1. The measures required to safeguard the rights of the Adivasi Janajati entail reforms in the legal and administrative apparatus of the state that are far reaching, and that are best achieved with constitutional grounding. The new constitution of Nepal should therefore incorporate the rights of indigenous peoples and related protections in a manner consistent with the basic principles articulated in ILO Convention 169 and the Declaration on the Rights of Indigenous Peoples. Relevant provisions of the Convention and Declaration should also be duly taken into account in the constitution- making process itself, in particular provisions relating to rights of consultation and participation.
2. Government actors and indigenous representatives alike agree that the Adivasi Janajati have an important stake in the development of Nepal’s new constitution. But as the constitution-making process has unfolded, indigenous peoples’ representation and participation in the Constituent Assembly, which is charged with drafting the new constitution, has become a subject of significant controversy. The Interim Constitution provided for a mixed proportional system of representation in the Assembly. Through this mixed electoral system, 335 of the 601 members of the Assembly are chosen in a system of proportional representation, which applies to women, Dalits, indigenous communities, Madhesis and other unrepresented groups, from a list of candidates drawn up by political parties. The system allowed for 218 seats in the Assembly to go to members of indigenous communities, which demonstrates significant progress in Nepal for improving political representation by indigenous peoples and other historically marginalized groups.
3. However, many indigenous leaders, including several members of the Constituent Assembly, uniformly complained of the inadequacy of indigenous representation and participation in the Assembly. Of particular concern to indigenous leaders is the fact that the indigenous Assembly members were elected from among candidates chosen by political parties, which are dominated by non- indigenous actors, and as a result they are subject to the political parties’ interests and voting discipline. Also highlighted to the Special Rapporteur was that indigenous women are dramatically under-represented in the Constituent Assembly. Additionally, it was reported that no separate Assembly committee had been established to specifically address indigenous issues, such as those established in relation to other marginalized groups, including women and Dalits, further impeding indigenous representatives from drawing attention to their concerns. Yet another major barrier to advancing indigenous interests in the constitution-making process, in practical terms given political realities, is the two-thirds majority requirement of the Interim Constitution (Art.70) for having proposals adopted into constitutional text.
4. Once again, the Special Rapporteur commends Nepal for embarking on a constitution-making process that promises to move the country in an unprecedented transition to democracy, and for its initiatives to include indigenous peoples and their concerns in that process. However, the Special Rapporteur is of the view that the indigenous representation and participation in the Constituent Assembly must be improved or supplemented by other means of indigenous participation in the constitution-making process. According to Article 6(1) of Convention 169, “governments shall …consult the peoples concerned, through appropriate procedures and in particular through their representative institution, whenever consideration is being given to legislative or administrative measures which may affect them directly.” The procedures in place for indigenous participation in the constitution-making process are not fully appropriate given the limitations identified above, nor are indigenous peoples being allowed to participate through their own representative institutions. Further, the means provided for indigenous participation in the constitution-making process do not appear to be devised with the “objective of achieving agreement or consent” on the part of indigenous peoples to the constitutional provisions that directly affect their rights, as required by Article 6(2) of the Convention and, in even stronger terms, Article 19 of the United Nations Declaration.
5. In order for Nepal to fall into compliance with the consultation provisions of Convention 169 and the Declaration as it develops a new constitution, indigenous peoples must be afforded greater means of participation in the process than currently available to them. Unless the existing procedures and mechanisms of the Constitutional Assembly are significantly altered, separate consultations on the constitution should be carried out with the Adivasi Janajati through their own representative institutions, in appropriate forums that are supplemental to the Constituent Assembly.
