To mark the momentous passing of the Children’s Act in Nepal, Save the Children in Nepal’s Child Rights Governance and Child Protection Advisor, Dilli Guragai, shares his views on the Children's Act 2075 & what it means for the children of Nepal.
What does the new Children's Act mean for children of Nepal?
On 18th September 2018, the Government of Nepal endorsed a new Children's Act 2075, paving the way to respect, protect and fulfil the rights of children in Nepal.
This new Children's Act means a lot for the children of Nepal. It builds upon certain national and international provisions that are meant to promote children's rights. Among them, the United Nations Convention on the Rights of the Child (UNCRC) is of most importance. Nepal's 2015 Constitution actually has an article dedicated to children’s fundamental rights - but this new act translates these provisions and the children’s fundamental rights provided in the constitution, into a legislative provision, which then allows children to exercise their rights legally.
The new Children's Act in Nepal is very different. It substantially differs from the earlier children's act of 1992, as it recognises that children are entitled to these rights - and the state has an obligation to uphold their rights. This obligation is three-fold - the need to respect the rights, protect the rights and fulfil the rights of Nepal’s children. Another new significant addition to the provision list includes that everything must be done to promote the best interest of the children.
How will this Act change the lives of children in Nepal and who are the key players to ensure its implementation at the national level?
The Act provides a framework to design and implement child-focused programs that hold duty bearers accountable to children. In Nepal, we are often quick to make policies but often lag in its implementation, and so this act resolves this issue. If there is no implementation, the lives of children will not change. And if there is no act, there is nothing that can be used to hold duty bearers to account.
What was Save the Children’s role in the process of drafting this Act?
Whilst the law was being developed in the past few years, together with its national civil society partners and other peer organizations, we played a critical role in paving this act. We have engaged in three different areas - providing technical support to the government in crafting the content of the Bill; promoting child rights discourse including through television and radio; and advocating with the policymakers- including through international UN accountability mechanisms provided by the Universal Periodic Review (UPR) and the UN Committee on the Rights of the Child. The Constitution of Nepal was publicised in 2015, which provided further impetus for the enactment of the Bill by setting a time bound requirement to design legislation to give effect to fundamental rights, including children's rights.
What are some of the existing challenges of this Act?
In the section of children's rights to protection, there is an error; it mistakenly mentions that children under the age of 14 are not allowed to work in hazardous labour or the worst form of child labour. This error has been accepted by the Ministry of Women, Children and Senior Citizen. Actually, any child under the age of 18 should not be working in any type of hazardous condition, as it would be against the ILO convention 182- which bans all the worst forms of child labour. There was one more area which was prescribed by civil society organizations, but not included in the Act – the setting up of a child rights commission, an independent body to investigate child rights. The Committee on the Rights of the Children that monitors implementation of the CRC recommends setting up a coordinating body at the highest level of the government. The Children’s Act has the provision to set up a national children's council led by Minister for Women, Children and Senior Citizens, but not led by the Prime Minister. That is not the highest level of the government that we had hoped for. There are other minor provisions that we hope that government will amend in due time - one would be the provisions for child rights committees at the local government level.
How can children and more people learn more about this act?
When the act is published in the (government's) Gazette, it is considered public. However, the Gazette is probably not very accessible, and it needs to be shared more publicly. As this act is very new, we need to undertake this massive responsibility to make it more social for the realization of children's rights. For that purpose, we have a plan to come up with a child-friendly version of the act, in different mediums and languages.
This act has been over a decade in the making with multiple partners at various levels. Firstly – is this the conclusion of Save the Children's long-standing work on children's rights in Nepal? Secondly, can you tell us a bit about this sustained advocacy?
This is not the end for certain. Some provisions still need to be included and some still need to be improved. Standards which are good right now may no longer be relevant tomorrow. This process is not a one-time exercise. The government is now in the process of making a regulation for this act which will make it complete. We will continue to engage with the government in developing the regulation. For example, I talked about the National Children's Council. The act says, that the council will be headed by the Minister for Women, Children and Senior Citizens. In terms of its composition, functions, duties and powers, it will be as per the regulation. Then, unless that regulation is put in place, they will not be able to set up that council. The regulation will lay out in detail who else will serve in the council, what their duties will be, among other things. In a nutshell, this is not an end, we will continue to work for Child Rights in Nepal.
We have been engaged in this process for a long time and personally, I have been here for a decade. It took a long time, but we never gave up hope. It is important that we continue because changing the law does take time. Sometimes time doesn't favour a new law as cetain external factors can affect the process.
One example of this is when we had a new constitution. When the process of changing the law started, we were still facing an armed conflict, then on we had a new interim constitution in 2007 which had certain provisions for children's rights. After this, came the new constitution in 2015 which mentioned children's rights as fundamental rights. That provision needed to be translated into a legal framework within the three years of publicising the constitution, leading to the act we have now. A day before the third anniversary of the publicising of the Constitution in 2015, this act came into effect. These external conditions are all important factors in sustaining advocacy.
We were one of many organizations who were involved in this process, as only one organization cannot bring about this kind of policy change. We work closely with other like-minded organizations and civil society, including networks like Children as Zone of Peace and Consortium. Each entity involved in this process brings their own strengths to the process, enabling the group to create a bigger push for this agenda.
If you were a child, what would excite you about this Act?
Nepal has become the 54th state in the world to ban all types of corporal punishment of children in all settings - a significant achievement. Until this act was in place, children could be disciplined using force. Children now have an absolute right to be protected against all types of corporal punishment. If you are a child and if you are beaten by a teacher, you have the right to report through the prescribed channels. You can report to the police or protection committees or child welfare bodies at the local level. There are consequences for violators – imprisonment and fines. A child, who goes to school, should not have to worry about being punished by his/her teachers or at home by his/her parents. Their mind should be free – they can focus on being children.
We commend the Government of Nepal for this provision. To translate this provision into practice will take time. Research across the board has proven that physical and humiliating punishment leaves a lasting impact on a child's life- even as he or she becomes an adult. The Challenge going forward is to change how socially acceptable this behaviour is amongst people who think some form of violent punishment is necessary to raise children. Together with partners, we want to take up this challenge to change the behaviour of those who take care of children.