The law of Nepal, to some extent, has provided mothers the right to transfer citizenship to their children. Article 8 of the Interim Constitution of Nepal, 2007 and Section 3 of the Citizenship Act, 2006 have guaranteed equal rights to men and women in transferring citizenship to their offspring. But in practice, mothers cannot transfer their citizenship to their children in the same way as fathers do.
There are some confusing provisions in laws which have made the practice of transferring citizenship complex for women. The first difficulty lies in describing a woman’s identity on the basis of her marital status. Only women who are married to Nepali men are capable of transferring citizenship by descent to their children. If married to a foreigner, a woman can only transfer citizenship by naturalization to her child, if the child is born in Nepal. [break]
Similarly, provisions for single mothers transferring citizenship without disclosing the father’s identity have not been identified in existing laws. The provisions are not clear with regard to children born out of wedlock, i.e. through prostitution or from rape victims, trafficked women, surrogate mothers etc. The legal provision only states that “father or mother” can transfer citizenship to their child, but is silent on whether unmarried mothers can transfer citizenship. The law is also silent on whether married women can transfer citizenship to their children without disclosing her husband’s identity.
In cases where citizenship by descent is given to children through their mother, the mother’s name is mentioned on the citizenship, but the father’s name is still recorded as “unidentified.” This proves that a mother’s independent identity is still not fully respected in Nepal, because a father is mentioned in any case, even if he is not identified.
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The stories of mothers who are unable to transfer their citizenship to their children are pathetic. Mira Thapa (name changed) from Bardiya stated “when I tried to transfer citizenship to my son, they issued the citizenship, but through his father’s lineage. They had written Buwa Thaha navayeko (father unidentified) on the document. Because of those words, my son refused his citizenship, and the document is with me. He says it’s better not to have a citizenship than have one with words that will humiliate him throughout his life.” Another story is of 18-year-old Rama Karki (name changed) from Nepalgunj, who, being deprived of citizenship from her mother’s identity, is unable to pursue her further studies.
Since 1992, the Supreme Court has issued a series of landmark verdicts with regard to citizenship rights and the protection of women’s rights in transferring citizenship. But those verdicts have not been satisfactorily implemented in other cases. In 2011, the Supreme Court made another landmark decision in Sabina Damai’s case by granting citizenship right by descent to children, if either mother or father has a Nepali citizenship.
Sabina Damai, who faced challenges in obtaining a citizenship with her mother’s identity in Dolakha, filed a writ petition. The decision given by the court on this case was progressive, suggesting that the court had left patriarchal thinking behind, and giving rise to hopes that children born from single mothers, including from rape victims and divorcees, will be able to obtain citizenships from their mother’s identity. This verdict on this case respected women’s independent identity, holding that as per the Interim Constitution and Citizenship Act, a child can claim citizenship if either of his/her parents hold a Nepali citizenship. It also directed the government to create the necessary mechanisms to distribute citizenships from mothers’ identities.
Even after this decision, the government officials in districts insisted that this decision was made only for Sabina. If any other individual wants a citizenship of such nature, they need to file a case. If the court gives an order, the officials will implement it, but not issue a citizenship through a mother otherwise. The cases of Mira Thapa and Rama Karki mentioned above are glaring examples of such practices. Officials of the Home Ministry state defensively that they have already issued directives to all the district administration offices clarifying the constitutional provision and the decision of the Supreme Court. But the response we get from implementing authorities in various districts is exactly the opposite.
Nepal is a signatory of many international human rights instruments like the UDHR (Universal Declaration of Human Rights), ICCPR (International Covenant for Civil and Political Rights), CEDAW (Convention for Elimination of Discrimination against Women) and CRC (Convention on Right of Child), which have recognized the principle of non-discrimination on the basis of sex with respect to the right to citizenship, and the right of child to be protected in the issue of citizenship. As Nepal is a party to these instruments, it is obliged to make necessary laws or to amend discriminatory laws relating to these issues. Nepali constitution and laws are not completely in line with the said international human rights instruments. To some extent it has regarded men’s lineage as official and has treated women as second class citizens, without fully respecting women’s independent identity. This proves that the Interim Constitution of Nepal 2007 and the Citizenship Act 2006 have failed to recognize gender equality in the real sense.
The government has sent mobile teams to various parts of the country to distribute citizenships. It has also urged all eligible voters to obtain their citizenship certificates and register their names for the new polls. Whether the distribution of citizenship would protect citizens’ rights, or whether it is just a way of increasing names in the voter list is a matter of serious concern. But the major concern of this article is that every mother who wants to transfer citizenship to her children through her own identity should be respected, as her right to do so has been guaranteed by the constitution and mandated by the Supreme Court in various cases.
In conclusion, the government needs to ensure adequate mechanisms to guarantee citizenship to all those children who are deprived of citizenship from their mother’s sole identity in order to respect the principle of gender equality by protecting the right of women, especially the right to citizenship. At the same time, unclear and confusing legal provisions need to be amended to meet the criteria of the principles of International Human right instruments.
The writer is an advocate and LLM student
avimaupreti@gmail.com
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