#minorsextrafficking | Submission to the Universal Periodic Review of Nepal

July 2020

Introduction

1. Human Rights Watch submits the following information regarding Nepal’s human rights record since its 2015 Universal Periodic Review (UPR), including efforts towards implementation of recommendations it accepted as well as information about developments in the human rights situation in Nepal not addressed in the 2015 review.[1] This submission is not a complete review of all recommendations accepted by Nepal, nor is it a comprehensive review of Nepal’s protection of human rights. 

2. Nepal has taken some positive steps since 2015, including legislation to ban harmful practices towards women and girls, policies to protect migrant workers, and making torture and enforced disappearance illegal in domestic law.[2] However, the government has often failed to effectively enforce its laws to protect human rights. Nepal has also failed to implement numerous recommendations from its previous review, as detailed below.[3]

 

3. This lack of progress is despite the fact that Nepal’s government stated in a note verbale intended to support Nepal’s candidature to sit on the Human Rights Council (HRC) that it “has taken necessary initiatives with a view to implementing those recommendations and the observations made by the human rights treaty bodies as part of their consideration of the country’s periodic reports.”[4] Nepal is now seeking re-election to the HRC, despite not meeting this commitment. The UPR risks being ineffective if countries can claim success by accepting recommendations without delivering identifiable outcomes.

Failure to Ensure Transitional Justice

4. Nepal took up its HRC  membership on January 1, 2018. During its candidature the government asserted that “Nepal holds the view that all human rights are universal, indivisible, interdependent, interrelated and mutually reinforcing.”[5] Yet Nepali citizens are often denied their rights by a pervasive culture of impunity. This is clearly demonstrated by the failure to provide accountability for numerous, well-documented, and grave abuses committed during the 10-year armed conflict from 1996 to 2006. 

5. A 2015 ruling of Nepal’s Supreme Court, striking down aspects of Nepal’s transitional justice law, including those that would have provided amnesties for gross violations, has yet to be implemented.[6] In 2018, the Nepal government initiated consultations around proposed amendments to the law, but – while an improvement on the existing law – the draft failed to address the many gaps which make it difficult to prosecute international crimes.[7]

6. The government has declined to meaningfully consult with victims, while there has been political interference in the appointment of commissioners to the two transitional justice bodies, the Truth and Reconciliation Commission (TRC) and the Commission on the Investigation of Enforced Disappearances (CIEDP).[8] The two commissions have received over 60,000 complaints.[9] However, both are under-resourced and have completed no investigations five years after they were first established. This is despite the fact that Nepal accepted numerous recommendations related to transitional justice and the application of international legal standards at its last UPR.[10] In March 2020 the CIEDP published a list of 2,506 “disappeared” people.[11]

7. Nepal should:

  • Enable a credible and victim-centric transitional justice process, which upholds international legal standards, including effective accountability and reparations, and allow it to proceed without political interference.
  • Recognize that without a credible justice process, under the principle of universal jurisdiction states may make it possible for their domestic criminal justice systems to investigate and prosecute international crimes such as torture.

Lack of Commitment to International Norms, Failure to Co-operate with Special Procedures

8. In 2015, Nepal accepted recommendations to study the possibility of ratifying the Optional Protocol to the Convention against Torture (OPCAT).[12] In a 2017 amendment to Nepal’s penal code, torture was made a crime in domestic law for the first time.[13] Yet there has been no successful prosecution for torture to date, despite it being widely practiced.

9. Similarly, Nepal noted recommendations to ratify the International Convention for the Protection of All Persons from Enforced Disappearance (ICPPED).[14] In 2017 enforced disappearance was made a crime in Nepali domestic law for the first time.[15]

10. In 2015 Nepal accepted a recommendation to take all necessary measures towards acceding to the Rome Statute.[16]

11. In 2015 Nepal accepted a recommendation to promote cooperation with special procedures, including facilitating visits by mandate holders,[17] but did not accept recommendations to accept requests to visit, or to issue a standing invitation.[18] Since Nepal’s last UPR there have been country visits by the special rapporteur on migrants (2018) and on violence against women (2018), while eight special rapporteurs have issued requests or reminders but received no invitation, including those on truth, minority issues, freedom of religion, and disappearances.[19] Five mandate holders drew the government’s attention to pending visit requests in a communication of March 16, 2020.[20]

12. In 2018, the Committee on the Elimination of Discrimination Against Women recommended that Nepal endorse the Safe Schools Declaration,[21] which aligns with the 2011 decision of Nepal’s council of ministers declaring all schools “zones of peace.”[22]

13. Nepal should:  

  • Ratify international human rights instruments including, but not limited to, OPCAT; ICPPED; and the Rome Statute.
  • Endorse the Safe Schools Declaration.
  • Extend a standing invitation to special procedures mechanisms.

Freedoms of expression and of association

14. In 2015 Nepal accepted recommendations to protect freedom of expression.[23]  However, the Electronic Transactions Act, a law purportedly to prevent online fraud, has been repeatedly used to arrest and detain journalists and members of the public for legitimate online expression.[24]

15. Since the current government took office in 2018, it has presented four pieces of legislation that seriously erode freedom of expression. These include the Information Technology Bill, containing provisions to criminalize broad categories of online expression; and the Media Council and the Mass Communications Bills, which both place broad and ill-defined limitations on the freedom of the press, including criminal sanctions.[25] The Surveillance Powers Bill does not include necessary safeguards.[26]

16. In 2015 Nepal accepted recommendations to strengthen the independence of the National Human Rights Commission (NHRC).[27] However, the government has proposed a law that would undermine the NHRC’s independence by giving the attorney general powers to decide which cases it brings before the courts, and removing its right to maintain regional offices.[28] The Home Ministry is preparing draft legislation that will give the government powers to monitor and control the activity of domestic and international organizations in Nepal.[29] Human rights defenders fear these powers will be used to deny access to external funding for human rights work.

17. Nepal should

  • Stop abusing the Electronic Transactions Act to restrict freedom of expression.
  • Withdraw or amend bills currently before parliament which violate international legal standards on freedom of expression.
  • Repeal laws that make libel a criminal instead of a civil matter.
  • Empower the NHRC in full accordance with the Paris Principles.

Migrant workers

18. Remittances from migrant workers contribute around 30 percent of Nepal’s GDP. However, migrant workers are frequently the victims of abuses including exploitative fees, physical and sexual abuse in destination countries, unsafe working conditions, and non-payment of wages. In 2018 the special rapporteur on the human rights of migrants observed, “In many cases, the situation of migrant workers [from Nepal] amounts to debt bondage, forced labour or human trafficking.”[30]  He noted that the government has adopted a number of welcome reforms,  but that these are undermined by weak enforcement. During the coronavirus pandemic Nepal closed its borders to stranded migrant workers for over two months.[31] The Supreme Court ruled against a policy to charge fares for repatriation, because the government has required contributions to a foreign employment welfare fund to meet such contingencies.[32]

19. The government of Nepal has imposed age restrictions on women migrating for employment, and a ban in 2017 on Nepalis working abroad as domestic workers, which principally affects women. Although these rules are intended to protect Nepali women, they discriminate on the basis of gender and in fact make them more vulnerable, since they are forced to use irregular channels when seeking employment abroad, placing them at heightened risk of trafficking, exploitation and abuse. They also place an unreasonable restriction on their rights to travel and work.

20. Nepal should:

  • Introduce and enforce laws to end all recruitment charges and similar fees paid by workers, and to crack down on abuses by recruitment agents and money lenders.
  • End discriminatory provisions affecting women’s employment abroad including lifting the ban on domestic workers, and instead strengthen measures for their protection including by providing effective assistance to workers in need in all destination countries.
  • Accede to the International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families and ratify the International Labour Organization (ILO) Domestic Workers Convention.
  • Implement in full the recommendations of the special rapporteur for the human rights of migrants.

The rights of women and girls

21. In 2015, Nepal accepted recommendations to address sexual and gender-based violence, through reform and strict enforcement of the law, and awareness-raising campaigns.[33] Since then, there has been an increase in reports of rape, including of children. There have also been cases where victims were killed after they were raped. Often the police refuse to register cases or to pursue a credible investigation, particularly if victims belong to Dalit or indigenous communities.[34] The statute of limitations for rape cases has been extended from 35 days to one year, but this remains much too short and fosters impunity for the crime of rape.

22. While some victims of conflict-era abuses have received limited compensation, victims of sexual violence have been excluded from these schemes. To date there has been no justice or accountability for conflict-era sexual violence.

23. Due to reservations in the electoral system, the representation of women in elected office has improved, but women are consistently relegated to subordinate positions. From the federal to the local level there is a frequent failure to consult women, especially Dalit women. Formal inclusion of women does not amount to women’s actual participation in political decision making.

24. In 2015, Nepal accepted recommendations to address discriminatory provisions in the constitution which limit women’s ability to transmit citizenship to their children on the same basis as men.[35] Articles 11 (3), 11 (5) and 11 (7) particularly victimize the children of single mothers, the children of women married to foreigners, and the children of migrant workers who are born abroad, who are at risk of statelessness and denial of access to basic services. Notwithstanding commitments made at the previous UPR, the government has resisted demands to reform these constitutional provisions or implement Supreme Court rulings.

25. Nepali women do not enjoy equal rights with regard to marriage and divorce. As found by the Committee on the Elimination of Discrimination Against Women, contradictory provisions in the Civil Code, although prohibiting bigamy, provide that when a woman bears a child she is automatically married to the child’s father. Further, the committee found that because marriage registration is not mandatory, women in unregistered or customary marriages are impeded from claiming their legal rights.[36]

26. In 2015 Nepal accepted recommendations on ending child marriage.[37] Although illegal under domestic law, child marriage remains widespread, and government pledges to end it have not led to effective action.[38] Women and girls have insufficient access to high-quality sexual and reproductive health-care and health education. There are lower school enrolment and higher drop-out rates among girls from poor households, girls living in remote areas, girls belonging to marginalized social groups, and girls with disabilities.[39]

27. In 2015 Nepal accepted a recommendation to strengthen the National Women’s Commission.[40] However, no commissioners have been appointed.  Insufficient resources and a limited mandate prevent the commission from issuing rulings that are legally binding. There is no comprehensive anti-discrimination legislation that includes a prohibition of discrimination against women, including sexual harassment in places of work and education.

 28. Nepal should:

  • Abolish the statute of limitations for rape and improve police performance in cases involving gender-based violence, including through training, and disciplinary action against officers who decline to pursue criminal investigations.
  • Accede to the Palermo Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children.
  • Adopt comprehensive anti-discrimination legislation that includes a definition and prohibition of discrimination against women and guarantees effective remedies for victims.
  • Ratify ILO Convention 190 against violence and harassment in the workplace.
  • Amend or repeal all discriminatory constitutional provisions which are contradictory to article 9 (2) of the CEDAW, to guarantee that Nepali women may transmit their nationality to their children under the same conditions as Nepali men.
  • Repeal all legal provisions that discriminate against women and girls, particularly in the areas of nationality, distribution of marital property upon divorce, and access to employment abroad.
  • Move forward in fully implementing a national action plan to end child marriage, with the goal of ending all child marriage by 2030 as per the SDGs.
     

Sexual Orientation, Gender Identity, and Sex Characteristics

29. Nepal has a record of relatively progressive legal protections for LGBTI people, including landmark Supreme Court rulings. However, these rulings are not always implemented by officials. Despite the government conducting a Supreme Court-mandated study on providing equal marriage rights for same-sex couples, marriage equality has not yet been achieved. At the last UPR Nepal accepted recommendations to legislate to punish discrimination on the basis of sexual orientation, gender identity, and sex characteristics, and to ensure equality, but those commitments have not been fully implemented.[41] 

30. Nepal should

  • Legally recognize same-sex relationships.
  • Allow transgender and intersex people to change their name and gender on citizenship and other official documents through a clear, transparent, and accessible procedure that is based on self-identification and not any medical intervention.
  • Fully implement recommendations related to LGBTI rights accepted at Nepal’s previous UPR.

Caste discrimination and minority rights

31. In 2015 Nepal accepted recommendations to meaningfully address caste and ethnic discrimination.[42] However, caste and ethnic minorities remain more vulnerable than others to abuses including rape, murder,[43] excessive use of force by police,[44] and torture in police custody.[45] Survivors of natural disasters, such as seasonal flooding,[46] who disproportionately belong to minority communities, are often not provided with adequate relief, such as basic shelter. Four years after the 2015 earthquake, many survivors still lived in temporary shelter.[47] They disproportionately belonged to marginalized groups.

28. Five years since they were established, the National Dalit Commission, National Inclusion Commission, Madhesi Commission, Tharu Commission, Muslim Commission and Indigenous Nationalities Commission either no have commissioners or less than a full set of commissioners. All have weak mandates. The government’s Public Service Commission has sought to undermine constitutional guarantees of quotas for minority communities in civil service jobs.[48]

29. In 2015, police shot dead around 50 protesters and other members of the public belonging to the marginalized Madhesi community during protests in the south of the country.[49] Despite promises to do so, the government has failed to publish the report of its own commission of enquiry into these events, chaired by former Supreme Court judge  Girish Chandra Lal. While protesters belonging to minority groups were prosecuted, the authorities failed to hold to account security forces members responsible for violations.

30. In 2018 the Committee on the Elimination of Racial Discrimination found that the “Caste-based Discrimination and Untouchability (Offence and Punishment) Act (2011) does not prohibit discrimination based on colour or national or ethnic origin.” It also found that caste segregation continues.[50]  
 

 31. Nepal should

  • Ensure that all criminal complaints of race-based discrimination are formally recorded by law enforcement, and that officials who fail to do so are sanctioned.
  • Monitor, investigate and prosecute incidents of violence linked to inter-caste marriage and caste segregation, and offer protection and remedies to victims.
  • Enforce compulsory, free and good quality primary education throughout the country, and actively work to ensure attendance of children from marginalized communities.
  • Strengthen measures to achieve full inclusion of children from Dalit and other marginalized communities at all levels of education and in teaching positions.
  • Empower the commissions representing marginalized groups and appoint commissioners.
  • Ensure that official data captures correlations between caste and ethnicity and inequality.
  • Meaningfully implement and strengthen policies to improve the inclusion of marginalized group in the public sector.
     

Impunity

32. In 2015 Nepal accepted a recommendation to end the impunity of law enforcement authorities,[51] but noted a recommendation to establish an independent complaints commission capable of investigating and prosecuting complaints against the security forces.[52]  According to leaked portions of the report, the Lal Commission made recommendations for security sector reform which have neither been made public nor implemented.

32. No security officer has been held accountable for serious abuses including extra-judicial killings and torture.

 33. Nepal should

  • Publish the Lal Commission report.
  • Establish an independent complaints commission capable of investigating and prosecuting complaints against the security forces.
  • Ensure that where there is sufficient evidence, members of the police face trial for grave human rights abuses.
[2] For example, the Safe Motherhood and Reproductive Health Rights Act (2018), the Witchcraft-related Accusation (Crime and Punishment) Act (2015), The National Penal Code, chap. 10, article 167, and chap. 16, article 206 (amended in 2017).
[4] “Note verbale dated 16 August 2017 from the Permanent Mission of Nepal to the United Nations addressed to the President of the General Assembly”, August 17, 2017, A/72/347, available at https://undocs.org/en/A/72/347 (accessed March 20, 2020).
[10] Paragraphs 122.53, 122.61, 122.62, 122.64, 123.38, 121.27, 121.26, 121.28, 122.5, 122.4, 122.63
[12] Paragraphs 123.2, 123.1
[13] The National Penal Code, chap. 10, article 167 (amended in 2017).
[14] Paragraphs 123.10, 123.11
[15] The National Penal Code, chap. 16, article 206 (amended in 2017).
[18] Paragraphs 123.27, 124.9, 124.10, 124.11, 124.12, 124.13, 124.14, 123.26
[20] Mandates of the Special Rapporteur on the promotion of truth, justice, reparation and guarantees of non-recurrence; the Working Group on Enforced or Involuntary Disappearances; the Special Rapporteur on extrajudicial, summary or arbitrary executions; the Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment; and the Special Rapporteur on violence against women, its causes and consequences, AL NPL 1/2020, March 16, 2020, https://spcommreports.ohchr.org/TMResultsBase/DownLoadPublicCommunicationFile?gId=25109
[21] Concluding observations on the sixth periodic report of Nepal, CEDAW/C/NPL/CO/6, November 9, 2018, para. 33.
[23] Paragraphs 122.72, 122.73
[24] Meenakshi Ganguly (Human Rights Watch), Disparaging Film Review Can Mean Jail Time in Nepal, June 14, 2019, https://www.hrw.org/news/2019/06/14/disparaging-film-review-can-mean-jail-time-nepal.
[25] Human Rights Watch, Nepal: Amend Laws Undermining Free Expression, September 3, 2019, https://www.hrw.org/news/2019/09/03/nepal-amend-laws-undermining-free-expression
[26] Human Rights Watch, Nepal: Amend Intrusive Intelligence Bill, May 29, 2020, https://www.hrw.org/news/2020/05/29/nepal-amend-intrusive-intelligence-bill-0
[27] Paragraphs 121.10, 121.11, 121.13, 122.15, 122.16, 121.12
[28] Meenakshi Ganguly (Human Rights Watch), Nepal Should Not Backslide on Human Rights, May 7, 2019, https://www.hrw.org/news/2019/05/07/nepal-should-not-backslide-human-rights
[29] Human Rights Watch, Nepal: New NGO Law Should Protect Rights, November 14, 2019, https://www.hrw.org/news/2019/11/14/nepal-new-ngo-law-should-protect-rights
[33] Paragraphs 121.21, 122.32, 122.6, 122.7, 122.11, 121.25, 122.12, 122.13, 122.23, 122.45, 122.46, 122.8, 122.9, 122.10, 122.57, 122.58, 122.59, 123.24
[34] Supriya Manandar, “Why does rape have a low conviction rate in Nepal?”, The Record, March 28, 2018, https://www.recordnepal.com/wire/half-a-million-women-in-nepal-have-experienced-sexual-violence/ (accessed March 20, 2020). “Mostly Dalits among murdered after rape”, The Rising Nepal, March 12, 2019, http://therisingnepal.org.np/news/29675 (accessed March 20, 2020). Sarita Pariyar, “From tika to ashes”, The Kathmandu Post, January 25, 2019, https://kathmandupost.com/opinion/2019/01/25/from-tika-to-ashes (accessed March 20, 2020).
[35] Paragraphs 122.2, 122.79, 122.67, 122.68, 122.69
[37] Paragraphs 121.20, 122.47
[38] Our Time to Sing and Play: child marriage in Nepal, Human Rights Watch, September 8, 2016, https://www.hrw.org/sites/default/files/report_pdf/nepal0816_web.pdf
[41] Paragraphs 122.42, 121.16, 122.43, 123.30
[42] Paragraphs 122.40, 121.9, 122.36, 122.33, 122.35, 122.39, 122.41, 122.37
[49] Human Rights Watch, Like We Are Not Nepali, Protest and Police Crackdown in the Terai Region of Nepal, October 16, 2015, https://www.hrw.org/report/2015/10/16/we-are-not-nepali/protest-and-police-crackdown-terai-region-nepal

Source link