One major stumbling block is the government's shameful failure to adopt regulations essential to putting many of its provisions into practice

The 2015 Constitution provides a comprehensive framework, guaranteeing the rights to food, protection from hunger, and food sovereignty under Article 36. Additionally, the Constitution ensures rights to live with human dignity, housing, employment, equality, social justice, social security, and access to clean water and sanitation, all of which complement the right to adequate food.

Raju Prasad Chapagai

Many countries worldwide are still grappling with the challenge of enshrining the right to food as an enforceable right in their constitutions. However, Nepal shines as a successful model with a strong constitutional as well as legislative framework that ensures the right to food and food sovereignty. Nepal has been applauded for this achievement at numerous international forums, including the recent 2024 Global Forum for Food and Agriculture held in Berlin.

This achievement didn’t happen by chance. There were a number of factors contributing to the constitutionalization of the right to food and food sovereignty, as well as the subsequent enactment of legislation pertaining to these rights.

Nepal's political transition, marked by the Comprehensive Peace Agreement (CPA) of 2006, brought an end to a decade-long armed conflict. The CPA also laid the foundation for significant socioeconomic transformation and democratization. In envisioning democracy as more than merely a political system, we, the sovereign people of Nepal, wholeheartedly aspired for human dignity, fundamental freedoms, social justice, equitable prosperity, inclusion, and sustainable peace.

This vision set the stage for the inclusion of Economic, Social, and Cultural Rights (ESCR), including the right to food and food sovereignty, during the Constituent Assembly-led constitution-drafting process from 2007 to 2015.

One of the driving forces behind the incorporation of ESCR into the constitution was the realization that the denial of these rights was a root cause of the armed conflict, as well as many other political, social, ethnic, and regional movements that Nepal witnessed in the last three decades. Public consultations during the constitution-drafting process played a crucial role in garnering overwhelming support for the inclusion of ESCRs, including the right to food, as justiciable rights. Advocacy and awareness campaigns by a wide range of organizations, including OHCHR, during the post-conflict phase were instrumental in shaping the ESCR agenda. The peasants’ movement in Nepal was decisive in advocating for the inclusion of food sovereignty as a fundamental right. The judiciary's acknowledgment of the state's duty to provide essential food to prevent hunger, even under the 1990 Constitution, laid the groundwork for guaranteeing the right to food.

The explicit clause under the 2015 Constitution of Nepal mandating the enactment of laws necessary to implement fundamental rights within three years further compelled the government to enact laws. Civil society organizations, such as JuRI-Nepal, FIAN, and the Right to Food Network Nepal, contributed model provisions and advocated strongly for the framework law on the right to food. Last but not the least, Nepal’s wholehearted commitment to human rights obligations, including those under the International Covenant on Economic, Social, and Cultural Rights (1966), also warranted a national legal framework for the realization of covenant rights.

Crucially, the collaboration between the government and the Food and Agriculture Organization (FAO) played a pivotal role in reviewing legislative frameworks concerning the right to food, conceptualizing the Right to Food and Food Sovereignty Bill, and organizing consultations with stakeholders at national and sub-national levels. This collaboration exemplifies the value of collective efforts in establishing a legal framework that safeguards the right to food. Nepal's achievements in setting standards for the right to adequate food are noteworthy.

The 2015 Constitution provides a comprehensive framework, guaranteeing the rights to food, protection from hunger, and food sovereignty under Article 36. Additionally, the Constitution ensures rights to live with human dignity, housing, employment, equality, social justice, social security, and access to clean water and sanitation, all of which complement the right to adequate food.

In 2018, Nepal enacted the Right to Food and Food Sovereignty Act, aiming to operationalize the constitutional guarantees. This law mandates every tier of government (federal, provincial, and local) to respect, protect, and fulfill the right to food and food sovereignty, ensuring access without discrimination and safeguarding individuals and families from hunger or food insecurity. Furthermore, the Act defines and protects food sovereignty, empowering peasants in food production and distribution systems. It also guarantees peasants’ access to cultivable land, prohibits forceful evictions, and outlines measures for protecting farmland and mitigating climate change's impact on food production.

Moreover, the Act criminalizes various acts, including deliberately depriving individuals of food to induce starvation, deliberate obstruction to the supply of food, and carrying out forceful evictions of peasants resulting in deprivation of their livelihoods. Concrete implementing measures outlined in the Act, among others, include the national and provincial food councils, local food committees, national food plan, and food security programs.

Complementary laws, such as the Right to Housing Act, the Right to Employment Act, the Social Security Act, and the Land (7th and 8th Amendments) Act, contribute to realizing the right to food in various ways.

The Right to Food and Food Sovereignty Act is not flawless, and areas for improvement were pointed out in a report by Amnesty International. However, urgent action is needed for its actualization.

Despite the normative achievements, the Act faces pressing implementation challenges that require urgent and collective attention. One major stumbling block is the government's shameful failure to adopt regulations essential to putting many of its provisions into practice. The lack of regulations has blocked the operationalization of vital provisions, including the identification of food-insecure households, the distribution of food assistance to food-insecure households, and the formulation of the national food plan, which is crucial to advance coordination, collaboration, and co-investment among the three tiers of government. Such a protracted delay is apparently rooted in the misconception that implementing the right to food is expensive, reflecting a failure to integrate human rights into economic policy-making and budgeting.

Unfortunately, oversight mechanisms, including national human rights institutions and parliamentary committees, have also failed to prioritize the right to food. The lack of effective coordination among federal, provincial, and local governments has led to disjointed efforts. Additionally, a weak rights-based approach, both from civil society and international perspectives, hampers the realization of the right to food. Political ownership of these rights also seems to have declined rapidly in the constitution’s implementation phase. The lack of concrete deliberations about these rights at the political level is illustrative of that.

To overcome these challenges, it is imperative to inject alternative thinking into every sphere of the government. Sensitizing people's representatives and authorities to frame economic policies with a rights-based perspective and integrating human rights into budgeting and development planning are essential steps. Employing the innovative approach of 'post-legislative scrutiny of legislation', which is part of parliamentary committees' mandate, would also be crucial in this regard. Oversight mechanisms, including national human rights institutions, should be encouraged and supported to conduct proactive monitoring, and civil society organizations should employ strategic litigation and advocacy as tools to hold authorities at the federal, provincial, and local levels accountable.

It is noteworthy that the positive impact of strategic litigation in advancing the right to food in Nepal is evident from landmark cases such as the Madhav Basnet case (1998), the Prakash Mani Sharma for Pro Public case (2010), and the Raju Prasad Chapagai for JuRI-Nepal case (2016). These cases have established important precedents upholding the state’s binding obligations to effectively address hunger and food insecurities.

Successful collaboration between the government, civil society, and UN agencies (e.g., WFP, FAO) is exemplified by Nepal's recent food system dialogues. These dialogues, held nationally and provincially, saw active participation from diverse stakeholders, particularly civil society organizations. The integration of the right to food and food sovereignty in the crucial action tracks and the subsequent formulation of Nepal's Food Systems Transformation Strategic Plan (2022-2030) reflect a coordinated effort to reshape food systems. These good practices deserve to be replicated and promoted.

In conclusion, Nepal's journey in securing the constitutional and legislative guarantee of the right to food and food sovereignty is indeed a triumph worth celebrating. However, the pressing challenges of implementation demand immediate attention. The protracted delay on the part of the federal government in adopting necessary rules is inexcusable. The government must take this matter seriously and adopt the necessary regulations without further delay to pave the way for bringing constitutional guarantees to the kitchen. By fostering collaboration, raising awareness, and leveraging strategic litigation, Nepal can continue to set an example for other nations aspiring to realize the right to food and build a more inclusive and equitable society.

 
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