Nepal: Back to the negotiation table or back to the streets?

After seven years of constitution-building efforts, Nepal is yet another step further from reaching consensus. Given the large-scale protests that revived on 28 February, the article provides a snapshot of how the process unfolds on the ground.

In January, Nepal again failed to deliver its new constitution amidst infamous vandalism of opposition politicians in the Constituent Assembly (CA). The crisis worsened when the CA announced the formation of the Questionnaire Committee to prepare questions on unresolved constitutional issues before the new constitution goes on vote in the CA. The CA Chair proposed the committee himself despite protests from opposition Maoists, Madhesi and other parties. As a result, opposition parties boycotted all CA proceedings and tens of thousands took to the streets to block the ruling coalition from pushing through the new constitution with their two-thirds majority in the CA. Following the protests, talks have finally continued between the ruling coalition of the Nepali Congress (NC) and the Unified Marxist-Leninist Party (UML), and the Maoists, which were the key parties to the 2006 Peace Accord.  

Many factors, ranging from forces outside the CA to personal aspirations have come into play to bring the parties back to the negotiation table. The leaders have reportedly been able to narrow their differences on disputed issues of judicial and electoral systems as well as the model of governance in the new constitution, yet consensus still seems difficult on the key sticking point of federalism - and confrontation looms large.

External forces

Nepal’s feuding politicians must realize that time is not on their side. Public disgust has suitably chastised all for their inability to produce a new constitution and Nepal’s Southern neighbor, India, is also pushing for consensus on constitution drafting. Neither the ruling nor the opposition alliances want to be seen as being against dialogue and holding up the constitution writing process. They are also pressed to reach a compromise to preserve the legitimacy and gravitas of the CA.

Lately, extremist forces have grown stronger inside and outside the CA pushing major parties to come together. Hindu fundamentalists and monarchists have amplified their efforts for a return to the Hindu Kingdom. RPP-N, the fourth largest party, has continued its demand for referendum on secularism and republicanism. The former King himself came back in scene in late February, when he broke his long-kept silence calling parties to implement all the past “agreements” made with him – without elaborating what those were. He had made frequent trips to Delhi last year where he met with leaders of the ruling Hindu nationalist BJP. While Nepali leaders have brushed off his call and clarified that there was no hidden agreement made with him, many view that the former King is aiming for a comeback to power.

On the other hand, a faction of hardliner Maoists - the Chand-led CPN (Maoist) - has revived conflict era activities such as seizing goods from hoarding factories and lands to distribute among the general public and landless squatters. The party has rallied a good number of former Maoist soldiers to sustain the legacy of the ‘people’s war’ and to demand an all-party conference to resolve contentious constitutional issues. The Government is also facing difficulties to control regional and ethnic forces seeking secession or greater autonomy. The police has repeatedly arrested Madhesi activist CK Raut, an emblematic advocate for a peaceful route to independence for the Southern plains (Madhes), after he was charged with sedition for fomenting a secessionist campaign. His arrests have drawn fierce criticism within and outside Nepal. A nation-wide movement of indigenous peoples’ organizations across political lines, led by human rights activist Padma Ratna Tuladhar, has also continued protests amidst police suppression. They have been demanding a federal system with preferential rights on natural resources for indigenous peoples as well as the recognition of their right to self-determination, which was watered down in the Maoist federal proposal.

All above forces have kept the major parties on the hook for reaching a consensus on the constitutional draft, knowing that failure could plunge Nepal back into renewed conflict.

Personal Aspirations

The emergence of UML Chairman KP Oli as a powerful leader in the last two years has polarized the ruling and opposition alliances as well as the Nepali society like never before - with PM Koirala merely standing by proving his lack of authority and influence. Following criticisms from his own party to take a bigger role in writing the constitution, PM Koirala is now leading the negotiations while Oli is in bad health.

On the other hand, even though the NC has decided to support continued dialogue, their position on disputed issues has barely changed. Thus, PM Koirala seems to be using the talks to merely prolong his stay in power until the party’s convention in September, where he might vie for party presidency again, towards continuing the Koirala oligarchy in Nepali politics. Nonetheless, if Oli and the UML – that adamantly continues to push for deciding on unresolved constitutional issues through voting – had it their way, the talks would not have been possible at all. They have even threatened to quit the government if the NC was not ready to push the voting process in the CA. As a prominent Nepali political analyst has put it, “Oli believes that a majoritarian constitution will catapult him politically, with the backing of the majority of the hill vote.” His immediate reason to push for voting is his ambition to become the PM of the new government. As per the NC-UML pact, the current government was formed to function only until the promulgation of the new constitution. That will be followed with voting in the CA/Legislative Parliament on the leading posts, including that of the PM, before the new constitution comes into effect. Thus the new constitution will not entail new general elections, as it is the current CA that – with likely changes in the leading posts - will continue to function as a Legislative Parliament until the next general elections.

While nothing is set in stone, KP Oli’s political expectation is that the ruling coalition will support him to become the next PM as the UML candidate, just as it supported Koirala to take the post in 2013 as the NC candidate. Since the ruling coalition holds the majority in the CA, they can technically stick to the pact, provided the coalition survives the controversies of the much delayed constitution drafting process.

At the same time, the dynamics of the opposition alliance - that Maoist chief Prachanda is having a hard time to manage - has also shaped the recent dialogue. Many hardliners in the alliance, including Maoist second in command and key ideologue Baburam Bhattarai, push for further protests claiming that the ruling parties’ appeal for dialogue is nothing but a strategy for foiling the protests. The breakaway Maoist faction CPN-Maoist, which led an alliance of parties that boycotted CA elections, has also been pressing Prachanda to walk out on the CA, saying that the CA cannot produce an inclusive ‘people’s constitution’. The two Maoist parties have now begun a party reunification process. Thus, it is only Prachanda himself and few others in the opposition, who see value in dialogue. A telling example that the opposition alliance announced month-long protests on March 15 – the same day, PM Koirala and Prachanda were entrusted to hold decisive talks.

Narrowing differences?

Recent negotiations have been built on the January 19 understanding of the major parties that was reached on the basis of the joint proposals of the ruling and opposition alliances. The main contention revolved around the issues of federalism, system of government and the electoral and judicial systems, including the Constitutional Court.

In the federalism debate, Maoist leaders had reportedly consented on the status of six states, provided that the ruling parties agree to give them “mixed” names, taking both geography and identity into account. However, the ruling parties were not convinced by the proposal. Leaders are reported to be at odds about five districts in Southern Nepal that have very mixed demography of ‘hill and plain people’. Competing personal interests of NC, UML and Madhesi leaders with affected constituencies have made it difficult to decide on whether those districts should be defined as centrally governed ‘union territories’ or as ‘disputed districts’ under a federal commission.

A reformed parliamentary system with an executive PM and a figurehead President as the head of state was agreed as the model of government for the new constitution. The Maoists, who would normally favour a directly elected president as executive chief and the head of state, only agreed to this system of government in return for an overall agreement on federalism and the electoral system. Under such system, a no-confidence motion could not be filed against an elected prime minister for at least two years and the successor should also be proposed in the motion – making it a ‘constructive’ one. The Maoists contend that the ruling parties’ proposal is not adequate to prevent horse-trading politics resulting in instability, which has long plagued Nepal’s multiparty experience.

The parties had also consented to a mixed electoral system, while they were at loggerheads about the percentage of seats to be elected through direct and proportional representation (PR) electoral system. The ruling parties had proposed a proportionally elected upper house with a 65:35 split of direct and proportional representation in the lower house, while the opposition called for mixed-member proportional (MMP) representation electoral system for greater inclusion. 

There also seems to be an agreement on having a Constitutional Court for 10 years as opposed to giving the Supreme Court authority to address constitutional disputes, as proposed earlier by the ruling parties.

Even though the 19 January understanding was broken amidst the blame-game of the leaders; earlier this month cross-party negotiations resumed on these proposals but are yet to make any headway.

Towards another confrontation 

With a new phase of opposition protests now announced, Nepal is headed for another confrontation on the streets. The protest programs include boycotting and obstructing public functions attended by the PM and the ministers, shutting down government offices and enforcing blockades as well as nation-wide general strikes. Similarly to past protests, the Maoists will mobilize their paramilitary youth wing – the Young Communist League (YCL). As security forces under the UML-led Home Ministry have previously shown high-handedness even in less stern protests, there is a likelihood of violent clashes erupting again.

Prachanda and PM Koirala have said to continue the dialogue and if they are able to make progress before the shutdowns and blockades, a confrontation could be avoided. However, if the ruling coalition unilaterally resumes the CA procedures, a confrontation might occur again – even in the CA. To avoid that, the next step of the ruling coalition should be to withdraw from the Questionnaire Committee to put off the voting process in the CA, while the opposition should in response call off the new protests. This could lead to an environment more favorable for constructive talks on contentious constitutional issues – that at last need to go beyond mere face saving or time buying. Consensus must be reached before external forces and personal aspirations of the leaders derail the long drawn and much invested constitution building process.

Prabindra Shakya is associated with various NGOs in Nepal for research and advocacy on peacebuilding and human rights, with particular focus on indigenous peoples and minorities