Constructing SSLM: Insights from Struggles over Women’s Rights in Nepal

Abstract

This paper explores the extent to which Nepali women are able to defend, enforce and/or expand their rights through engagement with the legal system. Research with two different women’s NGOs shows that it is extremely difficult for an individual woman – particularly one who is poor and marginalised – to engage with the legal system, but it becomes possible if undertaken with a women’s NGO that can effectively act as an intermediary. Drawing on Epp’s notion of a “support structure for legal mobilisation” (1998), this paper considers the broad range of resources necessary for poor and marginalised women aided by NGOs to engage with the judiciary. In doing so, it highlights the critical role of normative values and behaviours in facilitating or impairing legal mobilisation by women and the political, technical and social capacities of NGOs. The paper argues that while the legal framework is an important element in the realisation of women’s rights, legal engagement should nevertheless be seen as one part of a multi-pronged strategy.

Keywords:

• Nepal
• women’s rights
• NGOs
• legal mobilisation

Development institutions, including international development agencies and non-governmental organisations (NGOs), have increasingly adopted the language of rights in their policy and practice (Cornwall and Molyneux, 2008, p. 1175). In recent years this trend has been observed in Nepal where “rights talk” now pervades the mission statements and purported goals of many women’s development NGOs (non-governmental organisations). “Rights-based approaches” to development suggest that the legal system is a key means through which the poor and marginalised, including women, can challenge inequalities and pursue rights (Joshi, 2010, p. 622). Nepali lawyer and women’s rights activist, Sapana Pradhan Malla (2010, p. 6), suggests that courts

…not only play critical roles in protecting fundamental rights guaranteed … [by the constitution] but also in expanding the ambit of such rights through judicial interpretation based on internationally accepted principles thereby effectively translating and embedding treaty jurisprudence into national jurisdiction.

In the context of Nepal, where the status of women impacts on their ability to realise rights, it is pertinent to ask to what extent women – particularly those who are marginalised and/or vulnerable – are able to successfully defend, enforce and/or expand their rights through the legal system. This paper draws on empirical research¹ with Kathmandu-based women’s NGOs to argue that there are particular conditions under which it is possible for women in Nepal to engage with the legal system. Poor and marginalised women in Nepal face enormous difficulty in engaging with the judiciary, but an analysis of these cases suggests that they can do so effectively if they act through intermediaries such as women’s rights NGOs that command the resources required to support legal action.

In presenting this argument, this paper draws on Charles Epp’s (1998, p. 3) notion of a “support structure for legal mobilisation” (hereafter SSLM).² Epp (1998, p. 3) suggests that in order to launch and sustain a court case over time (i.e. legal mobilisation), access to significant resources such as “rights-advocacy organisations [particularly ‘repeat players’ who have extensive experience in using the legal system], rights-advocacy lawyers, and sources of financing” (from private sources but particularly from government sources) are necessary. Some scholars have suggested that when the political and institutional environment makes it possible for individuals and NGOs to access the court system, the SSLM (including rights-advocacy organisations such as NGOs) will automatically emerge (see Brinks and Gauri, 2008). It is not clear, however, that this assumption is correct. Research from Nepal suggests that there are particular conditions that lead to the emergence of SSLMs.

The paper explores SSLMs in the context of women’s rights in Nepal through a comparison of two different Kathmandu-based women’s NGOs as separate case studies. As the case studies highlight, a broad range of resources are necessary in order for NGOs in Nepal to engage with the legal system. These include elite leadership, educated staff with knowledge of rights discourses and international human rights instruments, laws and treaties, legal advocates, connections to power brokers and the upper echelons within Nepali society, financial resources, and donor backing. The paper illustrates the way in which only one of the two focus NGOs demonstrates the capacity to provide SSLMs to Nepali women because it is able to access these resources. Moreover, while in Epp’s formulation NGOs are a significant resource for legal mobilisation (i.e. they constitute an SSLM), research points to the way in which, in Nepal, support structures for NGOs themselves are critical to engagement with the judiciary.

The paper begins by briefly outlining the cultural and recent historical context of Nepal, including the status of women. It then provides an overview of the way in which the judicial system has considered women’s rights in Nepal, highlighting the way in which the new, post-1990 democratic environment opened up spaces (albeit narrow spaces) for women to enforce and/or expand women’s rights through the courts. This section focuses on the legal challenges with respect to women’s right to property, which was the most controversial and intensively debated issue in the new democratic period, sparking the mobilisation of women’s NGOs and activists around women’s rights and gender justice. This reform movement highlights Nepal’s legal environment and the complexities of the plural legal frameworks within this context, particularly with regard to women’s claims. It underscores the challenges of transplanting global ideas (i.e. Western-inspired human rights) into specific settings with particular cultural values, norms and practices, including existing rights regimes. Further, the cases relating to women’s property emphasise the critical role of mobilisation outside the court system, including advocacy and awareness campaigns, thereby underscoring the importance of a multi-strategic approach in the quest for the realisation of women’s rights. A brief overview of the history of women’s mobilisation around women’s rights provides contextual background for the final section of the paper where I draw on data from ethnographic fieldwork with two women’s NGOs conducted in Kathmandu between late 2009 and late 2010. The paper brings a qualitative approach to this topic, grounding the legal perspective of rights within the realities of women’s lives, which adds contextual depth to an otherwise relatively abstract topic.

A Cultural and Historical Overview and the Status of Women in Nepal

Nepal is a small, multi-ethnic, multi-lingual, predominantly Hindu nation of 27 million people comprising 125 different caste/ethnic groups (Government of Nepal, 2011). During the Rana regime (1846–1951) society was ordered according to a complex caste and ethnic schema that was codified in the Muluki Ain, the main body of law in Nepal for almost a hundred years (1854–1951) (Höfer, 1979). Influenced by Hindu religious scripture and customary law, the codification prescribed a set of principles based on the caste system through which the people of Nepal could be classified (Höfer, 1979). While this hierarchical substratum was abolished in 1963, caste, though diluted, remains highly institutionalised (Liechty, 2008).

Nepal has experienced tremendous upheaval since 1990, when a democratic movement, the “people’s movement” (jana andolan), overthrew the repressive, autocratic Panchayat regime. The Nepali state was forced to adopt a multi-party democratic constitution, giving rise to high expectations for political, societal and socioeconomic improvements among the people of Nepal (Liechty, 2008). Nevertheless, since 1990 Nepal has continued to experience a prolonged and tumultuous period of political turmoil and social flux. 2006 signalled the end of a decade-long civil war, a democratic uprising (jana andolan 2), and the abolition of the monarchy. In April 2008 a new Constituent Assembly (hereafter CA) was, for the first time, elected by the people of Nepal and tasked with drafting a new constitution – a new, purportedly more inclusive and liberal constitution based on the concerns and interests of elected members. In May 2012, however, the CA failed to deliver a new constitution – mostly due to an inability of political parties to agree on issues related to the restructuring of the state – and was thus dissolved. A new CA (also acting as the current parliament) was elected in November 2013 and a new prime minister was elected in February 2014, raising hopes for political stability.

Despite more than 50 years of development aid Nepal continues to be one of the world’s poorest countries. Approximately 25 per cent of the population lives below the poverty line, although there are vast disparities in income and wealth, particularly between urban and rural regions (Government of Nepal, 2011). Inequalities also exist in social identity based on factors such as caste, ethnicity, region of origin, and gender, which significantly “determines access to and control over economic, political, and cultural resources” (Pradhan and Shrestha, 2005, p. 2). Gender crosscuts all of the above categories, including religious beliefs, although it varies by caste and ethnicity.

Women in Nepal generally maintain a lower status than their male counterparts, ranking lower than men in almost every social indicator, although gender inequalities vary according to social group and region (Government of Nepal, 2011). While it is important to emphasise the heterogeneity of women’s experiences, identities, identifications and relationships, including the varying patriarchal arrangements within those multiple and varied communities, the patrimonial social system and the division of labour between women and men significantly restrict women’s access to education, employment in the public sphere, skill development and decision-making processes – including access to the legal system – regardless of caste and ethnicity (Pradhan and Shrestha, 2005, p. 12). Particularly for women belonging to high-caste groups, tightly prescribed gender norms based on high-caste Hindu religious texts structure women’s status and identity in relation to men. Moreover, women are vulnerable to domestic violence, sexual harassment, rape, trafficking, early marriage, a lack of economic resources and a lack of citizenship, among others. Nevertheless, women in Nepal have long been agitating for rights for women. However, as the next section illustrates, it is only relatively recently that space opened up for women to pursue rights-related causes through the court system.

It is important to highlight that while free legal aid has been available to Nepali citizens since the enactment of the Legal Aid Act in 1997, the majority of the targeted groups, including “the poor, marginalised, disenfranchised, and women and children”, are unable to access it (Bhandari and Karki, 2005, p. 50). There remains a lack of awareness of its existence, who provides it and the process of obtaining it (Bhandari and Karki, 2005, p. 50). Further, there is a lack of coordination between and among legal aid providers (ibid). Of the legal aid providers, NGOs are deemed to be the most effective although they are not without their weaknesses (see ibid).

Nepal’s Legal and Political Landscape and Women’s Rights

The judicial system only started to seriously consider women’s rights in the last two decades following the adoption in 1990 of Nepal’s first democratic constitution that ensured the elimination of discriminatory laws against women. The Constitution of the Kingdom of Nepal, 1990, included an article that guaranteed equality between men and women as a fundamental right,³ thereby opening the way for women’s rights activists to challenge gender discriminatory legal provisions through the Supreme Court (Subedi, 2009, p. 37). In addition, the new democratic government initiated the recognition and implementation of treaty jurisprudence including the ratification of various international human rights instruments and treaties specific to women, notably the Committee on the Elimination of Discrimination Against Women (hereafter CEDAW), without reservation, in 1991 (Pradhan Malla, n.d.; Subedi, 2009, p. 42). The Nepal Treaty Act, enacted in 1990, ensures that preference is given to international human rights provisions in the event that there is a contradiction with the provision of domestic laws (Subedi, 2009, p. 37).

Even though such changes were significant, it was not until after the 2006 democratic movement and the Interim Constitution of 2007 that women’s rights began to be meaningfully addressed by the judiciary to comply with the 1990 constitutional guarantee of gender equality. The legal and political mobilisation of women’s advocates and NGOs leading up to this was critical to positive changes in public, political and legal attitudes to women’s rights, and indeed, changes in discriminatory laws themselves. In 2007 the Gender Equality Act was enacted and the Interim Constitution was declared by the re-instated Parliament in 2007, eliminating many gender discriminatory laws, setting women’s representation in the legislative Parliament at 33 per cent⁴ and, significantly, granting equal property rights for women (Subedi, 2009, p. 51). With this background I now turn my attention to the post-1990 legal cases with regard to women’s right to property to highlight the legal context in which women’s rights are pursued.

Since the 1990s, Public Interest Litigation (hereafter PIL) has been a key strategic tool used by women activists for the enactment and/or enforcement of women’s rights in the legal system. The first PIL filed by a woman relating to women’s rights was in 1983; however, with the promulgation of the 1990 Constitution and a more enabling political environment there was an opening of the floodgates of petitions by women advocates and activists challenging discriminatory laws against women (Pradhan, 2013, p. 165). These cases concerned a range of issues relating to women’s rights and gender justice such as marriage, divorce, ancestral property, sexual harassment, marital rape and citizenship (Pradhan, 2011).

The first major constitutional challenge of the liberal era in post-1990 Nepal was the case of Meera Dhungana v HMG Ministry of Law, Justice and Parliamentary Affairs⁵ (1993) regarding women’s right to property (Kunreuther, 2009, p. 557). Using what Joshi (2010, p. 627) calls a “proactive strategy”, the petitioners filed a PIL writ challenging the provisions on inheritance under the Muluki Ain (National Civil Code, 1963) that “excluded daughters from inheriting property … [and] restricted rights of married women’s inheritance” (Pradhan Malla, 2010, pp. 4–5). The case resulted in the Supreme Court issuing a directive two years later to introduce an appropriate Bill to Parliament to review the law relating to property rights, but it also emphasised a reluctance to change prevailing Hindu, patriarchal societal practices and values (Pradhan Malla, 2010, p. 4). This negative response to gender equality was seen time and again in the numerous cases relating to women’s property rights filed with the court (Subedi, 2009, p. 45).

The court’s anxiety in relation to possible changes to the status quo (i.e. legal changes to cultural practices that are guided by patriarchal norms and values and deny women their rights) points to the work of the legal anthropologist Merry. Merry (2006, p. 6) talks about the way in which the “global-local divide” – the divide between global human rights and local appropriation of such rights – “is often conceptualised as the opposition between rights and culture, or even civilisation and culture”. In the context of Nepal the notion of “culture” forms an integral part of the human rights discourse, but it is also invoked in an attempt to resist human rights. For instance, in relation to a PIL relating to women’s property, the court declared, “the things to be observed are social structure, culture and tradition of country” (Subedi, 2009, p. 47). The cases relating to women’s property “posed serious threats to the gender relations that were a foundation of Hindu national patrimony”; thus, challenging the status quo threatened to disrupt established hierarchies and a range of patriarchal arrangements (Kunreuther, 2009, p. 546). Further, conservative opponents of the legal reforms appealed to existing property laws “as embodiments of ‘Nepali tradition and custom from time immemorial’” – despite the fact that the property laws under consideration were only mandated in 1964 – thereby resisting women’s rights by claiming to be defending culture (Kunreuther, 2009, pp. 548–49; Merry, 2006, p. 6).

On the other side of the legal contest relating to women’s property rights, petitioners invoked culture as discriminatory against women and a barrier to the realisation of women’s rights. As prominent lawyer and women’s rights activist Sapana Pradhan Malla (n.d, p. 2) notes:

Harmful or discriminatory cultural practices need to be recognised as a crime against women through the formal expression of the law … if it is discriminatory culture, universality of human rights standard should be applicable … CEDAW and other human rights instruments should be used broadly in dealing with relevant cases for making [the] state accountable.

Here we see the opposition between culture and rights in which culture was invoked as discriminatory in an effort to expand and enforce women’s rights. This points to the potentially transformative power of the concept of human rights and its “analytical normativity” (Goodale, 2007, p. 7) in challenging local cultural norms and existing power relations.

Furthermore, Pradhan (2013, p. 176) highlights the way in which the distinction was made during the court cases between a traditional, barbaric society based on Hindu norms and values and a modern, civilised society with accepted norms of human rights. The opposition between culture and rights points to the inevitable tension between the general and the particular. Human rights frameworks conceive of general principles based on legal rationality, promoting a “unified modernity” and ideas of “individual autonomy, equality, choice, and secularism” while in particular localities, histories and contexts are important (Merry, 2006, pp. 3–4). Indeed, as the Supreme Court’s observations cited above highlight, the cases were not simply about the court upholding women’s constitutional rights to equality and gender justice. As Pradhan (2013, p. 167) notes, the court cases were “cultural contestations over gender relations and different visions of society”, particularly concerning whether to retain existing social structures and customs based mainly on Hindu norms or to adopt global norms of international human rights. Moreover, these cases exemplify the difficulties in transplanting universalist notions “embedded in cultural assumptions about the nature of the person, the community, and the state” (Merry, 2006, p. 3) into a specific context such as Nepal where distinctions such as class, caste, gender and ethnicity, among others, are significant.

Fundamental to this discussion is the legal context within which these cases were filed. In his analysis of women’s rights cases in the Supreme Court post-1990, Pradhan (2013, p. 166) draws on the notion of legal pluralism, “the coexistence and interaction of multiple legal orders” (Meinzen-Dick and Pradhan, 2002, p. 4), to describe the way in which the petitioners, respondents (the Nepali Government), and Supreme Court judges drew on various laws, including the Constitution, international law, customary law and Hindu norms, to support their arguments. Elsewhere, Pradhan, in collaboration with Meinzen-Dick, has emphasised the dynamism of law, noting the way in which “laws are subject to negotiation, reinterpretation, and change. The way in which people call upon different legal orders, and the negotiation between them, provides some of this dynamism” (Meinzen-Dick and Pradhan, 2002, p. 7).

Pradhan (2013, p. 175) notes the way in which various laws can be in opposition to one another, pointing to two opposing laws with respect to women in Nepal: (i) women as citizens with rights as set out in the 1990 Constitution, thereby recognising women as having an independent legal identity and thus able to challenge the law; and (ii) women as daughters, mothers, sisters etc. as laid out in the family law in the Muluki Ain (National Civil Code, 1963), which is heavily influenced by upper-caste Hindu religious scriptures and assumptions about gender, sexuality and property. Gilbert has shown the way in which the Muluki Ain “organises women’s rights, both in family membership and in property, around the core of primary rights assigned to their fathers or husbands” (1992, p. 757). As Pradhan Malla (2010, p. 2) explains:

Individual identity of women as citizens is often not granted formal recognition as women are always considered as subjects to be given away or go away from their natal families and birthplace. Rights are therefore created where the women go, mainly on the basis of marital status and on the notion of dependence.

This passage highlights the way in which women in Nepal are constructed in particular ways within each law. For example, international law and human rights discourse construct women in secular, abstract, universalist terms, devoid of identity or culture. Pointing to the concept of human rights, Donnelly (2003, p. 16) states that through this notion “individuals [are constituted] as a particular kind of political subject”. Goodale (2007, p. 7), however, argues that “the normativity of the human rights concept configures or shapes … analytically, not empirically … the concept of the individual (not particular individuals) in any one place or time” (emphasis in original). By contrast, the Muluki Ain’s representation of women’s identity as relational to men is based on Hindu norms and beliefs (Pradhan, 2013). Pradhan (2013, p. 177) suggests that disputes and arguments in the Supreme Court are always made in the context of legal orders based on both religion such as Hindu norms (Muluki Ain) and international law based on a different set of principles, for example international human rights. Further, Meinzen-Dick and Pradhan (2002, p. 7) point to the way in which:

different legal orders should not be seen as isolated from one another, but as interacting, influencing each other, and “mutually constitutive” (Guillet 1998). How exactly these different legal orders interact and influence each other depends on power relationships between the “bearers” of different laws.

Nevertheless, it is important to underscore the point that any discussion of power relations in Nepal, particularly in the context of women’s rights, needs to take into consideration the structure of gender norms and relations where power relations are highly unequal.

Political Activism: Women’s NGOs and Rights Advocates Mobilise for Women’s Rights

Pradhan Malla (2010) suggests that the achievements of women’s NGOs and activists in defending women’s rights to property through litigation, as outlined above, were the result of a “two-pronged approach”. The first was challenging discriminatory provisions under domestic laws, rules and policies through PILs (Pradhan Malla, 2010). Here we see the workings of an SSLM at play in the form of litigation by experienced women’s rights legal advocates and NGOs. The second was the initiation of advocacy by NGOs in the “submission of an initial report to the Expert Committee on CEDAW that allowed the assessment of the implementation status of the CEDAW Convention within Nepal” (Pradhan Malla, 2010). It is important to highlight the way in which political mobilisation outside the court system, including the intense and relentless campaigning by women’s rights advocates and NGOs to press the government to introduce appropriate bills in Parliament, was critical to the realisation of women’s rights at the legal level. Indeed, knowledge of international laws and treaties was critical to this campaign. Moreover, the seminal case relating to women’s property was a critical moment for women’s activism in Nepal insofar as it initiated the commencement of political mobilisation outside the court system by a range of social actors seeking to change women’s subordination within society. The case also sparked intense debate across Nepal about women’s rights including sexuality, property and marriage, among others (Subedi, 2009).

The 1990s was a time of substantial change in Nepal during which there was a more favourable policy environment, increased international donor interest in NGOs, and a burgeoning middle class, all of which increased the accessibility of the NGO sector to the Nepali people – both as recipients of NGO programs and as staff members of these organisations (Heaton-Shrestha, 2004, p. 42). In addition, during the 1990s, campaigns for women’s rights intensified in the international arena, which in turn influenced the mobilisation of women’s rights NGOs in Nepal. The newly enabling political environment post-1990 opened up opportunities for women’s rights NGOs and activists in Nepal to network with national and international organisations with similar interests and objectives (Bhadra, 2001). Lobbying groups were organised and women began to mobilise around issues relating to women’s rights in a range of arenas including conferences, delegations, meetings, demonstrations and the media in an effort to pressure the government to promote and protect women’s rights (Bhadra, 2001).

Given this more enabling environment, what have been the implications for mobilisation at the judicial level? To explore this question I now turn my attention to two case studies drawn from ethnographic research in Kathmandu.

“Opening the Iron Gate”: Mobilising for the Rights of Widows

In childhood a female must be subject to her father; in youth to her husband, when her lord is dead to her sons, a woman must never be independent.

– The Laws of Manu⁶

(WHR, 2010, p. 7)

Prominent women’s activist Lily Thapa suggests that “there is a lot of rhetoric of women’s rights but only on paper – not in reality. It is still very hard for women in Nepal” (interview with author, 2010). Nevertheless, Lily Thapa’s ongoing court action through her NGO in an effort to change discriminatory laws against widows is testament to her belief in the power of the judicial system. She notes, “we try to open the iron gate by changing the discriminatory laws [against women] through court with the belief that women will be empowered enough to demand for their rights in future” (email communication, June 2012). Yet what enables Lily Thapa to engage with the legal system in an effort to improve the lives of widows?

Lily Thapa – a highly educated, high-caste woman from a large, highly respected Kathmandu family – is a veteran of agitating for women’s rights in Nepal, having founded Women for Human Rights – Single Women Group (hereafter WHR) in 1994. WHR is primarily concerned with the issues and rights of widows in Nepal. Because of the stigma associated with the word “widow” WHR passed a national declaration in 2001 to use the term “single women” instead of the word “widow”.⁷ For Hindu women in particular, to be widowed is to face a social death, although the severity of the experience of widowhood is greater for high-caste women.⁸ Her status as a widow means that she is no longer regarded as a “good woman” by her family and community (Skinner and Holland, 1998, p. 91). A local moral order based on Hindu religious ideologies drawn from Brahmanical writings and teachings, the notion of the “good woman” refers to the ideal life path of women (Skinner and Holland, 1998, p. 91). In this life path, the woman’s roles are focused on the family and the most cherished characteristics are those that support the patriarchal family (Skinner and Holland, 1998, p. 91).

Marriage, particularly, is central to this ideal life path, as prolific Nepali academic and women’s activist Acharya (2003) notes: “marriage becomes the overwhelming factor determining all her life options. This [is] reinforced by all round social norms and legal structures, everything else is secondary to marriage”. Those women whose husbands die before them are thus seen as deviating from the ideal life path of the “good woman”. Indeed, a widow is regarded as an aberration, as someone with bad fate and bad luck and she is often blamed for her husband’s death. Regarded as invisible, she is relegated to the margins of society where she typically faces discrimination, prejudice and abuse (WHR, 2010).

It was Lily’s own experience of being widowed that was the impetus for WHR. Following the death of her husband in 1990, Lily’s life changed dramatically as her status quickly shifted from respected married woman to widow, as someone to be treated with suspicion and disdain, as she highlighted during one of our conversations:

When my husband was alive everybody not dare to do anything to the wife. The dignity, respect and everything… I get that while my husband is alive, no? The second, the minute after my husband’s death I would not get that auspiciousness, honour.

In 1992, two years after her husband’s death, Lily initiated an informal weekly support group for widows in order to provide a space in which they could openly express their sorrows and difficulties. In the beginning, seven widows gathered to share their grievances and provide support for each other. The number gradually increased to up to 50 widows and in 1994 the group was formally registered as an NGO. Currently WHR is one of the largest women’s NGOs in Nepal with more than 100,000 members (WHR, 2014). The organisation is far reaching with over 1,550 groups in 73 of the 75 districts of Nepal (WHR, 2014).

WHR’s focus on the formal recognition of the rights of widows was apparent during my first meeting with Lily Thapa at the organisation’s headquarters in Baluwatar – an affluent area of Kathmandu. Lily talked at length about WHR’s legal action in relation to expanding widows’ rights, pointing to numerous human rights articles and instruments such as CEDAW and United Nations Security Council Resolution 1325.⁹ It was immediately clear that WHR was working within the global discourse of rights, and further, that Lily Thapa was highly conversant in the language of human rights, including the numerous human rights instruments. She noted the way in which “things appear to be good for women on paper – provisions are made however this is only on paper – in reality things are not like this. WHR tests these things in court”.

As a result of the organisation’s litigation efforts: (i) widows no longer require the consent of their adult sons and unmarried daughters to sell or hand over property ownership; (ii) widows do not need to reach the age of 35 to inherit their husbands’ property; (iii) there is no longer government policy to award money to men who marry a widow; and (iv) widows no longer need permission from a male family member to obtain a passport (Peace Network, 2012). WHR’s litigation record highlights the organisation’s experience with the judiciary which, in turn, constitutes a key resource for the SSLM. Indeed, Epp (1998) has underscored the way in which the presence of “repeat players” – in terms of extensive experience with the court system – forms a key element in the SSLM needed to access and utilise the judiciary.

In order to engage in litigation, WHR draws on a range of resources including staff, legal advocates, far-reaching supporters and extensive networks. These form an important part of the support structure necessary for the organisation to pursue rights for widows through the judiciary. WHR employs 35 staff members, comprising 11 widows, 18 female staff members who are not widows (described by WHR as non-widows) and 6 male staff members – of whom many are highly educated. For example, the organisation’s female legal advocate holds Masters Degrees in Law and Political Science and is currently studying for her PhD in Law focusing on human rights and widows. Here we see evidence of what Epp (1998, p. 5) has identified as a key resource for SSLMs in the form of a sympathetic rights-advocacy lawyer who is “willing and able” to engage with the judicial system.

Critical to WHR’s capacity to provide SSLMs to widows are the organisation’s numerous and wide-ranging connections including “partners”,¹⁰ “contributors”,¹¹ advocates and supporters¹² – ranging from large international donor organisations and local Nepali businesses to both Nepali and foreign academics and women’s rights advocates. Indeed, the organisation is well funded, thereby providing it with the necessary economic resources to litigate – which Epp (1998, p. 5) highlights as another critical element required for rights claimants to engage in and sustain ongoing court action. Tamang (2003) notes the way in which the cycle of funding for Kathmandu-based NGOs is “circular and self-referential”, based on “an established funding track record”. She suggests that the “continuous transfer of resources to these ‘proven’ organisations” is legitimised by the fact “that they already receive funds” (Tamang, 2003). Here we see the importance of a proven funding track record to an NGO’s financial resources, which in turn impacts on an organisation’s capacity to litigate. As a “repeat player” in terms of both litigation and receiving financial backing, WHR has the capacity to provide the necessary SSLMs to pursue single women’s rights causes through the courts.

WHR is also well resourced in terms of the current global discourses on rights, including international law and the various human rights instruments and treaties, and Nepali law with respect to laws pertaining to women. Further, WHR’s public acknowledgment of the government’s ongoing support highlights the organisation’s connections with the upper echelons and power brokers within Nepali society. Given that WHR has long been lobbying the government for change at the policy level – particularly in regard to legislation pertaining to the rights of widows – these connections are not surprising. Lily Thapa (email communication, June 2012) highlighted the importance of such connections, noting: “in our country where there are more influences from political party [sic], it will not be possible without mobilising them that’s why we sensitise them a lot on issues”.

While WHR mobilises its doctrine of anti-discrimination and improved status of widows through litigation, it also employs a range of other strategies to support this legal action and to achieve changes in attitudes towards widows. These strategies include awareness campaigns through newspaper and magazine articles, books, pamphlets and newsletters, forums and focus group discussions. Since 2001 WHR has conducted national workshops aimed at “institutionalising the concerns and issues of single women” through the narratives of widows from all regions of Nepal (WHR, 2010, p. 9). Government officials and media representatives attend these events, thereby significantly increasing the visibility of WHR and the plight of widows in Nepal. WHR also engages in capacity building programs, research studies on the status of widows, regional workshops, workshops relating to access to justice, and organisational development aimed at formulating strategies to identify future work and potential partners (WHR, 2010, p. 9). WHR has hosted two international conferences aimed at developing agendas and forums in order to provide a platform for voicing the issues of widows based on international human rights instruments. At the conclusion of the 2010 conference, WHR promulgated its own advocacy tool, “The Kathmandu Declaration”, aimed at raising awareness at the government level about the needs of widows.

Influencing public and political perceptions about the status of widows and raising awareness of widows’ rights has been at the forefront of WHR’s strategy from the outset. As Lily Thapa told me, “my mission was and still is to raise awareness about the plight of widows in Nepal and South Asia”. We can see from the earlier discussion relating to women’s property that public and political perceptions influence decisions made in the Supreme Court. As Joshi (2010, p. 622) points out, “even organisations engaged in litigation have to mobilise support and build alliances with a wider array of social and political actors in order to influence action in the legal arena”.

WHR was formed at a time when the concerns and issues of widows were not cast as women’s rights, in terms of the global, abstract notion of human rights. By using the framework of international law and the emergent global discourse on human rights and engaging in litigation in order for the rights of widows to be formalised, WHR has brought the issues of widows into the national mainstream. In turn, this has resulted in changing development discourse relating to widows’ rights and influencing changes (albeit slowly) to attitudes and beliefs within society. Lily Thapa’s own positioning and WHR’s wide-ranging legal advocates, supporters and connections provide the resources necessary for the organisation to challenge discriminatory laws relating to women, and single women (widows) specifically. Nevertheless, not all NGOs are able to access the necessary resources to provide women with the SSLMs to engage with the judiciary. While various constitutional and legal changes during the 1990s–2000s opened up a space for women and NGOs to pursue rights-related causes through the court system, as the experiences of the next women’s NGO illustrate, the SSLMs will not automatically emerge.

Women’s Rights at the Local Level

I have not heard of the word empowerment. I heard about women’s rights once on the radio but there are no women’s rights in Nepal. Apparently outside of Nepal there are women’s rights.

(20 year-old mother of one infant son, completed class 5, worked since age 6, migrated from rural Nepal to Kathmandu in 2007 after marriage)

The NGO that forms the focus of the next case study was a world away from the context of WHR, even though its head office was located only 20 minutes away by taxi. Sangam¹³ was relatively unknown within women’s development NGO circles and in the wider sector of development in Nepal more generally – to which I had access through friends and acquaintances. Nevertheless, despite its obscurity, Sangam was also “doing development”, and successfully so. Yet this NGO operated at a markedly different level from that of WHR. As a volunteer organisation, Sangam worked at the ground level – in the community and social spaces where women live. Sangam focused on the health and nutrition of pregnant women, young children under 3 years of age, and their mothers through its nutrition program. Nevertheless, the “empowerment”¹⁴ of women was a key component of its Kathmandu-based nutrition program and it is this aspect that I will be focusing on.

While NGOs typically rely on project-based funding from a variety of donor organisations and INGOs, Sangam received funding from just two INGOs, one of which was the primary source of funds. This INGO had been providing both financial and technical support since Sangam’s inception in the early 2000s. The NGO’s finances, programs and the day-to-day running of the organisation were closely monitored and managed by this INGO. As one Sangam staff member stated, “since we are donor-guided we have to agree to what the donors say … they make the rules and regulations and we have to work according to that”. Further, as a “donor-guided” organisation, there was little scope for Sangam to broaden its work, even though one senior staff member expressed identified needs in the community for the organisation to do so. This was in stark contrast to the way in which WHR was funded, which was typically based on the organisation’s aims and objectives rather than a particular program or activity.

Volunteers formed the bedrock of Sangam, providing much of the labour needed to implement project activities as well as forming the population base from which some staff and all members derived. A volunteer could be any woman whose child was below 3 years of age and who had lived in a particular locality for at least 2 years. Just over 1,000 women volunteered at Sangam, each having participated in training in basic health and nutrition one day a week for a period of 16 weeks before commencing volunteering activities in their working areas (i.e. the particular locality in which a volunteer lived and worked for Sangam). No educational qualifications were necessary for acceptance into the volunteer training program. Six hundred and fifty women were members of the organisation while 20 people were employed as paid staff, 3 of whom were men who, along with 4 female colleagues, held desk positions at the organisation’s central office. One woman was employed as a cook while the remaining 8 women worked directly with families within the communities. The education and skills of the staff were wide ranging – from nursing and accounting qualifications to secondary level education, which was the level of educational attainment of most staff members. Further, very few staff members spoke English – a key attribute necessary for sourcing donor funding.

Within the nutrition program there was a range of different activities running across 11 wards in Kathmandu Metropolitan City, including growth monitoring, awareness programs (one targeting men specifically), volunteer training and savings groups, among others. For this discussion I draw on data collected during home visits, a key activity of the program that entailed Sangam staff members and volunteers visiting the home of a child that had been identified as underweight at a growth monitoring session. Simply providing a family with information about food and nutrition did not always result in an increase in the weight of an undernourished child. Sangam recognised that there was typically a link between the weight of the child and the physical and emotional well-being of the main caregiver, which in most families involved with the NGO was the mother. Sangam described this as the psychosocial situation of a family. During home visits the NGO focused on “listening to women” to find out about the constraints and difficulties that prevented a mother from adequately caring for her child. Developing a trusting relationship with the mother was the central focus, as it was the first step in enabling the mother to open up and express her problems and concerns. It was found that once these difficulties were raised – and, ideally, addressed – by Sangam staff it would then be possible to facilitate the feeding and hygiene of the child. Thus, these visits were a key strategy aimed at empowering women. Moreover, it was during home visits that the realities of women’s lives came to the fore – as more than just words on a page. Home visits offered me a first-hand glimpse of the struggles and difficulties women face in their day-to-day lives. These visits were also revealing of the obstacles and barriers that impact on women’s capacity to realise their rights through the judiciary. Indeed, for many of the women involved with this NGO – staff, volunteers, members and program recipients, regardless of their caste and ethnicity – access to the legal system in an effort to defend, expand and/or enforce their rights was simply out of reach.

Home visits were also a way in which Sangam disseminated rights discourse, although in terms that resonated with the mothers.¹⁵ “Rights talk”, in the sense of the overt, global notion of human rights that permeates the language used by WHR, did not feature in these interactions. As the quote at the beginning of the section highlights, many women were unaware of what “women’s rights” meant. Rather, talk focused on the local level and the ways in which the situation (i.e. defending or enforcing a particular right) could be resolved using local informal mechanisms such as intra- and inter-family mediation or quasi-judicial forums, which points to the emphasis on local forms of justice. In particular, Sangam strongly promoted the importance of women’s citizenship rights during program activities and interactions with women in the community. Many women in Nepal do not have proof of citizenship and remain unaware of its importance and the implications for claiming rights, including access to education, formal sector employment, affordable healthcare, marital property and inheritance (Abrahams and Varughese, 2012). Proof of citizenship is also fundamental to pursuing rights causes through the courts. Sangam staff provided information and practical support to enable women to obtain the necessary paperwork – including a birth certificate (often held by the woman’s family in rural areas) and a bank account (by joining Sangam’s savings group). Sangam also provided women with access to a female lawyer, which in Epp’s (1998) terms constitutes one of the support structures necessary for legal engagement, but according to a Sangam staff member, women rarely (or possibly never) accessed this service for fear of the social consequences legal action might bring. As Meena’s story below highlights, many women did not consider legal channels to be a tangible option.

Meena¹⁶ was a woman I encountered during home visits with Sangam. Meena’s situation could have applied to any number of women living in this community – a middle to low socioeconomic area of inner Kathmandu. Women here appeared to have very limited life choices due to a lack of education and skills, often as a result of poverty and/or early marriage. This story brings to the fore the social and cultural constraints women confront in trying to realise their rights through legal frameworks. Meena was introduced to me at her home as a woman experiencing many difficulties. While this was my first visit to her home with Sangam, Meena had long been interacting with the NGO staff. Meena was the second of three wives – all of whom were married to the same man. While polygamy is illegal in Nepal, it is still widely practised in both urban and rural areas. Meena had a young son with her husband while her husband’s 22 year-old son from his first wife was also living with them. Life in the home had deteriorated badly, particularly for Meena. Her husband’s son from the first wife regularly beat Meena, but her husband refused to intervene. On numerous occasions Sangam staff had spoken with the husband in an effort to improve the situation, but the husband believed that Meena was deserving of such beatings, describing her to one Sangam staff member as lazy around the house and slack because she did not regularly cook his food on time.¹⁷ Thus, Sangam’s intervention at the familial level proved futile in improving Meena’s situation.

On the day of our visit Meena was desperate to escape her increasingly difficult situation. Sangam staff talked with Meena about her options, suggesting that she should not tolerate violence. She could get a divorce, she could work outside the home, and now that the laws had changed she would be entitled to a share of her husband’s property. Staff recommended a lawyer who would be able to assist Meena, but for Meena, divorce was out of the question. Meena’s husband had already threatened that she would never receive anything, including any property, if she divorced him. When Meena had asserted that she had rights in relation to divorce and property, her husband had laughed, telling her that he had good connections within the community to support him and prevent Meena from receiving the property. Even though Meena could choose to engage in legal action against her husband in an effort to enforce her formal right to property, the wider implications prevented her from doing so. As the notion of the “good woman” highlights, a woman’s status is in relation to men. Marriage, therefore, is extremely important to a woman’s social and economic status. Divorce would mean that she was no longer a “good woman”, thereby bringing dishonour to her family and resulting in ostracisation from her family and stigma within the community. Asserting her rights and seeking property through the courts would have a similar effect. Engaging in legal action might also result in further violence and abuse. In addition, Meena was illiterate and lacked skills outside the home, which further limited her options. Without marriage and property, Meena would not have economic security or social standing, thereby rendering her vulnerable to other forms of discrimination.

Meena’s story highlights the way in which women’s rights in this context are relational – something that women themselves realise. Claiming one right may impact on other rights, in which case it may mean that seeking to enforce a particular right could be counterproductive, even dangerous. Here we see the tension between global rights and norms and beliefs in this context – between the “rights-bearing individual” and the notion of the “good woman”. Knowledge of their rights does not necessarily mean that women have the capacity – or the desire, particularly if their claim is in opposition to the norms to which they are subject – to assert those rights. Nevertheless, Meena’s story exemplifies the symbolic power of legally enshrined rights – as something to aspire to and to call upon when conflict arises. For instance, you can work outside of the home, you have recourse in domestic violence situations, and you have the right to property and to seek divorce. Thus, justiciable legal frameworks do work at a certain level in this context, even if it is only at an aspirational level, thereby enhancing the effectiveness of promoting women’s justice.

Conclusion

This paper has highlighted the way in which, in Nepal, women’s access to justice and the realisation of rights through the legal system are dependent on particular conditions. Engagement with the judiciary is a remote possibility for most individual women – particularly those who are poor and marginalised – but achievable through intermediaries such as rights-advocacy NGOs. Nevertheless, the ability of an individual to pursue rights claims through the judiciary in this context is dependent on a number of support structures and resources – described by Epp (1998) as SSLMs. The legal cases related to women’s right to property and the case studies of two women’s NGOs contest the assertion that SSLMs will automatically emerge when the political and institutional conditions enable individuals and NGOs to access the judiciary (Brinks and Gauri, 2008). Rather, as these case studies show, support structures for NGOs themselves are necessary for legal engagement.

Sangam’s capacity to provide SSLMs to women was very limited. In relation to Epp’s definition of an SSLM, it was only able to provide women with an SSLM in the form of access to a lawyer. Nevertheless, Sangam’s work in terms of disseminating rights discourse to women through various programs, focusing particularly on the realisation of women’s citizenship rights, could be regarded as forming part of an SSLM. It is important, however, to underscore the way in which engagement with the legal system to defend, expand and/or enforce women’s rights was not part of Sangam’s agenda. Indeed, the NGO was bound by its donor agenda in terms of aims, programs and finances, which points to the way in which donor backing (be it financial and/or technical support) is an important support structure required by NGOs to engage in litigation. By contrast, WHR is willing and able to engage in legal action; indeed, engagement with the judiciary forms a key part of its strategy of agitating for widows’ rights. As the two case studies highlight, NGOs are distinct in motivation, intention and capacity.

As Meena’s story demonstrates, this positioning has implications for the way women engage in pursuing rights-related causes, be it through the courts or through more informal mechanisms. In turn, this impacts on the extent to which an NGO forms part of an SSLM for women. Sangam was working with married women, who because of their marital status were positioned as “good women” within Nepali society. For these women, seeking legal recourse might endanger relations with their families and communities, thereby impacting on the social networks that offer women a level of protection in Nepali society. By contrast, widows are no longer “good women” – they have already lost social standing and status in the community. Thus, the notion of the “good woman” is a weaker constraint on going to court for the women aided by WHR. Indeed, engagement with the judiciary to defend, enforce and/or expand their rights is regarded as something that could only improve their lives. Nevertheless, as Lily Thapa has emphasised, success at the legal level does not ensure the realisation of rights in practice. She states that “there are more gaps in implementing what is on paper … because women know little about the policies and because of gender roles” (email communication, June 2012).

In policy terms, the implication is that importance needs to be placed on a multi-dimensional approach to promoting women’s rights, one that focuses on legal mobilisation and political mobilisation. Empirical evidence underscores the way in which changing discriminatory gender norms requires societal change that can only come from within society. Thus, attention must be focused on changing perceptions and attitudes at all levels of society, involving both women and men. The cases relating to women’s property rights and the two case studies of NGOs highlight the fact that this is well recognised by women’s NGOs, as demonstrated by the strong focus among these organisations on awareness campaigns and advocacy for women’s rights – from the political level to the social spaces in which women live. This needs to be recognised by the government, political parties and donor organisations in order to work with NGOs to develop broader strategies through activism and legislation to raise the status of women to be able to take their cases to court.

In this regard, Nussbaum’s human capabilities approach could provide an effective framework, enabling the multiple factors that subordinate women’s status to come to the fore. Central to Nussbaum’s approach is the notion that a person’s capabilities – what a person is actually able to do and to be – are both fundamental entitlements of all citizens and “minimal requirements of a life with human dignity” (Nussbaum, 2006, p. 1314). Nussbaum’s (2006, p. 1317) emphasis on capabilities as political goals that can form the basis for practical political action could inform a multi-pronged agenda that challenges dominant ideologies, norms and rules that restrict women from realising their rights – both in a legal sense and in everyday practice. Thus, the paper argues that while the framework of law is an important element in the realisation of rights, providing a structure that legitimises rights claims and promotes their implementation, legal engagement should be seen as one part of a multi-pronged strategy of NGOs. As Lily Thapa suggests, engaging with the courts and changing discriminatory laws against women is akin to opening an “iron gate”. It is just the first step in the quest for gender justice for the women of Nepal.

Acknowledgments

The research for this paper was supported by The University of Adelaide under the George Fraser Scholarship for a postgraduate research degree. I am grateful to the Government of Nepal and the Central Department of Sociology/Anthropology, Tribhuvan University for granting me research clearance. I am particularly grateful to my research participants for their help, generosity and consideration. I am indebted to Dalima Rawal, Sadixya Bista and Anju Subedi for their excellent research assistance and interpreting skills. Thanks also to the anonymous reviewers for their insightful comments and useful suggestions.

Notes

1. Research was carried out for 12 months during 2009–10 for my doctoral dissertation on women and development in Kathmandu.

2. For examples of other studies on women’s activism and legal reform see Special issue: The politics of rights: Dilemmas for feminist praxis, Third World Quarterly 27(7), 2006.

3. While the “right to equality” was included in the 1962 Constitution, laws upholding traditional practices (i.e. norms and values based on male, high-caste, hill Hindus) continued to be hegemonic (Tamang, 2011, p. 299).

4. There have been inroads and positive changes for women in government, but female politicians continue to be marginalised by their male counterparts (Tamang, 2009, p. 68).

5. Meera Dhungana filed the case on behalf of a women’s legal advocacy NGO, Forum for Women and Legal Development (FWLD) (Writ No. 3392, 2052, Decision No. 6013 of 2059, NKP 2059 Vol. 6, p. 462) (Pradhan Malla, 2010, p. 5).

6. From “Manusmrit”, as set out in The Laws of Manu. This verse is one of many regarding the status and duties of women (see Radhakrishnan and Moore, 1971, pp. 189–92).

7. The term “single women” is now used in media, government and non-government documents (WHR, 2010, p. 23). Nevertheless, my research revealed that not all Nepalis accept this term as a replacement for the word “widow”. One of my participants – a highly educated woman who has never married – takes issue with this use of the term “single women”.

8. A widow of any caste is considered inauspicious; however, unlike high-caste women, low-caste women who are widowed find it relatively easy to remarry, with few social prescriptions. Indeed, lower-caste widows can shed this inauspicious state relatively quickly by remarrying (Cameron, 1998, pp. 149–50).

9. Adopted in 2000, it was the first resolution on women, peace and security (Peacewomen).

10. WHR describes partners as “those organisations providing both economic and technical assistance for some specified project” (email communication with author, December 2011).

11. Contributors are described as “those organisations or individuals specially providing support to our Opportunity Fund”, which provides young widows and the children of widows with education scholarships (ibid).

12. These include foreigners and Nepali female academics and professionals.

13. A pseudonym.

14. This concept has a multitude of meanings. My research focuses on what the term signifies to participants.

15. The way in which the discourse of rights is appropriated and reinterpreted by NGOs in terms that resonate culturally in specific contexts where normative culture operates is well recognised by anthropologists (see Goodale and Merry, 2007).

16. A pseudonym.

17. This justification for violence against women was invoked by men in relation to their wives in other home visits I attended.