Following the amendment, Sushma Gautam*, an advocate with the Forum for Women, Law and Development (FWLD), has filed three court cases after the chief district officers (CDO) concerned refused to issue citizenships through the mother.
“The Act clearly states that an applicant needs either the father´s ´or´ the mother´s citizenship and not both in order to get citizenship by descent,” Gautam points out. “We have proper legal provisions but these have not been implemented properly.”
Gautam has helped nine families so far. In one case, the father had abandoned the family when the child was five years old. The child grew up in Kathmandu with his mother while the father lived in Kavrepalanchok.
“Despite having proper documents showing that the mother has been living in Kathmandu, officials told us to go to Kavrepalanchok, claiming that the matter did not fall under their jurisdiction and they needed information pertaining to the father,” says Gautam.
Tej Prasad Paudel, Assistant Chief District Officer of Kathmandu, said people are eligible for citizenship through the mother but they need to bring the father´s citizenship certificate as well to prove that he is a Nepali. This is not in accordance with the Act.
“We need proper documents certifying the relationship between the father and the child, the father´s citizenship, police reports, as well as recommendations from the municipality or village development committee (VDC) concerned,” says Paudel adamantly. “It may take up to a week or 15 days rather than just 10 minutes.”
Gautam claims that they often spend months on one case. “When the father himself has abandoned the family how can we get information (about the former)?” she asks. “The very reason for the amendment is to make it easier for such families. Moreover, the fathers sometimes refuse to help.” FWLD demands a rejection statement from the CDO when such an instance occurs and then files a court case against the authorities concerned. Gautam also said that CDOs have been more cooperative recently but it is not the same everywhere.
On June 26, 2009 the Supreme Court issued an order asking CDOs to implement the provisions in the amended Act of 2006. “Even the judges were shocked when they learnt about the case because it clearly states that one can obtain citizenship through the mother,” informs Gautam. Lack of citizenship means deprivation of many opportunities from employment and education to travel abroad.
Section officer at the Kathmandu CDO office Kaji Kumar Pokharel informed that approximately 50 to 60 applicants obtain citizenship each year through the mother. But Gautam thinks the number includes cases that are supported by organizations such as Maiti Nepal that get the citizenships much more easily since they have an agreement with the government. For children of separated and divorced parents many procedural obstructions still exist.
All government officials working at CDO offices need to be retrained and made aware of the details of the amended Act, said Gautam.
"The operative word is not ´and´ but ´or´. People should also be aware of their rights because many simply give up thinking that they cannot do anything about it,” she says. “We too are against cases of fraud but even people who deserve citizenship are facing problems.”
Children who eventually obtain their citizenship through the mother are not allowed to keep their mother´s maiden name as their own surname. “According to officials, allowing them to keep the mother´s surname would imply that the children were born out of wedlock,” informs Gautam.
“They cannot put down their mothers´ surnames even if they wish to; we don´t have a legal provision for that,” says Assistant CDO Paudel.
Section 3 (i) of Act No. 25 states, “Any person born at the time when his father or mother is a citizen of Nepal, shall be a citizen of Nepal by descent.”
* (Corrected)
(We apologize for the error - Editor)
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