The parliamentary State Affairs and Good Governance Committee endorsed an amendment bill on the Citizenship Act 2006, with the provision that foreign women married to Nepali men will have a seven-year probation period to acquire naturalized citizenship in June.
This has stirred protests in some provinces of Nepal which shares borders with India where inter-state marriages are common. Similarly, the Nepali Congress and Rashtriya Samajwadi Party also opposed the provision calling it unconstitutional against the provision of the Interim Constitution 2007.
While this has raised the issue on statelessness of many foreign women who get married to Nepali men, one needs to focus on the fact that there are no provisions for a foreign man who marries a Nepali woman and he has to spend a minimum of 15 years in Nepal before being eligible to apply for naturalized citizenship leaving their children in a protracted state of limbo. Although the new citizenship amendment bill implies a foreign woman marrying a Nepali man to wait for seven years to receive all the rights granted by a country to its citizen, it still grants access that is not available to a foreigner husband of a Nepali woman.
Although Nepal does not acknowledge that it has a stateless population, experts believe that many people, possibly hundreds of thousands, maybe affected. The problem of statelessness in our country is not new. If we look back to history, the restrictive Citizenship Act of 1964 was retained when Nepal returned to democracy in 1990. This Act specified that citizenship by descent could only be granted to someone whose father was Nepali citizen at the time of his/her birth.
In the case of naturalized citizenship, the residency requirement was increased from five to fifteen years and the mandatory requirement of being able to speak the national language was also added. Only when foreign women married to Nepali men provided evidence that they intended to revoke the citizenship of the foreign country, they acquired Nepali citizenship.
The interim constitution in 2007, maintained the provisions regarding naturalized citizenship, but citizenship by descent was expanded to allow citizenship to persons born to a father or mother who was citizens of Nepal at the time of child’s birth. However, a child born to a Nepali mother and a foreign father could only acquire a naturalized citizenship certificate. Hence, the child would not be granted the rights provided by the country until he comes to an age to claim for naturalized citizenship. This prevented the children of single mothers and those whose fathers refused to admit their paternity from acquiring citizenship certificates.
The latest version of the law stems from Nepal’s September 2015 constitution. The Constituent Assembly did not close the legal gap between men’s and women’s citizenship rights. Despite the replacement of the and-formulation by the or-formulation in Article 11.2.b of the new Constitution, meaning that fathers or mothers can pass on their citizenship to their offspring, women still suffer from gender inequality.
According to Article 11.3, Nepali women should both establish evidence of the citizenship of the child’s father and that the offspring was born in Nepal to obtain citizenship by descent. This constraint applies only for the children of Nepali women and not of Nepali men. This signifies that sons and daughters of mothers who suffered rape, migrated to other countries, were trafficked, abandoned by their boyfriends or husbands, married to foreigners or who are stateless and/ or are in relationships with stateless men or refugees, can expect rejection of applications on behalf of their children for Nepali citizenship by descent. Moreover, women could feel forced to stay with their husbands as long as they have not applied for the children’s citizenship together since children can request their citizenship only from the age of majority according to Article 11.3 of the new Constitution.
This dis-functional system does not allow members of a minority group within the Nepali society to explore their full economic, political, and social potential and capacities. The children of these stateless parents have high chances of being denied to access citizenship along with exclusion in education and formal employment. And as generations unfold with similar stature, Nepal will see a sharp rise in an undocumented, uneducated population which could lead to significant and high cost political and administrative problems soon. The denial of citizenship will severely undermine democracy in Nepal due to a lack of participation in the political process by the state denied citizens.
Nepal today is a fledgling democracy at a crossroads and is struggling to achieve a common understanding of the process of nation-building and national identity. And under such circumstances, the citizenship discourse should not be positioned solely as a gender empowering or dis-empowering debate. Instead, it should be understood that the added complexity of millions of stateless people can pose serious threats to internal peace, stability, and security.
While other countries strive towards citizenship norms based on international best practices, Nepal’s discourse on citizenship is evocative of its archaic feudal structures. There have been instances where politicians have expressed fear of inciting an influx of Indian settlers in the Terai and have shown an unwillingness to work together on statelessness. Worse, they have sidelined the citizenship issue as less important than state restructuring.
Aashiyana is a Research Associate at Centre for South Asian Studies, a Kathmandu based think tank. Her research interest lies in South Asia, Connectivity, Gender, and Inclusion. She can be contacted at firstname.lastname@example.org.
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