani’s rights in Nepal are limited, and she is not alone. According to Forum for Women, Law and Development (FWLD), there are more than four million others who have been denied citizenship on similar legal grounds.

Sapana Pradhan Malla, a human rights lawyer and a former member of the Constituent Assembly, told Al Jazeera that the main battle has been with bureaucrats unwilling to give out citizenship papers.

“Despite constitutional provisions and the Citizenship Act, activists have had to go to court to get citizenship for children through their mothers,” she said.

In 2011, FWLD won a landmark verdict from the Supreme Court. The court granted Sabina Dhami, a young girl whose father could not be identified, Nepali citizenship. While the case should have set a precedent for other similar cases, the government has not been responsive.

“So the challenge is not only the confrontation between women’s rights and the state agencies, but also one state organ’s decision not being respected by the other state organ,” Malla said.

Al Jazeera met with Basant Raj Gautam, the Chief District Officer of Kathmandu, and asked him why his office has not been taking the lead from the court order.

“The Supreme Court has given that verdict to the person who asked for justice and at the same time, the Supreme Court normally gives directives to the government to amend the laws or to bring a new law to solve that kind of issues,” he said.

“Just because a person got citizenship based on that decision doesn’t mean everyone in that category should,” he said.

Eligibility clauses

The Nepali government has always cited the open border with India to justify their policy, but at the same time it allows foreign women or stateless women married to Nepali men to immediately get Nepali citizenship.

Even under the current provision, children of Nepali women who marry foreign men cannot get Nepali citizenship by descent.

Neeta Pokhrel, an engineer married to a foreign national, described her encounter with a bureaucrat who said: “You didn’t think our Nepali men were good enough.” But as Pokhrel points out, her child is at least eligible for a different nationality.

“Nepal is obliged under international law to provide citizenship through one of two ways: through parent or through land of birth,” Thapa of HRW said.

But government officials say that a person has to comply with some of the laws and clauses, that include 15 years of residency, fluent language skills, and “most importantly the person must have contributed to the country”.

A national cricket player whose mother is Nepali and father an Indian, recently got a citizenship granted on these grounds. Most other requests have been recommended to the Home Ministry, but have not been responded to.

“We still believe and practise patriarchal society in even our basic laws. They have been amended but we have many laws which are discriminatory. That unequal mentality is still there in our laws and citizenship law is not an exception,” Gautam, the government official, said.

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