Rukamanee Maharjan, Nepal
Context:
Nepalese society is struggling to recover from the aftermath of ten-year-long arms-conflict.
The conflict; however, has opened avenues of hopes and aspirations to people from all walks and life.
In this scenario, the present paper aims to seek to analyze the issue of gender dimension, shadowed by the then ongoing conflict, in the present peace and constitution making process; themed: “Women for peace and peace for women.”
Objective:
The ten-year-long conflict has its impact on both female and male; however, the first group (female) was the most vulnerable to then prevailing insecurity, largely due to the existing inconsistency.
In this regard, it is a proven fact that women experience armed conflict in diverse ways; as victims, survivors, leaders and peacemakers whereas they play significant role in institutionalizing peace in the society.
Bearing this on mind, the fundamental objectives of this paper, are as follows:
- to project socio-legal perspective of women in conflict in Nepalese context.
- to give momentum to gender issues specially women issues and bring realistic approach to deal with.
Premise (Methods, Limitation and Scope):
Women’s role in maintaining peace in every society is very crucial. In this context, the role and participation of women must be appreciated, encouraged and acknowledged in every walk of life whether, be it social, cultural, political, economic, private or public.
However, it should not be viewed with the glass of extremism such as only women can substantiate peace.
Thus, the approach of the paper is to analyze and explore about Nepalese scenario of peace process and peace through gender perspectives with the touch of human rights friendly feminist movement and international standard. In this regard, the paper will be specific to entertaining women issues, in specific.
Importantly, the paper presenter has made three assumptions in the paper which serve to define the scope and limits of the paper as follows:
1. Diversity among women: In this paper, the term ‘women’ is considered as one gender and diversity among women such rich women, poor women, professional women, political women and homemaker is not taken into account. So are women with specific ethnicity and religion.
2. Feminist Jurisprudence: Purely radical view may not work in Nepal because of the social, cultural, religious, economic, political values, norms and structure. In this light, the paper presenter will not be making argument about accepting or rejecting one particular view but will be pursuing the appropriate view in accordance with the society and context of Nepal.
3. Women and Peace: In order to define the scope and limits of women and peace, the paper presenter will be substantively dealing with the nexus and intricacies of Nepalese women and the peace process of Nepal along with the de jure and de facto status, negative effect of the conflicts thereof.
Part I: Gender discrimination and conflict
Women are fortunate, enough to have honorific titles and epithets such as ‘Creator (Janani)’, ‘Fair sex’, ‘Better half’.
They have been praised in religious texts and literature. For instance, in Saktisangama Tantra, it is said, “A woman is the creator of the universe and the universe is her form.
A woman is the foundation of the world. She is true form of the body.
A woman is the supreme form of all things. There is no jewel rarer than a woman.
There have never been nor there ever be a destiny equal to that of a woman.
There is no kingdom or destination to be compared with a woman.”[4] At the same time, they have been considered as the weaker sex. Their productive role is undermined and only reproductive role is well recognized.
Thus, gender discrimination is fact, not fable and day to day experience for women, not accidental regardless of the situation of the society whether peace or conflict.
Referring to gender discrimination during the conflict, many argue that violence against women in conflict zones was mere an extension of the gender discrimination already existed pre-conflict era.
However, the conflict affected both groups of women; women in conflict and women having no link with the conflict.
The World Communities were exposed to the following tragic facts after the insurgency started: The world experience of internal war or armed conflict or insurgency has revealed following pathetic facts:
1. During the conflict, sexual violence against women was employed as a tactic of war. For example, up to 500,000 women were raped, many at gunpoint, in Rwanda in 1994.
2. Women were often raped to humiliate the men to whom they are related (the men are often forced to witness the assault).
3. In societies where ethnicity is inherited through the male line, “enemy” women are raped and forced to bear children.
4. Women are kidnapped and used as sexual slaves to service troops, as well as to cook for them and carry their loads from camp to camp. They are purposely infected with HIV.
There are incidents reported that the state agencies were found to be involved in sexual violence against women. In addition to it, women were also used as source of entertainment to the battle troops.
Beside this, after conflict ends, it will be hard for women to go back to traditional roles especially in case of women combatants, organizers, planners, leaders and managers of the war.
Therefore, the reintegration of women back to the society seems to be more problematic. In addition to it, handling war widows, victims and families gravely affected thereby require more serious concerns for institutionalizing durable peace in the society.
In the post conflict situation, women suffer normal kind of discrimination’s and violence along with effects of conflicts so they are considered to be more miserable than ever in this phase.
On the other hand, women can play a role of agent of peace makers and social change.
In many cases, emergence of leadership is also seen. Unlike the traditional roles, during the conflict and post conflict situation in absence of male household head women play the role of decision making as well as play the role of breadwinner in the family and community.
Thus, the conflict has both positive and negative effects, most of people considered it as gravely negative.
Part II: International Frameworks on gender justice in securing peace:
Leaving long history of women movements, feminist movement and human rights friendly feminist movement, international framework can be described in reference to Convention on the Elimination of All Forms of Discrimination against Women (CEDAW), 1979, Beijing platform for Action and its post development, United Nations Security Council Resolution (UNSCR) 1325 and UNSCR 1820.
CEDAW requires state parties to ensure non-discrimination and equality in the spheres such as:
- Participation in the political and public life of a nation
- Nationality
- Education
- Employment
- Health care
- Economic and social life
- Marriage and family relations
In 1995, Beijing Declaration and Platform for Action forwarded 12 points programmes and in March 2010, the Commission on the Status of Women will undertake a fifteen-year review of the implementation of the Beijing Declaration and Platform for Action and the outcomes of the twenty-third special session of the General Assembly. Among those 12 points, women and armed conflict is also one thrust area.
- Women and Poverty
- Education and Training for Women
- Women and Health
- Violence against Women
- Women and Armed Conflict
- Women and Economy
- Women in Power and Decision making
- Institutional Mechanisms for Advancement of Women
- Human Rights of Women
- Women and Media
- Women and Environment
- The Girl Child
In October 2000, the UN Security Council passed Resolution 1325 on Women, Peace and Security, which urges for women’s genuine and equitable participation in peace negotiations in war zones and the aftermath and recently in 2008, resolution 1820 was adopted in order to halt acts of sexual violence against civilians in conflict zones.
The core of Resolution 1325 lies on ensure increased representation of women at all decision-making levels in national, regional and international institutions and mechanisms for the prevention, management, and resolution of conflict by member states along with having drawn the attention of all actors involved, when negotiating and implementing peace agreements, to adopt a gender perspective, including, inter alia:
(a) The special needs of women and girls during repatriation and resettlement and for rehabilitation, reintegration and post-conflict reconstruction.
(b) Measures that support local women’s peace initiatives and indigenous processes for conflict resolution, and that involve women in all of the implementation mechanisms of the peace agreements
(c) Measures that ensure the protection of and respect for human rights of women and girls, particularly as they relate to the constitution, the electoral system, the police and the judiciary.
Another focus of it includes call for all parties to armed conflict to take special measures to protect women and girls from gender-based violence, particularly rape and other forms of sexual abuse, and all other forms of violence in situations of armed conflict.
Similarly, Resolution 1820 demands the immediate and complete cessation by all parties to armed conflict of all acts of sexual violence against civilians with immediate effect and focuses on the note that rape and other forms of sexual violence can constitute a war crime, a crime against humanity, or a constitutive act with respect to genocide along with giving strong stress on the need for the exclusion of sexual violence crimes from amnesty provisions in the context of conflict resolution processes, and placing the responsibility to Member States to comply with their obligations for prosecuting persons responsible for such acts, to ensure that all victims of sexual violence, particularly women and girls, have equal protection under the law and equal access to justice, in order to end impunity for such acts as part of a comprehensive approach to seeking sustainable peace, justice, truth, and national reconciliation.
Thus, the state is major factor in securing gender justice and peace.
Part III: Conflict, Peace Process and Gender: Nepalese scenario
The Arm conflict wagged by the CPN Maoist took place 1996 and 2006 and it is self-proclaimed as people’s war and fight against feudalism, exclusion, structural inequality, discrimination (caste, class, gender, geographical), abuse of state power, poverty, unemployment and failure of governance in Nepal. The conflict formally came to end with the Comprehensive Peace Accord that was signed by political partied in November 2006.
It is important to view that the Comprehensive Peace Accord gave rest to the conflict but no peace to human suffering specially women living with the wounds and scars of the conflict. Point 7.6.1 of Peace Accord reads: “Both sides fully agree to provide special protection to the rights of women and children, to immediately prohibit all types of violence against women and children, including child labour, as well as sexual exploitation and harassment, and not to include or use children who are eighteen years or below. . .”
However, the real situation is crystal clear to all.
News Extracts:
. . . The United Nations in Nepal said it is concerned at how women are suffering from the Maoist insurgency that has flared up again following a four-month ceasefire. “In the past few weeks, women have been beaten to death, shot at, blown up by landmines and abducted across the country,” said Mathew Kahane, UN Resident Representative and Humanitarian Coordinator in Nepal, on the occasion of International Women’s Day.
. . .Januka Shrestha’s husband, who was in the army, was killed in action in Acham. With no other source of income, she is solely dependent on the pension she receives from the army for the survival of herself and her four children. “My youngest daughter has not been able to understand that her father is dead. She is still holding on to the promise that he had made: to come back and buy us a radio,” said teary-eyed Shrestha.
. . . “I had wished for peace when my husband left me home to resume his duty three days before he was killed at Dang Ghorahi and I still wish for peace, as my brother-in-laws too are soldiers and I don’t want any Nepali woman to face my fate. I will never forget his simplicity. I cannot believe myself that he is no more now” says Naramaya Thapa, a 16-year-old who lost her constable husband in Dang Ghorahi.
. . . Soldiers picked up 15-year-old Maina Sunuwar in the morning of February 17, 2004 from her home in Kharelthok VDC-6 in Kavre District. When her friends and relatives went to the Lamidanda barracks the following day and demanded her release, the army denied having arrested her. After weeks of intensive campaigning in April 2004, the army told Maina’s mother Devi that her daughter had been killed. Under pressure from the international community, the army prosecuted three of the perpetrators in a military court. Although convicted, they were sentenced to only a six months in prison which they did not serve as they were judged to have already spent that time while confined to barracks during the time of investigation. . . Maina’s body was exhumed from inside the Panchkal Army Barracks in March 2007.
These extracts are mere examples. There are thousands heart wrenching stories relating to the conflict and many are unreported and unaccounted. The list of missing persons is long and more than that the waiting for justice. As the time is passing, formation of Truth and Reconciliation Commission, Disappearance Commission and Direct relief plan to conflict victims seem to be a tantalizing dream.
Major socio-legal challenges:
Under the shadow of violence, more than 13 thousand people have died and thousands of women have become widows due to the conflict. Many women combatants are in cantonment. Some women are waiting for relief, some for justice and some for decision. In between Nepali Media are once again making news about Maina Sunuwar’s case, women are really having soul touching experiences and recalling century long gender based discrimination, inequality and injustice.
In this light, major challenges yet to be overcome by Nepalese women are:
1. Social chores: As far as the Nepalese context is concerned, women are expected to be exemplary wives and mothers to hold the family together.
So, Nepalese women are having tough time to break through the traditional framework of the society, candidly speaking the cobweb of role difference in family and social structure.
To testify it, the following facts should be taken into the account:
- More than half of population of Nepal is women and the majority of women are illiterate.
- Nepalese women especially village women and girl children are bearing a disproportionate burden of productive work that is usually categorized as unpaid labour.
- Gender based violence is high in Nepal. Many women have been the subject of domestic violence ranging from assault to marital rape.
- The maternal mortality ratio of Nepal is relatively higher than other countries in the world.
2. Discriminating laws:
Practically, the laws and legal institutions were of men, run by men and for men essentially and only exceptionally for women. The legal language marginalized women by saying that “he” includes “she”. An update of the study on discriminatory laws relating to women conducted by FWLD in 2009 identified 103 provisions and 92 schedules in various Acts and regulations which continue to discriminate against women both in letter and in effect. Most of them fall under the spheres in which the state has to ensure non-discrimination and equality under CEDAW such as:
- Nationality
- Property
- Sexual offence
- Health including reproductive health
- Education and Employment
- Marriage and Family
- Legal and Court Proceedings
3. Weak implementation of the laws and grave impunity
The worst tragedy lies in failing to transliterate laws into the practice. Whether it is domestic violence or marital rape, sexual harassment in market place or discrimination in state level, the laws could not deliver justice to the victim- women at large. The cause may be any of procedural lapses, lacunae in laws themselves or political protection and grave impunity. This shows nothing but weak or no implementation of laws and verifies the proclamation -‘laws are dead letters.’ For instance, Domestic Violence (Crime and Punishment) Act, 2009 came into force on April 29, 2009. But very few women are aware about the Act and still no such significant complaints are registered under it. The basic reason is that even today, the society allows such acts in the name of taming disobedient wife and many women still believe that these issues are very personal occurring behind closed doors. Additionally, women are not financially independent which in turns make them dependent on their husband thus unwillingly she is forced to bear all forms of violence by her husband.
4. Short sightedness of the government or the state:
The Interim Constitution establishes women’s right as a fundamental right with the guarantee of equality and freedom from discrimination, and providing reproductive health and reproduction right. In addition to this, with ratifications of various international human rights instruments including CEDAW 1979, the government of Nepal has shown the commitment to provide equal status to among women and men, regardless of any distinctions and discrimination. In practice, the government has never thought the issues of women properly. For instance, the government of Nepal proposed a policy through the budget in which cash prize is to distributed in order to encourage inter-caste marriage with Dalit and marriage with a widow. In the name of social security, the government announced that any person marrying with Dalit will be awarded Rs. 100,000/- and similarly, any person who marries a widow woman, will be awarded with Rs. 50,000/-. (This refers to the violence against women perpetrated in the state level)
More specific issues at the post conflict stage:
Inclusion of women: Inclusion including women and other dispersed groups in all state level mechanisms is a huge debate going on the national level and it expected to make the reformation in the structure of nation at par. The issue of reservation whether 33% or 50% reservation is yet to be decided but the state is more likely to be inclusive in terms of gender in days to come. 33% participation of women in the formation Constituent Assembly made a history in Nepal.
Now, being more specific to the post conflict situation, the following issues relating to inclusion, reintegration and rehabilitation should be considered with due amount of sensitivity and respect. The women can play significant role thereof which makes them agents of peace keeping and social change instead of victims of the conflict.
Additionally, dimensions where women can play the role of social catalysts regardless of their position, status and region:
1. Institutionalization of durable Peace:
2. Meaningful Involvement of women in all pertinent national issues:
3. Women’s involvement in national decision making bodies:
4. Women involvement in assisting War Widows
5. Involvement of women in Reintegration of conflict victims
6. Implementation & monitoring of UNSCR 1325 and UNSCR 1820
New Development in Nepalese context: Critical View
New Development shows that women issues are now getting momentum in national level. The issues of participation and meaningful representation are strongly making headlines. The major credit goes to women organizations.
In this regard, the role of women organizations should be appreciated and acknowledged, if not at least for two reasons: raising of suppressed women voices and making the society and state gender sensitive and responsible for women issues. Similarly, the state or the government repeatedly behaves nicely and makes good statements, high talks and international commitments but practices nothing as such exemplary. And many people argue that is why women activists are getting great job of the hue and cry for women interests. Everything is much debatable in Nepal. Likewise, women activists are criticizing women CA members tagging them as the puppet of the political parties or political whips.
Moreover, in recent X’s rape case once again the role of women CA members became somehow futile and once again, they failed to raise the interest of women substantially.
PART III: Road ahead: Issues, agenda, required change:
Referring to Ms. Kamala Sarup, presently the vice president of International Nepali Literary Society (INLS), Washington D.C.: “. . . Many Nepalese women are living a miserable life, are not educated, do not have access to health facilities and safe drinking water. Nepalese women cannot forget how women with political power does not mean improvement overall in women s political, economic or social status […] Nepalese women must have a right to be involved in all peace processes because displaced women are the real problem in Nepal. If Nepalese women are to play an equal part in security and maintaining peace, they must be empowered politically and economically. In the last general elections held on May 1999, out of 2238 candidates for 205 seats only 135 were women and as many as 113 constituencies did not have any women candidate at all. As a result, the elections to the local bodies held on 1997 and 1998, returned more than 40,000 women representatives. It constitutes almost 20% of all the elected office bearers. They must be empowered at all levels of decision- making, both at the pre-conflict stage as well as at the point of peacekeeping, peace-building, reconciliation and reconstruction.”
At the same time, there are few questions should be critically thought and analyzed: Do women want to be treated like men? Does a equality require different treatment? Are there more important values than equality?
How should the society/state/feminist define and respond to sexual difference?
Should difference be ignored or emphasized and if emphasized, what, if any, is the place of affirmative action to assist the different to achieve functional equality? Wendy Williams, a liberal feminist had argued about two choices: either equality on the basis of similarities between the sexes or special treatment on the basis of sexual difference.
In Nepal, an equal treatment approach only benefits women who meet male norms and not those who engage in female activities, childbearing and rearing most notably.
So, substantive reservation is a good option but should be utilized as policy with long term vision. At the same time, ample of focus should be given to the social engineering part with building from the basic in terms of schooling, socializing and empowering every stage and level or framework of life whether in family, school, community, society and state.
For instance: Reservation policy may increase opportunity behaviour or attitude in women rather than competency and capabilities. On the other hand, if 50% seats are reserved for women, there are many sectors in which the participation wise women could not make 50%.
So, there is serious necessity to think the grass root issues along with populist agendas.
In this light, the right based approach should be adopted and enforced properly in order to improve the socio-legal status of women in Nepal:
- Right to life, liberty and security
- Right to equality (nationality, public accessibility, participation)
- Right to equitability
- Right against torture or other cruel, inhuman or degrading treatment or punishment
- Right against any form of discrimination including Violence against women and sexual abuses
- Right to property
- Right relating to social security
Road Ahead: Bridging Gaps
As Nepal is marching towards new dawn, it is a time to take rights seriously, human dignity profoundly and institutionalizing peace durably. So, with the collaborative and collective efforts of the state, civil society, humanitarian organizations, women organizations and all stakeholders, the following measures should be taken:
- Reform the state institutional mechanisms including Ministry of Women Children and Social Welfare and the National Women’s Commission and develop harmony among state institutional mechanisms, civil society and women organizations.
- Open up the avenues for women involvement in the peace process, participation in national pertinent issues, and participation in decision making bodies with adopting new policies specially recruitments of the government in order to include women in the state mechanism.
- Evaluate government services, policies and programmes so that they bring significant change in the lives of people including the conflict victims and needy women and children.
- Assess Government budget for conflict victims, war widows, women combatants and exerting pressure on government to allocate more resource on girls’ education, marginalized women, Dalit women, women with disabilities, along with gender mainstreaming programmes.
- Map out of gender discriminatory laws, policies and practices of the State and work out for the gender friendly policies with effective implementation
- Act on the grass root issues such as education, livelihood, social and cultural change along with income generation and capacity building programmes so that women will come forward, rather than moving backward. Educate, involve and empower girl children and women at first as a part of social engineering.
- Immediate and long term support and reparation to conflict affected families and women from rehabilitation to reintegration procedure.
Conclusion
What if any daughter of Badi community has to live a life like her own mother in new Nepal? Will her life be in peace? What if the war widow (regardless of which side killed her husband) needs to struggle hither and wither for daily necessities, will it be justifiable? How long should victims of the conflict wait for reparation? Will there ever be formed much awaited ‘National Peace and Rehabilitation Commission’ or ‘High level Truth Reconciliation Commission’? Only time will unfold the wrappings because most of them need strong political will and commitment.
It is agreed that the success of peace process depends upon the drafting of new constitution on time, and thereby securing beneficial policies, enjoyment of rights by people and establishing a harmonious society. For this, effective participation and role of the concerned stakeholders both men and women is essential. Thus, gender justice is inseparable from the peace process. And this is a time where women profoundly yarn for durable peace along with the better dreams of better future.
References:
- Indra Majupuria, Nepalese Women [Status and Role] Gender Approach, Modern Printing Press, Kathmandu, 2007.
- M.D.A. Freemen (ed.), Lloyd’s Introduction to Jurisprudence, Sweet & Maxwell, London, (6th edn.), 1996, pp.1025-1145.
- Sapana Pradhan Malla and Ayasha Sen, “Engendering the Nepalese Constitution: A Women Perspective”, Nepal Bar Council Law Journal 2008, pp. 81-116.
- S.P. Sathe, “Gender, Constitution and the Court”, (Engendering Law: Essays in honor of Lotika Sarkar, A Dhanda and A. Parashar (eds.)), Eastern Book Co., Lucknow, 1999, pp. 117-138.
- Upendra Baxi, “From Human Rights to the Right to be a Woman”, (Engendering Law: Essays in honor of Lotika Sarkar, A Dhanda and A. Parashar (eds.)), Eastern Book Co., Lucknow, 1999, pp. 275-290.
- NEPAL Still Waiting for Justice No End to Impunity in Nepal, Human Rights Watch & Advocacy Forum, October 2009, pp. 29-30.
International Documents
Convention of the Elimination of All Forms of Discrimination against Women, 1979
United Nations Security Council Resolution 1325
United Nations Security Council Resolution 1820