Nepal needs to amend Food Right Act to realize its goal to end hunger: Amnesty International

Analysis of the Right to food and food sovereignty Act 2018, Amnesty International

The national household food security is only 48.2% in Nepal. 21.6% of its population live in poverty, nearly 41% of the population does not have access to minimum calorie intake and almost two million people are considered undernourished. Stunting amongst children under five is 36% and about 53% of children under five are anaemic (6% mildly, 26% moderately, and 1% severely).

The government of Nepal need to address a number of substantive issues in the laws related to food right to ensure the full realization of the right to adequate food to all, including groups who are marginalized and vulnerable to violations of the right to food according to Amnesty International.

Amnesty International, in its report, has welcomed the Right to Food and Food Sovereignty Act 2018 enacted by the government on September 18 to implement Article 36 of the constitution of Nepal 2015 that guarantees the rights relating to food. However issues such as definition, accountability for starvation-related human rights violations, an inclusion of an implementing mechanism in the act needs amendment if Nepal is to realize its determination to end hunger problem, malnutrition and food insecurity by 2025, states Amnesty International.

The national household food security is only 48.2% in Nepal. 21.6% of its population live in poverty, nearly 41% of the population does not have access to minimum calorie intake and almost two million people are considered undernourished. Stunting amongst children under five is 36% and about 53% of children under five are anaemic (6% mildly, 26% moderately, and 1% severely).

The Amnesty International has made a number of recommendations in various sections of the Act to assist the Government of Nepal in its efforts towards strengthening the legal framework and prompting the implementation of affirmative provisions that the Act contains.

“Nepal is required to respect, protect and fulfill the right to adequate food: a) by refraining from taking measures that prevent access to adequate food; b) by ensuring that the third (non-state) parties do not deprive people of their access to adequate food; and c) by taking proactive steps to facilitate access to food, strengthen food security and provide minimum essential foods to those who are not in a position to feed themselves due to emergencies and other situations,” the report states.

The report suggests an amendment in the Section 3 of the Act in a way that would expand the scope of the legal protection to non-citizens as well especially in the context of ensuring the core minimum elements of the right to adequate food.

According to the Amnesty International some of the terms used in the Act do no correspond to internationally accepted definitions and some of the key terms used in the Act are not defined, hence, the the report recommends to define the right to food as well as other key terms including peasant, hunger, starvation, malnutrition and vulnerability in line with internationally recognized definitions.

“Section 2(b) defines “peasant” to include “those who maintain their livelihood based on agriculture, agricultural laborers who spend 6 months annually in the agricultural sector or an individual who manufactures traditional agricultural tools and the family members dependent on them.” The requirement for spending six months annually engaged in agriculture is problematic as this may not be the case for those who do not have access to land for cultivation. For instance, those peasants who do not have access to land often work as farm laborers in crop plantation and harvesting seasons, and at other times may be engaged in construction work. As per the current definition, such laborers would be at risk of being excluded from the protections available to peasants under the Act. Amnesty International therefore calls for the amendment of the definition of “peasant” in line with international standards. The definition of “peasant” can therefore be strengthened by including the following: “A person engaging alone, or in association with others or as a community, in small scale agricultural production for subsistence and/or for the market” and “special dependency on and attachment to the land” as recognized internationally,” the report states.

Though it includes a separate definition of the right to food sovereignty and food security, the Act does not incorporate any stand-alone definition of the right to food. The Act does not contain definitions of other important terms such as “hunger”, “starvation”, “malnutrition”, and “vulnerability”, which have been used in the Act. As stated above, the absence of definitions of “hunger” and “vulnerability” would complicate the process of determining what the right to be free from hunger would entail and what should be the basis for identifying those vulnerable to hunger under Section 3 of the Act, the report further reads.

The Act has guaranteed a commitment to expand access to cultivable land for women peasants and landless households and protection against forced eviction from agricultural land. However, the Act does not clarify what forms of access (for example, use rights, control rights and transfer rights) to cultivable land will be provided by the state, and how such access would be operationalized in the context of peasants and landless agricultural workers. There is also an absence of any statutory guidance to prioritize access to cultivable land for peasants belonging to Dalit or other marginalized groups and land-dependent Indigenous peoples including Tharu. The “respect” and “protect” elements of state obligations have not been adequately reflected under Section 3. This could have been done by prohibiting public authorities from interfering with peoples’ efforts to feed themselves and their families (for example, imposing arbitrary restriction on gathering foods and medicines, restriction on cultivating unused public land that is appropriate for agricultural purpose) and requiring them to adopt necessary measures to protect individuals or groups of people from conduct that would threaten peoples’ access to food and their food security by third-party actors such as corporations, the report further reads.

Amnesty International has recommended addition of: An explicit provision to clarify nature and forms of access to cultivable land (use rights, control rights, transfer rights, tenancies and communal holdings); prioritize providing access to cultivable land to peasants and women peasants from Dalit communities and land-dependent Indigenous peoples such as Tharu; and a provision prohibiting public authorities from interfering with peoples’ efforts to feed themselves (for example, gathering of foods and medicines from forest, cultivating unused public land that is appropriate for agricultural purpose, traditional fishing and honey hunting) and their families and require them to adopt necessary measures that will protect people from abuses of the right to food by third parties.

Furthermore, the reports also recommends an addition of a provision to immediately provide food and nutritional support (for example, meals two times a day, free of charge) to protect those found starving or at the risk of starvation; and amendment in Section 4 to require an inquiry into any deaths resulting from starvation and to guarantee accountability (criminal as well as non-criminal) against breach of duty to prevent starvation.

According to the report, the notion of “controlling starvation” incorporated in the Section 4 of the Act is flawed as the state has an absolute duty to prevent starvation and thereby guarantee freedom from hunger. The Act fails to provide for an inquiry into deaths resulting from the starvation with the aim to hold those authorities responsible for preventing starvation to account. In line with the Supreme Court of Nepal’s jurisprudence, the state must take a responsibility for each death that occurred due to starvation, and therefore the Act should have included an explicit accountability provision.

“The Section 7 of the Act fails to provide a clear set of criteria for identification of households eligible for the “free of cost assistance”. It also does not clarify the form and amount of food to be provided as assistance. Although it says that the respective local government will be in charge of distribution, the responsibility of each level of the government in terms of providing such assistance is also absent in the Act, according to Amnesty International.

Section 7(2) creates an ambiguity by making the distribution of the food assistance subject to emergency situation. Even if no food emergency is declared due to any disaster, there may be food insecurity situations where an individual, household or community need to be supported with food and nutrition, it further states.

The Supreme Court of Nepal has already established that there is a duty of the government to feed and shelter individuals who are destitute. The definition of emergencies under Section 9(1) and Section 10(1) also remains problematic as it confines food-related emergency to calamities such as earthquakes, floods, landslides, snowfall, cold waves or fires. The Act is silent about human-created emergencies such as those created from forced evictions, extreme and sudden price rises, a corruption in and disruption of food distributions systems, etc. The Act also fails to streamline several pre-exiting schemes in terms of food and nutritional support. Many such schemes mostly include provision of a midday meal,40 subsidized supply of food and Golden 1,000 Days nutrition program\, the report states.

To address as such issues, Amnesty International has recommended: a) insert a clear set of criteria for identification of households eligible for the “free of cost food assistance”;  b) provide clear legislative guidance on forms and amounts of the food assistance provided to the priority households; c) insert a provision requiring the authorities to provide food assistance to those facing food insecure situations leading to hunger or starvation irrespective of the reasons; d) redefine the food-related emergency situations to include human-created situations; e) bring a number of pre-existing food assistance schemes under the umbrella of the Act and harmonize them with the provisions of the Act.

Moreover, the report also recommends provisioning towards providing direct nutritional support to pregnant and lactating women; and provision to prioritize gender and social inclusion as one of the overarching principles in taking a decision, designing and implementing any program or creating any mechanism under this Act.

Under section 12 and 13 of the Act, that provide for the protection of agricultural occupations and the promotion of livelihoods of peasants, Amnesty International has recommended to insert a provision to give a priority to smallholders, female peasants, ex-bonded laborers in terms of providing subsidies, concessions, access to resources such as water for irrigation, fertilizers, and other assistance; amend the Act to require the development and implementation of targeted agricultural development programs for the protection and well-being of Dalits, and Indigenous peoples, in order to eliminate inequalities in levels of development, well-being and dignity; amend the Act to guarantee informed participation of peasants including from marginalized and vulnerable groups in terms of development and implementation of programs impacting them; amend the Act to recognize the rights of hunters, gatherers and other groups of people who extract food from forest and design special programs to respond to their needs in terms of their right to food and food security.  Include a provision to guarantee the rights of Indigenous peoples to free, prior and informed consent regarding national parks and other protected areas proposed on their lands, and to restitution or compensation in cases where displacement has previously occurred as a result of such initiatives.

Under Section 15–that requires all three levels of government to promote the sustainable cultivation of land by arranging maximum utilization of productive land that has remained barren, by promoting cooperative farming, lease farming, contract farming or collective farming—the report has suggested a provision that prioritizes the landless, homeless households, Dalits, Indigenous peoples and marginalized households including women-headed households dependent on agriculture in terms of facilities provided under Section 14.

Section 21 of the Act requires the government to formulate a national plan on food in consultation with governmental and nongovernmental stakeholders including the private sector. The Act also requires that the government’s periodic development plans should include the right to food, food and nutritional security, and right to food sovereignty issues.

The reports states, however, the Act fails to spell out the issues that need to be addressed by the national food plan. Several aspects (for example, prevention of starvation and malnutrition, access to food and nutrition, promotion of agriculture, access of peasants to agricultural inputs, gender and social inclusion in the context of food production system, seed conservation, impact of climate change in agriculture) are critical to the successful formulation and implementation of the plan and should be given priority during its formulation.

The Act also envisions an adoption of a set of indicators for monitoring of the right to food in consultation with the Food Council and the concerned authorities. However, it fails to widen the list of stakeholders to include the NHRC especially since the NHRC has already tried to develop a set of indicators to provide a basis for tracking progress in terms of realization of the right to food, the reports states.

Amnesty has recommended providing a list of priority issues that need to be addressed by the national food plan; and ensuring consultation with National Human Rights Institutions (NHRIs), civil society and research institutes in setting or reviewing indicators in terms of tracking the progress towards implementation of the right to food.

Moreover, as recommended in the report, the Act should be amended to clarify the roles and responsibilities of each tier of government for implementing the Act.

It further recommends: while considering research and study under Section 25, priory should be given to assessment of food insecurity situations of landless, ex-Kamaiyas and ex-Kamalaris, Haliyas, Dalits, Indigenous peoples, women, children, people with disabilities, people with HIV, rural and urban poor and the impact of laws and policies on them.

Under Section 29, which entrusts the Government of Nepal with the responsibility to maintain stability of price for the basic staple foods, Amnesty recommends to detail the procedures in the forthcoming Regulation under the Act in relation to maintaining stability of price and role of the provincial and local government in this regard either by amending the Act or providing in the regulation.

“The Act does not contain any provision to guide the government on the process/procedures (for example, determination of price, review of price, monitoring with respect to price) of maintaining stability of price. The Act doesn’t create a specialized government agency responsible to carry out this function. Also, it does not indicate any role for the provincial and local government in this regard,” the report states.

Amnesty further recommends amendment in the Section 32,34 and 36 Act to provide for formation of the national and provincial food councils and local food co-ordination committees clarifying their functions, powers and responsibilities.

The report also suggests amendment in Section 41(2) as does provide for 35 days statute of limitation to prosecute someone who commits any crime under Section 40—that criminalizes certain acts that may impair access to food and thereby result in violations of the right to food.

“This does not correspond to the seriousness of the crimes and the current socioeconomic reality of Nepal,” it states.

Amnesty has also recommended provision for statute of limitation commensurate with seriousness of crime and the socioeconomic and geographical context in Nepal.

The report further states, Section 20 provides for compensation against crop failure. However, it does not specify the mechanism responsible to inquire into the complaints, evaluate the damage and award adequate compensation. Section 43 also provides for compensating the victims for suffering any damages caused by the offences under this Act. However, the statute does not detail the criteria or standards of the compensation; rather it is left to the discretionary powers of the government.

The report recommends: Amend the Act to specify the mechanism responsible for inquiring into and assessing damage resulting from crop failure as well as for awarding compensation;  amend the Act to clarify the criteria applicable in determining the compensation; integrate other forms of collective and individualized reparations (for example, priority to the respective household or community in terms of subsidy, soft loan, micro-credits and other support measures) for the affected household or communities into the Act.

Lastly, there is also a recommendation to amend the Act to create a separate administrative or quasi-judicial mechanism responsible to handle grievances where rights-holders or stakeholders feel that duties are not carried out or entitlements are not provided, or application of legal provision is discriminatory.