OFFICE OF THE UNITED NATIONS
HIGH COMMISSIONER FOR HUMAN RIGHTS
SPECIAL PROCEDURES OF THE HUMAN RIGHTS COUNCIL
United Nations Special Rapporteur on Violence against women, its causes and consequences, Dubravka Šimonović
Official visit to Nepal 19 – 29 November 2018
PRELIMINARY OBSERVATIONS AND RECOMMENDATIONS
Nepal should strengthen access to justice and ensure the elimination of gender-based violence and harmful practices against women
I am addressing you today at the conclusion of my official visit to Nepal, which I undertook at the invitation of the Government from 19 to 29 November 2018. My objective during this visit has been to evaluate the situation of violence against women in the country, and the following statement contains my preliminary findings and recommendations. I will present my final report, to the United Nations Human Rights Council in June 2019.
I would like to begin by warmly thanking the Government of Nepal for its excellent cooperation both before and during my visit. During my stay I met with various Government representatives from the Ministry of Foreign Affairs, Minister Tham Maya Thapa from the Ministry of Women, Children and Senior Citizens, the Ministry of Law, Justice and Parliamentary Affairs, the Ministry of Health, the Ministry of Finance, the Ministry of Land Management, Cooperatives and Poverty Alleviation and the Ministry of Home Affairs. I also met with the Attorney General, and the Joint Secretary, at the Office of the Prime Minister and Council of Ministers, as well as a Supreme Court Judge, Sapana Pradhan Malla-. I had the opportunity to meet with representatives of statutory human rights agencies including the National Human Rights Commission and the National Women’s Commission, along with representatives from international organizations, donor agencies and a broad range of civil society organizations. In addition, I met with Government representatives and relevant stakeholders in Dhangadi (Province 5) and Nepalgunj (Province 7).
During my visit, I went to Nakkhu correctional facility, as well as the women’s section of the Central Prison in Kathmandu. I also visited shelters for women fleeing violence in various locations.
I am very grateful to the Office of the United Nations Resident Coordinator, as well as UN Women, UNDP, and other UN agencies for their support both before and during the visit. I would like to offer my sincere gratitude to everyone who took the time to meet with me as their contributions have been invaluable to the success of my visit. I am especially grateful to all those women and girls who placed their trust and hope in me by sharing their personal, and often traumatic, experiences of violence and gender-based discrimination.
I humbly believe that the information I have gathered has allowed me to gain an insight into the reality faced by many women and girls in the country, as well as some of the systematic problems they face when it comes to gender-based violence against women and their right to live a life free from violence and gender inequality.
I will confine myself today to present some preliminary findings and recommendations that could be
implemented in the short term, while the full report I will submit to the Human Rights Council in June 2019 will provide a more in-depth analysis of the manifestations, causes and consequences of violence against women and girls, and will include action-orientated recommendations in line with relevant UN human rights instruments and standards.
Ladies and gentlemen,
I would like to start by congratulating Nepal on its role as an active member of the UN Human Rights Council, and on providing the CEDAW Committee with an eminent expert, Ms. Bandana Rana, who is now contributing to the progressive work of the Committee in promoting women’s rights.
I also note as positive increased political participation of women and the appointment of the country’s first female President, Bidya Devi Bhandari.
I commend Nepal on the adoption of a new Constitution in 2015 and on the substantive legal reform during the past three years aimed at harmonizing its national legal system with the new constitutional provisions and international commitments to human rights, including women’s rights.
The legal reform process has resulted in the establishment of a robust legal framework on women’s human rights, however the process is still ongoing with many new laws under preparation, while the continued existence of some legislation and harmful practices that discriminate against women and lead to gender based violence and discrimination, combined with the current restructuring to a federalist system of governance with seven provinces and the devolution of powers to provincial and local levels, pose significant challenges for the country.
While recognizing the many new laws that have been adopted related to sexual and gender-based violence, considerable implementation gaps exist in almost all social policies related to women’s rights, ranging from various harmful practices, sexual violence, domestic violence to trafficking and continue to pose a considerable challenge.
Indeed, many government officials and other stakeholders that I met with, recognized that violence against women is a disturbingly common occurrence deeply rooted in the mindset and patriarchal attitudes that continues to have a significant negative impact on women, children and the wider community in Nepal.
My visit coincides with the recent examination of the sixth periodic report to the CEDAW Committee. I therefore hope that the recommendations provided by CEDAW, combined with those that I will outline in my report, will assist the Government in its efforts to eliminate violence against women and to uphold women’s rights in public, and especially in the private sphere, and to ensure that they are able to live a life free from violence in line with their international human rights obligations and commitments under the CEDAW Convention and other UN human rights treaties, as well as the Sustainable Development agenda and its stand-alone Goal No. 5 to achieve gender equality and empower all women and girls and eliminate discrimination and violence against women.
Legislation on combating and preventing violence against women and domestic violence
(a) The Constitution
The promulgation of a new Constitution in 2015 has brought with it many progressive provisions that aspire to achieve an equitable society based on the principles of inclusion and proportionate participation, while guaranteeing non-discrimination as a fundamental right, and outlining steps towards the elimination of gender-based discrimination. Article 38 (c) specifically provides that: No woman shall be subjected to physical, mental, sexual, psychological or other form of violence or exploitation on grounds of religion, social, cultural tradition, practice or on any other grounds. Such act shall be punishable by law, and the victim shall have the right to obtain compensation in accordance with law.
Despite these positive provisions, I share the concerns and recommendations highlighted by both the Committee on the Rights of the Child and the CEDAW Committee with respect to direct and indirect discrimination against women in Article 11 of the Constitution and the Citizenship Act of 2006.
Acquisition of Nepalese citizenship by descent is conditional on evidence that both the father and mother of the child are Nepalese citizens. The criteria for transmission of citizenship from Nepalese mothers to their children remain discriminatory, as they require the mother to be a resident of Nepal, exclude children born to women who are not permanent residents, and make citizenship subject to revocation for children whose previously unidentified father is later proven to be a foreigner. This provision is in direct contravention of Article 9 of the CEDAW Convention, and proposed amendments to the Citizenship Act 2063 Amendment Bill should ensure that any amendments are in line with Article 9 (1) of the Nepal Treaty Act 2047 (1990) .
While many of the new laws related to gender-based violence contain progressive provisions, some fail to fully comply with international standards and norms. For example, as noted by the CEDAW Committee provisions included in the Foreign Employment Act that restrict women’s opportunities in foreign employment, and the ban on foreign domestic work are pushing women, particularly displaced, rural, indigenous, Dalit women and girls, into irregular migration, which exposes them to higher risk of human trafficking.
(b) Implementation of laws related to sexual and gender-based violence
The recent substantial reform of the legal system, including amendments to gender discriminatory provisions of 32 Acts, through the Act to Amend Some Nepal Acts for Maintaining Gender Equality and Ending Gender Based Violence (2015), is a significant achievement, as is the introduction of legislation to make all forms of domestic violence, including marital rape, punishable crimes alongside human trafficking, cultural practices that perpetuate violence against women and girls as well as sexual harassment at the work place.
Furthermore, the development of Special acts, such as the Domestic Violence (Offence and Punishment) Act, 2009; and the Sexual Harassment at the Workplace (Elimination) Act (2015), as well as the enactment of a new Country Criminal (Code) Act 2017, along with Criminal Procedure Code Act 2017, and Sentencing Act 2017, as well as the Country Civil (Code) Act 2017 and Civil Procedure (Code) Act, 2017, all bring significant changes to general laws and proceedings, by introducing key provisions further protecting women’s rights and progress in ending violence against women.
The main challenge now, however, is to ensure that these laws and policies are fully implemented at the federal, provincial and local level. Steps must therefore be taken to accelerate the effective implementation of the constitutional guarantees, legal provisions and programmes aimed at eliminating discriminatory provisions and laws, including through strengthened capacity of local, provincial and federal newly-elected representatives and through the development of robust and effective monitoring mechanisms. Awareness raising campaigns should also be disseminated throughout the country to adequately inform women of their right to access justice, particularly at the provincial and local level.
Steps should also be taken to accelerate adoption of the proposed Special Opportunity Bill and End Violence Against Women Bill that would provide for mechanisms and institutions to increase the accountability of the Government to implement its gender equality commitments.
Access to justice
Access to justice for women must also be guaranteed by focusing on prevention, compensation, rehabilitation and protection of victims. The current statute of limitation for initiating any legal proceedings with regard to the rape and sexual violence of one year also poses a problem in terms of reporting by women and girls. Steps should be taken to review the legislation and consider amending it so as to allow the statute of limitation to continue for a period of time that is sufficient and commensurate with the gravity of the offence in question, to allow for the efficient initiation of proceedings after the victim has reached the age of majority. The limited capacity to guarantee full and effective investigation of cases also does little to discourage perpetrators and remains a serious problem in preventing cases of violence against women. In this regard, I am gravely concerned about reports suggesting that in a number of cases related to sexual violence against women and girls, such as the case of Nirmala Panta, among others, that have been referred to the police or court for redress, have resulted in impunity for the perpetrators.
The ongoing case of the rape and murder of 13-year-old Nirmala Panta, is a test case for the Government, and my mandate will closely follow any developments in this case, in the hope that it will be effectively resolved in line with the human rights standards, as adopted by Nepal.
The following steps should be taken to ensure that women and girls attain justice and must be implemented as a matter of priority:
➢ Strengthening the capacity of the police force, judiciary and public prosecutors
➢ Ensuring adequate training for members of Judicial Committees of the local government;
➢ Raising awareness among women and girls, particularly in rural and remote areas of the country, about the new laws that are in place, as well as the mechanisms that they can avail of in order to report incidents of violence and gender based-discrimination;
➢ Implement the necessary legislative or other measures to prohibit mandatory mediation and conciliation, in line with CEDAW Committee’s General Recommendation 35.
National Women’s Commission
While recognizing the upgrading of the National Women’s Commission to constitutional status, I urge the Government to expedite the appointment of the Commissioner on Women’s Rights; to provide the National Women’s Commission with a complaint mechanism and adequate authority, and to allocate adequate human, technical and financial resources for its functioning.
2. Elimination of harmful practices
The new Constitution of 2015 enshrined the rights of all castes, races, and ethnicity under fundamental rights. The adoption of the Caste-based Discrimination and Untouchability Crime Elimination and Punishment Act in 2017, further protects the rights of Dalit and other women discriminated on the basis of caste, while Government of Nepal has also established policies on untouchability through social inclusion. However, despite the legal protection, Dalit women continue to face multiple forms of discrimination in reality. Their vulnerable economic status, combined with the patriarchal values, exposes them to various forms of violence.
Traditional harmful social practices like ‘chhaupadi’, child marriage, as well as dowry and cases of polygamy, are entrenched in the prevailing patriarchal and social stereotypes. While the new laws and plans to protect women and girls against harmful traditional practices and violence against women, such as the Anti-Witchcraft Act of 2015, Muluki Criminal Code 2074 to criminalise Chhaupadi, the National Strategy against Child Marriage, and the National Strategy on Gender Based Violence and gender empowerment from 2010-2016, it would be important to enact an umbrella policy to eradicate all forms of social and cultural harmful practices and ensure full implementation and awareness raising of the laws without delay with effective monitoring.
Lack of a comprehensive National Action Plan on gender-based violence against women
In June 2017, the Government announced its Strategy to Address and Prevent Gender Based Violence which demonstrates political commitment in this regard.
Nepal should consider adopting the proposed National Strategy and Action Plan on Gender Empowerment and Ending Gender Based Violence and bring it in line with CEDAW’s General Recommendations No. 19 and No. 35 on gender-based violence against women, and ensure that it be fully and comprehensively implemented at the federal, provincial and local levels, in order to ensure that women in all areas of the country have access to comparable levels of services and protection. NAP is an implementation and measurement tool that should be based on comparable data collection. It could be a tool for the harmonization and implementation of laws and policies on gender-based violence as well as for the provision of a consistent approach to prevention and responses services to violence against women and domestic violence, including the effective provision of shelters, protection orders and help lines.
It is essential that the Government take immediate action, to strengthen the provision of integrated and coordinated services such as health, judicial, policing and social services at all levels with effective referral pathways to ensure protection and rehabilitation of survivors, in all provinces across the country. Capacity building training on domestic violence and sexual violence should also be provided to all relevant stakeholders, including to government officials, law enforcement authorities and religious and community leaders, in particular those in geographically isolated areas.
Provision of shelters and access to essential services
Service providers and other interlocutors that I met, all pointed to the dire shortage of adequate shelters across the country offering a safe house for women and girls who have been victims of violence, particularly within indigenous communities, and in rural and remote areas. The limited support provided to those shelters that are in place, as well as a lack of coordinated, gender-friendly and comprehensive essential services for the survivors of violence is of considerable concern.
The high level of suicides among women is extremely worrying and may be linked to the fact that women victims of violence feel that they cannot escape, often due to fear for their lives, or family pressure to reconcile with the perpetrator. The lack of safe refuge, and 24 hours helplines, as well as awareness of their rights in such cases only seeks to contribute to the high level of impunity of perpetrators, with 66 per cent of women who have experienced any type of physical or sexual violence choosing not to seek help (National Demographic Health Survey Nepal, 2016).
It is also important to provide sustainable funding for a sufficient number of safe and confidential shelters that also offer culturally sensitive accessibility for women with disabilities. In addition, education programs, professional counselling and other services needed for recovery and empowerment, as well as second stage housing, should be provided within the context of a comprehensive strategy aimed at women survivors’ empowerment and recovering. One Stop Crisis Management Centres should be evaluated and strengthened and in order to make them sustainable and equipped to provide integrated services for survivors of gender-based violence.
While I received some information on the possibility of seeking protection orders in cases of domestic violence, a lack of awareness among women of this right, as well as among officials from the newly formed Justice Committees, has hindered their implementation. Protection orders as legal instruments should be established in criminal and civil laws and competent authorities should be granted the power to issue effective protection orders for all forms of violence against women and domestic violence. These orders must be easily available and enforced to protect the well-being and safety of those under their protection, including children.
With regard to the services that should be provided by shelters, including safety planning, counselling, children’s programming, employment seeking assistance, and protection orders I draw the Government’s attention to the recommendations contained in my thematic report on human rights-based approach to integrated service for victims of violence against women with a focus on shelters and protection orders.
Violence against women and girls with disabilities
In the light of the most recent concluding observations to the State Party under the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW), the Convention on the Rights of People with Disabilities (CRPD) and the International Covenant on Economic Social and Cultural Rights (CESCR), I am concerned about incidences of violence against women and girls with disabilities in Nepal. Furthermore, based on the information received and the shelters I visited, there is a lack of culturally sensitive accessibility for disabled women.
Although the Disability Act 2017 prohibits violence against persons with disabilities, the legislative process has not been successful in the prevention or reduction of violence. Therefore, the Government should fully align its policies with the recommendations made by the international human rights mechanisms and provide a comprehensive assessment of the situation of girls and women with disabilities in the country, in order to establish a baseline of disaggregated data against which future progress towards the implementation of international human rights standards could be assessed.
The situation of women who encounter multiple and intersecting forms of discrimination and violence
The persistence of deeply rooted gender discriminatory and stereotyped attitudes and behaviours, as well as patriarchal social norms, including a tendency for son preference; the normalisation of violence and the social stigma attached to reporting violence, continue to pervade society at all levels, disproportionately affecting women and girls who face intersecting and multiple forms of discrimination, such as Dalit women, indigenous women, including Madhesi and Tharu, Badi women, women from religious minorities, women with disabilities, women living in remote areas, single women (widows), LBTI women and migrant women.
During my visit, I have paid special attention to the situation of women who encounter multiple and intersecting forms of discrimination and violence and have strived to unpack the compounding effects these different forms of vulnerability have upon one and another and play out in the violence they experience. I would encourage the Government to adopt a specific National Action Plan on violence against Dalit and indigenous women, that would include appropriate temporary special measures to accelerate their full participation at decision making levels. This would be in line with the commitments made under Article 22 and 23 of the UN Declaration on the Rights of indigenous peoples.
I further recommend that public recognition be given of the importance and legitimacy of the work of women human rights defenders, and women representatives from NGOs and that institutions responsible for safeguarding their work be strengthened in line with the Declaration on Human Rights Defenders, that was reaffirmed in the 2013 General Assembly resolution 68/181 on protecting women human rights defenders.
Trafficking of women and girls
Trafficking is also a matter of considerable concern in the country, particularly with regard to indigenous, Dalit and Badi women and girls, as well as women and girls living in border areas. The lack of a specific definition of the crime of trafficking in national law, or detailed guidance as to its various punishable elements, has done little to deter perpetrators. I therefore urge the Government to revise the Bill to amend the Human Trafficking and Transportation (Control) Act to bring it in line with the Palermo Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children, and to ratify the Palermo Protocol as a matter of priority.
While I understand that an Anti-trafficking Cell is in place within the structure of the Ministry of Women, Children and Senior Citizen, as well as various programmes that have been launched in collaboration with civil society organisations, and the establishment of a fund for rehabilitation of survivors of human trafficking in each district, reports suggest that those who are most vulnerable to trafficking are not benefiting from these mechanisms. An acute lack of awareness, combined with underreporting for fear of retaliation and lack of witness protection, as well as the complicity of family members, continues to exacerbate the issue. I would therefore urge the Government to strengthen the investigative capacity of the Human Trafficking and Transportation Control Bureau within the police, particularly in Districts along border areas, and to ensure the provision of adequate shelters and support facilities, for victims of trafficking. In this regard, I refer the Government to the report of one of my predecessors, Ms. Radhika Coomaraswamy, following her visit to Bangladesh, India and Nepal in 2000 to look at the issue of trafficking in the three countries (E/CN.4/2001/73/Add.2).
Women in detention
During the visits I conducted to correctional facilities, I was deeply concerned about their overcrowding as well as the lack of adequate facilities, including separate meeting area for receiving visitors, appropriate bedding, access to a nutritious diet, as well as to clean water and sanitation, and psychosocial care. The lack of any child and mother program is also of concern, as well as the lack of skill-based training opportunities. In the context of women’ incarceration, I would also like to refer to the United Nations Standard Minimum Rules for the Treatment of Prisoners and the United Nations Rules for the Treatment of Women Prisoners and Non-Custodial Measures for Women Offenders (the Bangkok Rules) which provides guidance for women in prison.
Transitional justice and victims of sexual violence
While welcoming the introduction of a draft Bill in 2018 to amend the 2014 Enforced Disappearances Enquiry, Truth and Reconciliation Commission Act, it is essential that the Government expedite the adoption of the Bill, and fully implement its provisions in line with Nepal’s international commitments and obligations. The women and girls who suffered sexual violence and torture during the conflict have waited too long for justice. Now is the time for the Government to demonstrate its commitment to ensuring that these women and girls attain justice, and that their cases are investigated in a gender-friendly manner while guaranteeing protection for victims.
Within the framework of the Interim Relief Program (“IRP”), only the relatives of individuals killed or forcibly disappeared, and those injured or disabled as a result of the armed conflict, were granted monetary assistance. Victims of torture, including rape and other forms of sexual violence, were not entitled to claim compensation. Sections 23 (A) and (B) of the draft bill recognize victims’ right to reparation and stipulate that interim relief shall be provided to those who did not receive support through this program initially. Interim measures must include provision for psychosocial counselling, and health services, as well as adequate compensation.
The adoption of the Second National Action Plan for the implementation of United Nations Security Council Resolutions 1325 and 1820 should be expedited, with the provision of adequate and sufficient resources and monitoring at all levels guaranteed.
Emerging forms of violence against women
According to date from the Nepal Peace Monitoring Project in 2017, 149 people, 140 of them female, were killed in various incidents of GBV in 2017. Of them 75 women were killed in intimate partner or domestic violence. This means that of 446 total killings in 2017, one third can be directly attributed to GBV, making Gender Based Violence the leading identifiable trigger for violence deaths in Nepal in 2017.
While I received some official general data on violence against women, it is clear that the collection of disaggregated data remains a significant challenge. Comparable data on specific forms of violence and gender related killings of women’s or femicide, and on suicide cases, is essential for evidence-based policy making.
In this regard, I would recommend the establishment of a femicide watch or observatories in all Provinces, in close cooperation with the National Women’s Commission and representatives from civil society, as recommended in my thematic report on this topic (A/71/378).
The data collection system currently being proposed by the Supreme Court should also be encouraged and adequate human and financial support provided as necessary.
Ladies and gentlemen,
Finally, I would like to end on a positive note, through my exchanges with various interlocutors, at the State and non-State level I observed that the Nepalese society is beginning to openly acknowledge the levels of violence against women in the country. If the Government gives priority to designing and implementing effective policies on eradicating violence against women, in cooperation with civil society, I am convinced that Nepal could accelerate the eradication of harmful practices such as chhaupadi, to ensure gender equality and the right of women to live free from a life of violence.