Nepali Women’s Interim Protection

Ramona Vijeyarasa

The government of Nepal recently became the first in the region to recognize women's fundamental right to reproductive health in its Interim Constitution. Will reproductive rights make the final cut?

The opportunities
to place reproductive rights squarely into a country’s constitution are rare — and when they come up, they should
be exploited to their full advantage.

Constitutional guarantees provide
women judicial protection, so that when women’s reproductive rights are violated, whether through preventable
maternal deaths, being denied access to reproductive health care or discriminatory
treatment when seeking reproductive health services, women have standing under domestic law to challenge the violation. Reproductive rights
protections in constitutions also influence political decision-making
and legislative priorities, in turn leading to budgetary allocations
and practical protections for women’s reproductive rights.

In January
2007, the Government of Nepal adopted the Interim
Constitution
which
incorporates health as a fundamental right of the people, recognizing
that "every woman shall have the right to reproductive health and
other reproductive matters"
as a fundamental right.
This recognition marked the first
time
that a government
in the region had explicitly recognized women’s reproductive rights
as fundamental rights in a national constitution.

The reforms
reflected a culmination of efforts of a range of advocacy groups, including
the Nepal-based Forum
for Women, Law, and Development

and the Legal
Aid and Consultancy Center
,
as well as the New York-based Center
for Reproductive Rights (CRR)
.
In fact, in a letter to the Interim Drafting Committee in July 2006,
CRR suggested that Nepal emulate some of the most progressive aspects
of the South African Constitution with regards to reproductive rights. (The South Africa Constitution guarantees the right of access to
health care, explicitly including reproductive health care and protections against direct and indirect discrimination on the basis
of a range of grounds, including sex, gender, pregnancy or sexual
orientation.) CRR also highlighted to the Drafting Committee Nepal’s maternal mortality
rate, one of the highest in the world at 830
per 100,000
births
in 2005. In their view, the constitutional clause needed to recognize
the right to make decisions about reproduction, the right of access
to health care services as fundamental rights, and prohibit direct and indirect discrimination on grounds that include sex, gender,
pregnancy, marital status, age and culture.

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While the
goal of explicitly protecting reproductive rights in the Interim Constitution
has been achieved, the responsibility for the new Constitution is in
the hands of a new Constituent
Assembly
, a 601-member
body elected in April 2008, more than one-third of whom are women. The
redrafting should be finalized by May
2010
.
In the meantime, advocates continue to push to maintain the rights-protective
provisions that exist in the Interim version. We can only hope that
Nepal does not see a repetition of the Constitutional reform process
in Timor-Leste. In August 2001, prior
to the constituent elections, a collaboration of women’s groups
developed a charter of women’s rights, which stated that, "[t]he State must provide reproductive health
care for women." While the new Constitution included some aspects
of the charter, the reproductive rights language was not included. Instead, the Constitution only guaranteed the right
to health in more general terms.

The fact
that reproductive rights as fundamental rights have been included in
the Interim Constitution, and may be kept in the final draft, is only
a starting point. Criticism has been directed at the Interim Constitution’s
provisions for their lack of substance. A report released by the Center for Human
Rights and Global Justice (CHRGJ)

in 2008, on Dalit rights in Nepal, recommends that the new Constitution include the reproductive rights guarantees found in the Convention on
the Elimination of All Forms of Discrimination Against Women (CEDAW)
and the International Covenant on Economic, Social and Cultural Rights
(ICESCR). Specifically, CHRGJ has pushed for the Constitutional guarantees
to be elaborated upon and include: the right to access a full range of high
quality and affordable health care, including sexual and reproductive
services; equitable distribution of all health facilities, goods and
services (including access to "essential medicines"); the right
to control fertility; and the right to obtain family planning information, counseling,
and services without discrimination.

The need for
ongoing lobbying of the new Constituent Assembly members to protect women’s
health and rights in the new constitution is reflected in the work of WOREC Nepal and
Women’s Reproductive Rights Program/CAED
. The group jointly organized a four day Review and Orientation Workshop, followed
by a National Consultation, in May 2008 at Kharipati, Bhaktapur, timed
to coincide with International Women’s Health Rights Day on the 28th of May. The occasion was used to advocate for more specific guarantees
of a range of reproductive rights protections, including maternity leave,
prevention of anemia amongst pregnant women, improved financial and
physical resources, improved access to family planning programs amongst
the poor and people of oppressed or disadvantaged classes, as well as
increased discussion of the reproductive rights of men.

The specific
situation of Nepal’s history of conflict and its impact on reproductive
health was also discussed, including alarming maternal mortality rates,
bereavement resulting from the death and disappearance of children,
and sexual violence.

As political,
judicial, administrative and other reforms are undertaken during any
post-conflict period, it is important that social and economic reforms,
such as reproductive rights and reproductive health, are not left off
the table. Post-conflict constitution-making presents a fertile opportunity
to advocate, guarantee and normalize reproductive rights.

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