Civil Society Organisations In Nepal Is Space For Engagement Shrinking ?
On September 20, 2015, Nepal promulgated the new constitution that was framed by the 601-member popularly elected Constituent Assembly. It has repealed the centralised unitary polity and ushered in the federal restructuring of the state. It is a republican constitution that has to embody and establish the limited character of the government.
Freedom of association
The constitution has guaranteed the freedom of association. And according to article 17 of the constitution, a Nepali citizen has the freedom to form and get associated with a political party. The constitution also guarantees the right to equality and non-discrimination, right against preventive detention, right to information and right against torture - which are the major elements of civil and political rights. Moreover, the right to education, right to health, right to food, right against untouchability, right to social protection, which constitute the essential ingredients of economic, social and cultural rights, are also guaranteed by the constitution.
However, the right to freedom of association is not an absolute right and can be limited through reasonable restrictions on grounds like jeopardy to the sovereign interests of the state and breach of social harmony, public decency and so on. This provision is, therefore, encumbered by the broader interest of the society.
Despite the new republican federal constitution that has envisaged a stronger foundation of rights and entitlements, the relevant laws and statutes are still obsolete and obsolescent. It is very discordant to note that civil society organisations in Nepal are still governed by the Association Registration Act 1977. This act was amended only in 1992.
It was executed, that too in nominal terms, with a view to purely shaping it to reflect the plural political order established in 1990, especially following the wave of democratisation that had swept Nepal too in a very significant manner.
The Act delegates the authority to the District Administration Offices, which are the district units of the central agency. These offices maintain law and order, review the security situation in the 75 districts and work under the purview of the Ministry of Home Affairs. These agencies exercise authority to register, guide, direct and supervise the non-governmental organizations, better known as civil society organisations.
The Act envisions and defines NGOs as service providers and thus fails to encompass the diverse range of organisations with multiple objectives - human rights, social accountability, civic education and conscientisation. The inadequacy in the scope of the Act gives rise to confusion and has been used for delaying or even refusal to register an association.
For example, very recently, an application filed to register an association with the objective of providing civic education and supporting electoral reforms at the Kathmandu District Administration was delayed for nearly three months as endorsement for these objectives was sought not only from the regional administration office but also the National Election Commission of Nepal.
Perhaps with the implicit intent of discouraging NGO registration (given the mushrooming numbers), procedural hurdles and complexities have been added to the process of registering the association, getting yearly renewal and obtaining official approval for carrying out activities. Not even a single activity can be carried out without integrating or aligning with the local government activities in the districts and communities.
The activities and budgetary provisions must be furnished and bank accounts shown to the district level government that is mandated to coordinate the activities of the civil society organisations. Though this is yet to be fully enforced, this will come into force as those not complying with it can be barred from working in the district. The CSOs active in anti-corruption and human rights related activities may have a difficult time in the times to come.
While applying for registration, the endorsement letter and recommendation need to be secured from the municipality ward office, District Development Committee office. A letter endorsed by the police verifying that those applying for the association’s registration are genuine and possess good character must also be furnished. The cumbersome procedures introduced have discouraged the CSOs as this has lent impetus to bureaucratic arbitrariness and given rise to red tapism and bribery.
At least five to six years ago an association could be registered in at least one or two days’ time, but now it has started to take months. The multiple ministries like the Ministry of Women, Children and Social Welfare, Ministry of Home Affairs, Ministry of Federal Affairs and Local development, Ministry of Commerce and Industry govern NGOs according to their specific frameworks and requirements.
Recently a new directive has been issued by the National Reconstruction Authority, formed to look after the recovery and rebuilding of quake-damaged structures in the districts, that mandatorily requires the NGOs to work as per the provision prescribed by the authority.
The Social Welfare Act 1992 provides for the Social Welfare Council to regulate and monitor the NGOs and INGOs. There is lack of an organic umbrella law to govern and facilitate the CSOs. The head of the council is a political appointee, and the minister who looks after the Ministry of Social Welfare picks his loyalist to head this council. As there is no stability in the government, the same is true of the council, which has given rise to anomalies.
Against this backdrop, there is a need for a broad-based discussion on designing a new umbrella legislation to govern and facilitate the civil society organisations and broaden the space for their work and engagement.