Decentralisation of power and resources from federal government to provincial and local government level is a basic principle in Nepal’s new constitution. But out in the provinces, locals are increasingly complaining about the exact opposite taking place: centralisation! The latest examples include CDOs who could remain under federal control; curtailment of local authority on education; and disempowerment of forestry user groups. Here are the details.
Chief District Officers, or CDOs, have been in charge of police and security in the districts for decades and answer directly to the Home Ministry. The new constitution, however, entitles the provincial governments to take over responsibility of security in their respective provinces and to create their own police force. Now, somewhat in contradiction with this provision, the government has tabled a bill that effectively retains control of the CDOs on federal hands!
Provincial government officials have made strong objections to this bill. They view it as a step towards centralisation. Most vocal is Chief Minister Lal Babu Raut of Province 2 who objects:
“The spirit of the constitution is that the province mobilises its own representatives [i.e. staff] to maintain law and order in each district, and such representatives can take the help of the Centre [i.e. federal government] if necessary. The Centre mobilising its own representatives creates a parallel security institution, and it is against federalism and the constitution.”
The federal government argues on its part that it needs its own administrative staffers and security personnel in the districts. At a time when “secessionist elements” are “burning the flag” and trying to “destabilise the country”, Home Ministry officials say, federal control is needed to uphold law and order. Lal Babu Raut, once again the loudest provincial voice, call this explanation a mere excuse for centralizing power and wows to ignore the bill if passed!
Legislation on education is another contentious issue, this time between federal and local level. Just before new year, the Ministry of Federal Affairs and General Administration issued a circular to all 753 local governments directing them not to pass any new laws on education until the Federal Education Act is passed. What’s more, the ministry told the local bodies to ask it first before passing new local laws, implying that the ministry can block local legislation!
Advocate Sunil Rajan Singh, a member of the Local-Level Restructuring Commission, which carved out the new local government system, immediately objected to this circular. He filed a writ petition at the Supreme Court on January 4 and demanded that the federal government remove the circular at once. Singh argued that the circular violates the constitution itself:
“As a member of the Commission, I am well aware of the authority of the local governments. Instead of taking a proactive role in implementing the constitution, the federal government has flouted it by issuing such a circular.”
The Federation of Rural Municipalities has sent a complaint to the federal government too demanding the withdrawal of the circular. But to our knowledge the circular is still in effect.
The Ministry of Federal Affairs and General Administration maintains that the federal government has overall authority on education and therefore that the locals bodies must “coordinate” with it. It’s noted in the circular that: “The local federal administrations should be mindful that their laws don’t contradict with the one formulated by the federal government.”
It’s also part of such coordination, however, that the municipalities must consult with the ministry before hiring or firing teachers and other staff in the local education sector. This curtailment of municipal authority to legislate on the local education system and manage local schools, Singh goes on to argue in his writ petition, is not mandated by the constitution at all!
Another tussle over the division of power under the new federal set-up is unfolding between local governments and Community Forestry User Groups. In this case, it’s the country’s rural municipalities, not the federal government, that could appear to be a “centralising force”.
The Community Forestry User Groups have received a lot of the credit for saving and expanding Nepal’s forests over the years. While other factors have also played a role, the 22,000 forest user groups have had a major part in managing local forest resources. In the forty years that have passed since the first groups started out, the forest cover in Nepal has more than doubled! So, should the user groups not continue to manage the local forests?
Well, though successful, the forestry user groups are seeing their power wither. The Local Government Operations Act of 2017, first of all, places the power to protect, use, manage, monitor and regulate the utilisation of local forests in the hands of the rural municipalities. Secondly, as forest resources have become large assets in many municipalities, municipal bodies are more than eager to take over forest management. So, power is shifting hands!
Community Forestry User Groups must now ask permission from their local municipalities, whether it’s to sell timber or to allow the collection of fire wood in their areas. They can’t continue under the new law as self-governing, user-based committees where those who manage the forest are also elected by and from amongst those using the forest. They are instead about to become mere “extension agencies” of their respective municipalities!
Annapurna Conservation Area is now subject to a similar tussle. The so-called ACAP user groups were created in the 1980s somewhat like the forest user groups to involve local communities in the protection and management of natural resources. Like the Community Forestry User Groups, the ACAP user groups have been widely acclaimed for helping to preserve natural resources, not only forests but also the environs of the Annapurna region.
But the municipalities in the Annapurna region want to take over the ACAP groups. The Constitution and the Local Government Operations Act grant them legal right to do so, argue the municipalities. Meanwhile, the provincial government claims that it receives the overall authority from the constitution to manage the forest resources, as the forests of the Annapurna region cover many municipalities, not just one or two. And so, the tussle is still on.
It’s only natural to see disagreement arise over the division of power and resources when a new constitution and legislation on local government are undergoing implementation. Overlapping legislation is not making it any easier. For example, the constitution seems to grant both federal, provincial and local governments powers in the area of local police and security. But is there an underlying tendency of centralisation amidst the general unclarity?
The slow federal response to the “staff crunch” at provincial and local level, to take one example, has led to speculations that the federal government wants to retain control. The ordinance issued last month to address the staff issue hasn’t improved that impression, either. Why wouldn’t the government create legislation instead, many are asking, that would allow provincial and local bodies to hire their own staff? Indeed, the picture is muddy at best.
But whether the new decentralised system of government is “on track” or a certain tendency of centralisation is in fact taking place, it would appear that perceived, federal encroachments on local powers are indeed being met with prompt protests. Will federal, provincial and local authorities, and user groups too, be able to clarify and agree on the actual divisions of power between them? So far, it’s clearly a process that takes time. But it’s a process in full swing.
The very latest:
The Ministry of Health and Population announced on January 24 that the responsibility for local hospitals and various health institutions are now transferred to the provincial governments and some to certain municipalities. That is a step in line with the federal set-up under the new constitution. The extent to which the power to hire staff, and the resources to effectively manage the hospitals, are also part of the transfer will be worth following.
The bill on the CDOs to remain under federal control with quite extensive powers is still awaiting vote in parliament. With two-thirds majority in the House, however, it may be straight-forward for the government to get the bill through. Chief Minister Lal Babu Raut of Province 2 has not become less vocal and threatens the federal government with demonstrations in the streets if the bill is passed. Meanwhile, a second bill is in the pipeline that even allows the federal government to depute federal police directly in the provinces!
Lal Babu Raut objects to this bill as well. What’s the point of having federal and provincial levels of power, he asks, if federal and provincial police and security personnel exist in parallel with overlapping jurisdictions in practice?! In short, the process of clarifying and determining the actual division of power is on – and where to draw the lines is not yet agreed. The actual balance between federal control and provincial and municipal autonomy is in a sense under negotiation. We’ll keep following this process as it unfolds. So, stay tuned for more updates!