Oped

On sex and citizenship: the discrimination against women in Nepal

- Subina Shrestha

Jun 13, 2019-

On May Day, I woke up with a message; an old-school mate of mine had died. I’d just reconnected with Smita, ten days before her death, after a fifteen-year interval. She’d been living in Denmark. As she got up to leave the restaurant where we’d met, I realised that her body could hardly support her. She’d been recovering from cancer and had just had her uterus and ovaries removed. Leaning against me, she said she’d come back home to get her daughter a passport.

Smita probably knew that her end was near and despite, or perhaps because of, this she came home to get her 22-year-old daughter Michelle a valid passport. Michelle left Nepal with Smita in 2009. Her hand-written passport was phased out in 2015.

Michelle should have had no problems getting a Nepali passport. Nepal’s Constitution says that ‘any person whose mother or father was a citizen of Nepal at the birth of such a person’, shall be entitled to Nepali citizenship by descent. Michelle was born in Nepal to a Nepali mother. However, her birth certificate said ‘father not identified.’ And Smita was unaware of a constitutional clause; for a Nepali mother to be able to pass on her citizenship to her child, she has to prove that the sperm comes from a man bearing a Nepali citizenship certificate. Nepal is one of the 27 countries that limits a woman’s ability to pass on their citizenship to their children, according to the Pew Research Center, joining the ranks of countries including Libya, Sudan and Iraq. The Nepali state wants to ensure that Nepali women marry and bear children of certified Nepali men if they want their children to be citizens.

In Nepal, Women have fought for their reproductive rights for decades. Abortion became legal in 2002. But should a woman choose to have a child on her own, or should she be abandoned by the man who impregnated her, the only way out is a legal battle in the courts. As many as 5.2 million people, 18 percent of the population of Nepal, do not have citizenship documents.

This seems to be a curious inversion of the recent reversal of abortion rights in several US states, but it’s actually part of the same issue. The issue is, who gets to decide how women have babies?

On May Day, I found myself sitting with Michelle, who herself is now the mother of a toddler, in my house. Like many modern families, Michelle is an unmarried single mother. In Denmark, she was capable of taking care of her baby while putting herself through college. Michelle managed to take her mother to the hospital when she had breathing difficulties. When Smita died of cardiac failure, Michelle spent half the night navigating the strange city of her birth, with her dead mother and a toddler, trying to find a morgue.

Yet nothing had prepared Michelle for what followed next. When she went to apply for a passport with her old passport and birth certificate, along with her mother’s passport and citizenship, she was told to get her own citizenship certificate. The District Administration Office, which distributes this document, told her to get a recommendation from the ward office, the smallest local unit. The men in the ward office, who knew Smita and knew Michelle when she was a child, told her that they wouldn’t write it.

I tracked down the ward chairman, Nabin Manandhar, who said that there was no precedent for giving such a recommendation for the child of a Nepali mother. ‘If the chief district officer recommends us to write such a letter, we shall do it,’ he told me.

‘Citizenship through mothers should not be a problem,’ a senior politician told me. In February 2011, in a landmark case, Nepal’s Supreme Court granted citizenship to Sabina Damai, whose father was not identified. But bureaucrats do not see the Supreme Court’s ruling as a precedent. One official told me that Michelle could get her citizenship if she files a case against the state. ‘Her mother should have just married a Nepali man,’ another official said.

Lawmakers and opinion makers, mostly high caste men in Nepal, have diverted the discussion on citizenship from an issue of equality and human rights to one of national sovereignty. Nepal shares a 1,800-kilometre border with India. People from the southern plains, known as Madhesis, have cultural and marital links to those across the border. So, by restricting the rights of Nepali women, policymakers argue, foreign men won’t infiltrate Nepal.

This warped logic means that the children of Nepali men married to foreign women automatically become full Nepali citizens, but not if it’s the other way around. The children of such Nepali women with foreign fathers can apply to be ‘naturalised’ citizens. Naturalised citizenship is a discretionary document, not a right.

The debate on the Citizenship Amendment Bill, which is currently before parliament, goes from nationalist rhetoric to plain misogyny. Lawmakers have argued that ‘rape cases will increase’ if (effectively fatherless) children from rape are given citizenship, and that women should not be trusted when they say that they do not know the identity of their children’s father.

We managed to trace Michelle’s biological father. At the district administration office, it was proven that Michelle was a fully qualified Nepali. But there was another curveball. According to the officials, Michelle still could not be a citizen because she was the mother to a foreign child. It did not matter that she’s unmarried, an official explained: ‘Under Nepali norms, she’s considered married’. Therefore, he said, ‘if a Nepali woman, at the time of marriage, does not have a citizenship, she has to get it through her husband.’ In April 2007, the Supreme Court of Nepal ruled that ‘even married women have the right to acquire citizenship through the father or mother.’ But officials say they are waiting for the new Citizenship Act.  

 Nepal’s first civil code, the Muluki Ain (1854) was based loosely on the first Hindu code, Manusmriti, written in about the 2nd Century BCE. It says, ‘Her father protects her in childhood, her husband protects her in youth and her son protects her in old age; a woman is never fit for independence’. The 2015 Constitution has not deviated far from it.

But beyond the Hindu code, Michelle had to be more than a son. In the midst of the painful legal debacle, Michelle, along with Smita ’s sisters and I, went to collect Smita’s body from the morgue. When we went to the crematorium, it was Michelle who performed the horrendous task that every Hindu son is supposed to do. She lit the pyre and bid her mother a final goodbye.

When she took Smita’s ashes to the river, she stayed brave. ‘Mummy always told me to bring her ashes to Nepal if she died abroad,’ she said. Such was her attachment to her motherland.

The ward office refused to register Smita’s death as the applicant, Michelle, was a non-citizen. The Nepali bureaucrats, who would not help her get citizenship or a passport, helped Michelle get a travel document and sent her off back to Denmark, where Michelle has a half-brother and a step-father. Michelle is on a fast track to becoming stateless.

Shrestha is an award-winning journalist and a filmmaker. She was a 2017 Nieman fellow at Harvard.

Published: 14-06-2019 06:00

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