A death foretold

Nakunni Dhobi died on July 20 this year. 

On October 6, a group of protestors huddled together at Maitighar Mandala after a grueling 20-day walk from Nepalgunj, demanding justice. Their mass arrest two days later made front-page news. They allege that Nakunni was murdered. Others say it was suicide. The case is still before the District Court. The protestors were also demanding justice in a separate alleged disappearance and murder of a woman that involves competing interests in property, a protest that reignited during the last week of November 2021. 

Nakunni’s death was connected to her life as a victim of domestic violence. She may have been murdered. She may have been driven to suicide. But no one disagrees that her life and death were connected by violence.

As International Human Rights Day approaches on December 10, the global culmination of the annual 16 Days of Activism against Gender-based Violence, it is worth pausing and asking what meaning, solidarity, and a way forward we can take from Nakunni’s life. 

Women’s rights as human rights

Domestic violence has many horrible faces: acid burns, homicide, suicide, and day-to-day chronic suffering. We know at least three things about the experience of victims, most of whom are women. First, violence from intimate partners and family tends to be chronic. It can go on and on for decades in one victim’s lifetime and be transmitted as a tolerated social norm from generation to generation.  

Second, women rarely seek help outside the family. We South Asians all know the mind-numbing reasons: the sense that this is ‘normal’ for a ‘good wife’. Women are held back by fear, shame, and the lack of any realistic hope in an effective remedy.  

Third, feeling cornered and hopeless, many victims end their own lives; or, as may have been the case with Nakunni’s death, they are murdered.

READ MORE: No end in sight for survivors of domestic abuse

More than 40 percent of women experience intimate partner violence in South Asia, among the highest rates in the world.  The pandemic too appears to be associated with a reported rise in both domestic violence and suicides, according to Nepali Times. 

Of all women and girls murdered in Asia every year, more than half are the victims of either intimate partner (31 percent) or family (28 percent) violence, according to a 2018 report by the UN Office on Drugs and Crime. These killings are ‘inside the family’.  

Equally tragic, there is an association between domestic violence and suicide. Research indicates that suicide is a leading cause of death for Nepali women of reproductive age. Suicides also tend to be under-reported  — as low as one in ten cases, according to some estimates  — due to fear of social stigma. 

Nakunni went to the police to complain about domestic violence, apparently more than once. There are unconfirmed reports that her husband and his family were unhappy with the dowry. Perhaps, in time, the details will be better known. What courage it must have taken for her to break the taboo against speaking publicly, to men in uniform, about these ‘private’ things. 

Nakunni dared to challenge the dominant idea that domestic violence is a private matter. But she was up against unwritten institutional rules. The trend is for such violence, whether emotional, economic, physical or more commonly, all three, to be referred by police back to the family or community to be settled. How many women have been returned to these private cages of violence, never to reach out again, all hope lost?

READ MORE: Rampant domestic violence goes unpunished

It has been more than 25 years  — and even then, it was already late  — since the veil was lifted on this so-called private violence. UN member states at the Fourth UN Conference on Women in Beijing all agreed. They declared in the 1995 Beijing Declaration that “women’s rights are human rights”. They rejected the limiting idea that the predominantly male experience is sufficient to define the scope of human rights protections. The veil was fully lifted on the harms that mostly women and girls experience in the privacy of the home, and mostly at the hands of men. 

What is the implication of this recognition for women? The answer is straightforward: Nakunni had the right to expect the state’s protection against violence in the home. Period. 

To the extent that this protection was denied through acts or omissions, Nakunni suffered human rights violations at the hands of the state on top of the criminal violence she endured at home. Sadly, as a 25-year progress report on the Beijing Declaration found, violence against women is “still rampant”  — 18 percent of women 15 to 49 globally have experienced intimate partner violence in the previous 12 months. Of these victims, fewer than 40 percent sought help or reported these harms. 

How do you spell ‘arbitrary’?

Influential police and political leadership evidently disapproved of the 20-day march to Kathmandu and the press coverage that followed Nakunni’s death. No doubt, it was unwanted attention, the kind that leads to many phone calls between those with influence. 

Under cover of night, most of the group was arrested. 

Without explanation to the rest of the group, Nepal Police separated Ruby Khan  — one of the protest leaders  — and flew her by night to Nepalgunj to face a charge of polyandry. Within 24 hours she was on a return flight to Kathmandu. The Supreme Court had intervened. A habeas corpus petition brought by former human rights commissioner Mohna Ansari in Nepal’s Supreme Court was decided in Ruby Khan’s favor. 

The case was so peculiar that the Supreme Court justice who ordered Ruby Khan’s release cast doubt on the Nepal Police’s use of its arrest powers (Supreme Court Case No. 078-WH-0068, written decision dated October 14, 2021). Ruby says she was told repeatedly by police that she would be released if she stopped the protest.

READ THE RECORD’S NEWSLETTER ON RUBY KHAN: Long walk to justice

Ruby Khan’s experience would be the stuff of a novel if a sufficiently imaginative writer could be found. But who would believe the plot? A woman leader marches for 20 days to seek justice for a victim of domestic violence. The result? She is arrested, flown back to the starting point of her walk, and given the choice of jail or silence. Why? Because her marriage is in question. 

Many things are in question. And most of the answers involve a nine-letter word — arbitrary. 

Arbitrary is the opposite of just

Intuitively, we all know that Nakunni’s death had something to do with Nepal’s weak rule of law. But we lack a solid, shared way to talk about the rule of law. Most definitions of the rule of law start and end with lawyers and lawyerly ideas. This often leaves average folks  — non-lawyers  — out of the discussion. 

For example, the influential World Justice Project describes the rule of law in a familiar but legalistic way: as just and legitimately created laws to which all are equally and fairly accountable, and which are independently, impartially, and competently adjudicated. This tells part of the story, but it is not easy to grasp for the average person, and it leaves out the most important part. 

This part begins with the experience of average people. It says that rule of law is a social good, not just a legal and institutional good (although that, too). The rule of law is a social good because of its purpose — to protect citizens against the arbitrary use of power. 

What is the arbitrary use of power? We can define it best with examples. It is the power of a husband who routinely uses violence against his wife. It is the arbitrary power of a state that may or may not investigate a case depending on its political significance or social norms. There is the arbitrary power inflicted on the Dalit woman standing in floodwaters up to her knees at a water pump that only delivers contaminated water because her higher-caste neighbors refuse her access to a clean water source. There is the arbitrary killing of a young environmentalist in 2020 in Dhanusha who dared to challenge the illegal mining of riverbeds that is destroying farmland.

The closest Nepali translation of ‘arbitrary’ might be: ‘swechhachari’ or ‘manomaane’.  We have plenty of history to reflect on the arbitrary dictates of institutions like patriarchy, caste, and other institutions of power; what economists and sociologists call the ‘rules of the game’. The power might be exercised by the state, by private parties, or more usually by some overlap between these sources of power.

What do all these experiences of arbitrariness have in common? Three things. In each of these examples, those who experience arbitrary power do not know:

• what to expect from the use of that power (unpredictable);
• how far the power can go in its impact on us (uncontrolled); and 
• whether our personal dignity will be respected (lacking any recognized criteria of respect). 

For those wishing to explore this further, a good place to start is with Martin Kreygier, currently at the University of New South Wales in Australia: ‘What’s the point of the rule of law?’

Arbitrary use of state power against protestors

Sitting together at Maitighar Mandala on Friday night, October 8, eating dinner with placards at their side, feet swollen and blistered, it should have been possible for these 11 women and three men to predict that their right to freedom of expression and public protest would be respected. 

Instead, the peaceful protestors were arrested, rounded up, and placed by riot police in mobile prison trucks. Did they know they would be arrested? How could they know with any certainty? Nothing about their actions violated the law. Did they know where they were being taken? The charge? How long would they be held? Again, how could they know? Nothing about their detention met clear legal norms. 

Legally, the state needed to show that the presence of these individuals at Maitighar Mandala presented an immediate threat to public order or safety and that their arrest and detention was the most minimal restriction available of their right to peacefully assemble. Was no less restrictive alternative available? Did the police offer to relocate them to a safer part of the traffic island? What grave consequence to public order and safety did the state fear?

The state’s duty

How should the law defend the equal dignity of someone like Nakunni Dhobi? Often, when we read about the state’s duty, it appears to end with an investigation, prosecution, and punishment related to individual cases. But there is one more part of the duty to ensure accountability that goes beyond the individual case. This is the step of prevention, avoiding a repetition of harm. 

This may require new or better laws or a change in how police and justice officials do business or better public awareness of the pathways to justice. 

For example, if a woman is beaten by her husband, what can we expect from the state apart from the vital duty to discover and respond to the truth through investigation and prosecution? Nepal’s many women’s organizations and human rights defenders have long suggested the answer: survivors of gender-based violence deserve pathways to immediate safety and then to recovery.  This will avoid the situation of Nakunni Dhobi  — left without hope.

It is difficult to supply this hope in a sustainable, comprehensive way. For example, most men who beat their wives do so without worrying or even imagining that the state might intervene. If police do become involved, often it is not the law that is applied, but rather patriarchal social norms and processes that more or less still resemble the old Panchayat system. For example, after a victim goes to the police, it is common to hear among community members, ‘Oh, the police called the Panchaya’. This means the police have referred the case back to the community, into the hands of traditionally male leaders. The result? Women often end up returning to situations in which they continue to be at risk of violence. She is unlikely to go back to the police.  

For some, suicide may become the only imaginable option. Others suffer violent death at the hands of perpetrators. Still others are caught in endless and vicious cycles of violence.

In direct contradiction with this daily reality, international and Nepali law are clear: domestic violence is not a private matter. The state must intervene to protect anyone, including women, against violence, wherever it occurs. It is not even a matter of discretion. It is the state’s duty and the victim’s right.

These pathways need sustainable public funding, competent management, and psychosocial capacity. Crisis centers that provide holistic support are already part of the Nepali experience, but would anyone argue that they are sufficiently funded and victim-centric? 

Survivors also need police to take this violence seriously, with officers appointed at a high enough level to enforce laws and create trusting environments for victims. 

Police need to work with communities and other state agencies to change social norms that enable violence to continue. This social change process is also part of the state’s duty. But would anyone credibly argue today that the state is committed to this social change? The answers need to be shown with action, not merely rhetoric.

Whatever the solution, doing nothing is a violation of the state’s duty. It merely invites continuing cycles of violence. By taking action, the state sends a message: your dignity and equality will be defended. 

Solidarity against arbitrary use of power

All of the protestors arrested on October 6 are now free. No doubt the blisters on their feet have healed. Other wounds will take longer to heal. Ruby Khan and other human rights defenders are taking more steps to raise public awareness and urge action, but it is too early to know the outcome. As for Ruby’s polygamy case, it is still pending in the District Court.

The Government has set up a ‘probe committee’, as is often the response when cases become matters of public pressure. Will this committee have the same fate as so many others? What about the fate of women facing domestic and other forms of gender-based violence: will that violence be subject to more control? There is currently no reason to think so. What about those who marched 500 kilometers? Do they feel that their dignity has been affirmed? What will others learn from their story?

To push these questions to their conclusion is to value social solidarity. There is no doubt that the women’s march and the Supreme Court decision have affirmed the equal dignity of us all. We owe them gratitude for that. Now it is up to all of us to keep that message echoing through the halls and streets and dusty rural roads that lead to all of the openly hidden forms of arbitrary power.

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This article has been updated to correct an erroneous date. The protestors were arrested on October 6, not August 6.