Federalism and Nepal’s constitution making: how phase one might differ from phase two

With a new Prime Minister elected to form a government on February 10 and the Constituent Assembly finally convening  last January 22, Nepal seems to be making headway in resolving the gridlock that has beset it since the November elections. Leaders from across the country’s political divide have set themselves a 12-month deadline to write a new constitution, although this may sound too optimistic as two months have already been lost. A committee has also recently been set up to draft the CA’s rules of procedure. By all accounts then, it seems, despite the two months delay that things are moving in the right direction.

To anyone familiar with Nepali politics, it is trite learning by now that federalism, which was the main bone of contention in the first phase of this process, is— as I have also intimated elsewhere—likely to be the deal breaker as this second phase of the process moves forward. The Nepali Congress (NC) and the Unified Marxist Leninist (UML), together with other smaller parties, are in favour of territorial federalism and fewer federal units whereas the third largest party UCPN (Maoist), along with Madhesi and ethnic-based parties, maintain their stance on federalism based on ethnic and regional identity. However, one might expect the debate to be not only less acrimonious but also less problematic than before. There are potentially a number of reasons for this but two are critical: the economics and the politics.

The economics

While Nepalese have long wanted a new constitution to take the country out of the political impasse that has beset it since the end of the civil war in 2006, the prevailing reality seems to be a general sense of disillusionment with the political establishment. Media reports in the run up to, and after, the elections suggest that ‘bread and butter’ issues, rather than what system of government or form of state should be in place were key priorities for ordinary Nepalese. One need not search far to see why this is so. A recent UN report states that between 2000-12, Nepal’s economic growth stood at 2.7 per cent per annum — a rate that surpasses the average population growth rate of 1.7 per cent, but well below Nepal’s average GDP growth rate of 4 per cent in that period. It estimates that nearly 550,000 youths enter the job market every year of which about 400,000 take up jobs in foreign countries where the demand for migrant workers is very high. The report proceeds to warn that Nepal will continue to endure ‘jobless growth’ if it fails to rethink on its growth strategy that has so far failed to address problems faced by unemployed people and those engaged in vulnerable and low-paid jobs.

In a recently released post-election results autopsy, the UCPN (Maoist) found no significant correlation between its stance on federalism and the exit polls and the same can be said of the NC victory. Some reports following the election cite, amongst others, ‘lavish lifestyles of UCPN (Maoist) leaders with increasing allegations of corruption and nepotism’ as reasons stated by voters for voting against the party. Others indicated that they could not continue to let themselves be deceived by ‘sweet speeches’ while ‘party leaders became millionaires overnight’.

In fact, to some observers, the election results show that these polls were more a referendum on the UCPN (Maoist) leadership rather than an endorsement of the NC agenda.

The politics

The current political configuration and the fall out of the November elections are clearly going to have a huge impact on the how the debate on federalism proceeds during this phase. Under the current configuration of the CA, the pro identity-based federalism camp looks as follows: 

Together, these come up to only 145 seats. At least a two-thirds majority is needed to push through a new constitution. 

On the other hand, the camp against identity-based federalism looks as follows:

This gives a total of over 401 seats or the two-thirds majority necessary to push forth the constitution.

Clearly, the UCPN (Maoist), in their distant third position, can hardly muster the numbers—even in coalition with other smaller parties sharing the same ideological position on the issue—necessary to block any NC led-coalition‘s resolve to pass the constitution or even force them to negotiate, should they choose  that path. But is the NC likely to go down that route? The answer very much depends on what opportunities exist for compromises with the UCPN (Maoist) camp.

In its election manifesto, the NC proposed to form seven provinces on the basis of: (i) ethnic, linguistic, cultural and historical identity, and (ii) economic, physical and administrative capacity for prosperity and autonomous governance. It also suggests creating autonomous, protected or special areas for necessary regions with dense ethnic, linguistic or communal settlements or geographical regions with special culture. While such propositions from the largest party create hope of some space for constructive deliberations on identity-based federalism in the new CA, it will require great compromises from all other parties on the issue to reach an amicable solution.

Anyone familiar with Nepal’s constitutional transition knows too well that the ideological divide amongst the parties run too deep to make any compromise likely.

While the NC and its allies are open to negotiations and compromises, many observers believe they will not hesitate to use their numbers to pass the constitution in case of deadlocked negotiations.  The UCPN (Maoist) Chairman Pushpa Kamal Dahal in the first meeting of new CA has already warned such a move will amount to a historical error. Should the NC take this too seriously, Nepal may likely be looking at a referendum to resolve this issue. In fact, this is the position in the UML election manifesto, which current NC Prime Minister Sushil Koirala—at least prior to his election—indicates may be the way to go.

At least one reason for this approach is that a referendum on the federalism question and other contentious issues, if conducted fairly, might also get buy in from other parties such as the RPP-N which spurns the whole idea of federalism. It has to be recalled that this is now the fourth largest party in the CA.  Secondly, it can also be a way to start a dialogue with the CPN-Maoist led 33-party alliance, which boycotted the November election, in constitution writing processes. This might help to prevent risks of tension or conflict, from some parties that continue to call for street demonstrations if demands for identity-based federalism are ignored in the second CA, over any constitution that emerges.

[1] Prabindra Shakya is associated with different NGOs in Nepal for research and advocacy on peacebuilding and human rights.