Statement By Ms. Kyung-wha Kang, United Nations Deputy High Commissioner for Human Rights - National Consultation on Access to justice for victims of caste based discrimination in Nepal

Kathmandu - 20 April 2011
Hotel Himalaya

Hon. Chairperson of the National Dalit Commission
Hon. Attorney General
Hon. Member of the National Human Rights Commission,
Hon. Constituent Assembly members
Distinguished Secretary of the Office of the Prime Minister,
Representatives of the judiciary, law enforcement, human rights organisations, civil society, international community, the media and distinguished guests,

I am very honoured and pleased to be with you today at this National Consultation on Access to justice for victims of caste based discrimination in Nepal, an event that brings together key national stakeholders to review the barriers faced by victims of caste-based discrimination and untouchability in Nepal while seeking justice and redress. I would like to extend personal greetings of the High Commissioner, Navi Pillay, who attaches great importance to these issues.

An estimated 260 million persons worldwide are affected by ‘Untouchability’ and other forms of caste-based discrimination, which is typically associated with notions of ritual purity and pollution deeply rooted in the social hierarchy. 

The twin principles of equality and non-discrimination are at the core of the international system for the promotion and protection of human rights. The concept of Caste and ‘untouchability’ are the very negation of these principles. Caste based discrimination and untouchability condemn individuals and entire communities to a life of exploitation, abuse, social exclusion, stigmatisation and segregation.

Victims of ‘untouchability’ face structural discrimination that locks them in a vicious cycle of poverty and marginalization. Members of affected communities are frequently confined to hereditary, low-income and often demeaning occupations, and denied access to assets including land, and credit. Child labour is common in Dalit communities and children of lower castes suffer high levels of illiteracy. For women, caste is a multiplier that compounds the violence and discrimination that they live with every day.

As a State party to the International Convention on the Elimination of All Forms of Racial Discrimination, the Government of Nepal is obligated inter alia, to prohibit discrimination based on descent, including caste-based discrimination.

The 2007 Interim Constitution of Nepal guarantees the right to equality, and protection against discrimination based on caste, and further prohibits untouchability in any form, establishing liability of the perpetrator and entitling the victim to compensation. It also prohibits denial of access to, or use of, any public places, goods or services on the basis of caste, and the encouragement of caste superiority. In addition, the Civil Code criminalises “discriminatory behaviour of untouchability” along with “boycott of, or restrictions against any person on the basis of caste”. This builds on earlier legal provision, such as the 1969 General Code, which attempted to end caste-based discrimination.
Yet despite the illegality of such practices, caste based discrimination and the practice of untouchability are still common in Nepal, and Dalit communities remain unable to enjoy the same rights and freedoms as other groups in society. Cultural barriers, structural poverty and inadequate action by state authorities prevent victims from accessing justice. Those who oppose the discriminatory practices not only face the risk of being further ostracised, but are also subjected to acts of violence.

I am told that, just a week ago, a Dalit woman in Gulmi district was physically assaulted for allegedly having “touched” the temple priest while performing her rituals. Seventeen members of a Dalit family from Darchula district are displaced since 2009, following threats and violence after an inter-caste marriage. In Lalitpur, a Dalit woman was assaulted, publicly humiliated and forced to eat her own excrement by members of the upper caste community who accused her of witchcraft and sorcery.

The current legal framework is not proving effective to curb discriminatory practices. It fails to classify acts that amount to discrimination, indicating the seriousness of each offence and allowing for a proportionate penalty. Moreover, the 35 day limit for the police to register a case, complete its investigations and file a report with the District Attorney and subsequently the District Court, is clearly an obstacle in accessing justice. Significantly, the provisions of the Civil Code do not provide any compensation for victims in contradiction of constitutional requirements.

There are hopeful developments that would address such lacunae in the law.  At its first Universal Periodic Review by the Human Rights Council in January 2011 the Government of Nepal received, and accepted, most recommendations to revise and adopt appropriate legislation to end caste based discrimination. Most notably, the Government accepted the recommendation to adopt a bill to end caste-based discrimination and untouchability.

The submission of the draft Caste-based Discrimination and Untouchability Crime Elimination and Punishment Act to the Legislature-Parliament in July 2009 provides an opportunity to improve the legal framework for the fight against discriminatory practices. I am pleased to learn that the Legislative Committee has appointed a sub-Committee that will meet tomorrow to review the draft Act. OHCHR and the National Dalit Commission have recently reviewed the draft Bill  proposing concrete recommendations to the Legislature-Parliament and other key actors to ensure that the Bill is consistent with international human rights standards and the commitments made by Nepal under international law. If the current shortcomings are addressed, the proposed law will become a pivotal instrument in providing access to justice for the victims and ensuring accountability for caste-based discrimination.

OHCHR welcomes the commitment expressed by the government at the Human Rights Council, and would like to reiterate the importance of swiftly adopting the Bill in conformity with international standards

The adoption of national legislation is an important first step, but clearly is not enough. It must be implemented and enforced. The police and civil service need to be sensitized to ensure proper implementation and enforcement of the law. Guidance and accountability structures, must be put in place for police to investigate such acts as crimes rather than urging victims to settle cases outside of the framework of rule of law, often through informal ‘mediations’. The Government should also guarantee proportional representation of marginalized groups, including Dalits in law enforcement and judicial bodies at all levels.  

The judiciary needs to uphold human rights and ensure that the government implements constitutionally guaranteed rights, including economic, social and cultural rights. I would like to recall here the two landmark decisions given by the Baitadi district court over the past eighteen months, where for the first time in Nepal three perpetrators were found guilty of caste based discrimination and sentenced to imprisonment. However, two of the three are yet to serve their sentences. The failure of the police to promptly circulate arrest warrants and to take proactive steps to locate the perpetrators highlights the problems with enforcement.

As oversight mechanisms, the role of national human rights institutions is crucial in advocating for legislative, policy and structural changes for the elimination of caste-based and other forms of discrimination. In this regard, I would like to acknowledge the continuous advocacy efforts put in place by the National Dalit Commission and other national human rights institutions in demanding access to justice for victims of untouchability caste-based discrimination and their efforts in outreaching remote areas of Nepal, where these discriminatory practices are deeply rooted. OHCHR is committed to the continuation and further consolidation of its partnership with National Human Rights Institutions, including through joint advocacy and programs.

In Nepal, entrenched discrimination has been widely acknowledged as one of the grievances that prompted the 10 years long conflict. While it is urgent to address the violations endured by descent-based communities, it is equally important to examine the root causes of this discrimination. Work to challenge the deeply rooted systemic, cultural and social prejudices, that give rise to the descent based segregation of different communities remains of paramount importance. In this regard, general awareness raising at community level and targeted programs for school students, are essential.

The theme of the 2010 Human Rights Day, observed throughout 2011, is “Speak up…stop discrimination!” Let me take this opportunity to applaud the efforts of human rights defenders and organizations represented in this room and across Nepal who struggle on a daily basis to break entrenched cycles of discrimination and injustice.

Many of you work in remote and isolated areas, under challenging circumstances, and I am happy to know that today we have with us a delegation of human rights defenders representing all of the five development regions of Nepal. With unrelenting commitment you contribute to helping ensure a dignified life for all. 

Ladies and gentlemen,

Protecting the rights of those historically discriminated on the basis of caste will continue to be a priority for our Office in Nepal, as well as OHCHR at large. The High Commissioner has made it her personal commitment to advancing these issues in public statements and writings. Substantive improvements will not be achieved without a widely adopted change of mentality, a long term process that might need more than a generation to occur. To sustain that process, OHCHR will continue to focus on objectives which can be achieved in the short and mid-term and that pave the way for long-lasting structural changes, through the development of effective national mechanisms of accountability, strengthening the response of the justice system to discrimination, and promoting access to justice for victims.

As part of this the Office in Nepal is currently finalising a public report highlighting the challenges of victims of caste-based discrimination in accessing justice. The report is based on emblematic cases investigated by the office. We hope that the report will become a useful advocacy tool for all concerned stakeholders.

In closing, let me reiterate our engagement in extending support to the government of Nepal, the national human rights institutions and civil society organizations in the achievement of these crucial goals.

I look forward to the discussion that will follow, with the sincere wish that this event will provide a meaningful contribution to the protection and promotion of the rights of victims of caste-based discrimination in Nepal.

Thank you.

-----