REVIEW OF DISASTER LAWS IN NEPAL

Executive Summary

This document is primarily concerned with issues of disaster management system in Nepal, and the material presented in the following six chapters has focused on synthesizing and analyzing theses issues from a sectoral perspective. However, analysis of a number of broad development of human rights, international humanitarian laws, Constitution of the Kingdom of Nepal, legislations and policies and experiences of few other countries have been made to provide the correct picture of disaster management system and certain recommendations have been offered for effectively addressing disaster management problems in Nepal.

Legislation is the tool for implementing disaster management policies and programs, wherever special powers, rights or responsibilities need to be defined in law. Since, modern international human rights and humanitarian laws have converted right to security, rehabilitation, and resettlement and right to have a dignified life even in disaster situation as a right to life and right to receive assistance in a humanitarian standard as a part and parcel of human right itself, Nepalese legal and policy framework has not adopted the same in practice till now. Nepalese legal system is charity based but not right based. For this, overhauling of the existing legal and policy instruments and formulating of new legislation and new policies in this sector is necessary.

Laws are, however, only tools; how laws are enforced is equally important. The capacity of government agencies to enforce disaster laws has been limited in the past. Disaster Management legislations in Nepal to date, have been piecemeal, and many loopholes militate against prosecuting those who violate the law. Many important areas of disaster concern are covered by insufficient legislations for example, Environmental Protection Act, Water Resources Act, Forest Act, Local Self-Governance Act, Soil and Watershed Conservation Act, etc. Only Natural Disaster (Relief) Act, 1982 is the special legislation on disaster management that too is post disaster oriented and does not address preparedness aspect. Future legislation will need greater efforts to include these aspects and to assign institutional responsibilities, and to define the mechanisms by which laws and policies will be enforced.

Appropriate institutional mechanisms are needed to implement laws and policies effectively. The past inability of government agencies to implement the law and policies is related to many factors. Past attempts by governmental institutions to control disaster management from central to local levels have failed. Complex structure and infrequent meetings of Central Committee, non-formulation of local level committees, and non-decentralization of the central power to the regional committees are few of them. For this, a new institutional arrangement has to be made.

Government has formulated few policies, plans, strategies and programs in this field. For example: Tenth Plan, National Action Plan on Disaster Management in Nepal, Water Resources Strategy Nepal, Agricultural Perspective Plan, The Master Plan for the Forestry Sector, Nepal Environmental Policy and Action Plan, Shelter Policy, etc. are some of them which are directly or indirectly related to disaster management system. As policies do not have legal sanction, they are not binding and not enforceable by the court on the one hand and on the other hand, they are piecemeal and do not include all aspects of disaster management. These policies have to be developed that present a framework for integrating disaster management concerns, poverty and development planning process from village level up to central governmental line agencies. One method of trying to ensure sufficient consideration is given to integrating disaster considerations with development objective is through use of anti disaster techniques during planning stage of a project or program. The main objective of such planning process will be to provide a framework for analyzing the potential adverse impacts of projects during disasters and to develop mitigating measures to minimize the impacts.

Lack of developing linkages between mitigation, preparedness, relief and reconstruction; links with NGOs and Red Crescent Societies; disaster management training; regular research on disaster management; political consensus; public awareness-raising programs are other gaps on the existing policy and legal framework.

Disaster issues are varied and complex. It is not possible to address all issues and to solve all problems at the same time. Resources are scarce and institutional capacities are limited. To implement the policies and actions outlined in newly framed legislation and policies effectively, a series of supportive measures are needed in the areas of institution building, economic policy, legal and regulatory provisions, and public resources allocations. There is wide range of institutional arrangements available for improving disaster management. In keeping with the importance attached to the process of decentralization by HMG, new policy and legislative framework should give greater role to local agencies, including local governments, and non governmental organizations as well as to the private sectors. Village level should be made the principal vehicle to plan, implement and monitor local-level development and disaster management activities. NGOS should be encouraged to play active role in this process.

Disaster has close relation with poverty. Poor and marginalized are the first victims of any kinds of disasters due to their settlement in the disaster vulnerable areas. The close inter-linkages between a limited resource base, rapid population growth, growing disaster risks, low levels of social development and widespread poverty present a complex development challenge, which require ensuring economic development and poverty alleviation on a sustainable manner. Since, safety and security of vulnerable groups-women, dalits, ethnic minorities and other marginalized groups is first threatened by any kinds of disaster; such linkages will have a greater role to mitigate such challenges. A number of policy initiatives and sectoral action programs are required to be developed covering all these issues.

Policies aimed at improving the quality of life of the poor therefore need to tackle poverty, disaster management and population issues simultaneously, through targeted programs that assist the poor directly; disaster management programs that emphasize the need for community management of resources; and programs aimed at reducing the number of children families must provide for.

In some sectors there is a need to enact basic legislation and formulate certain policies as stated above. In others there is a greater need for developing mechanisms to implement existing laws. Economic incentives, rather that centralized regulation, often offer an opportunity to encourage disaster management friendly actions and discourage environmentally damaging ones in a cost-effective manner. The laws and policies need to be carefully directed toward a better stewardship of the country's threatened natural resource base, eco-system and worsening environment.

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DISASTER MANAGEMENT IN NEPAL : DISATER REVIEW 2004

Executive Summary

1. Disaster is unexpected phenomenon, which damages the natural calamities such as flood, fire etc. The ways of minimizing the disaster effects are multifarious. Its consequences are poor services of infrastructure, less agriculture productivity, poor drinking water, and irrigation and hydropower facilities. Migration, starvation, deaths, beggary, suicide, disability and illness. It also causes significant economic loss, erosion in social and financial capitals, psychological dislocation and widespread physical injury and death. Especially the poor and disadvantaged people are more vulnerable from the disaster because of their poor access to and control over the available resources.

2. Still there is orthodox thinking that disasters are occurred as the wish of god, so cannot be protected or prevented. These types of thinking are still deep rooted in the people's mind. As people are still believed in fate, they became more vulnerable after disaster.

3. In this background, the major objectives of the study are review the policy and national priority for disaster particularly focusing the impact of emergency and disaster in Nepal. The broad framework of this study is to review the disaster in light of the year 2004. The study methodology includes review of secondary documents; designing of instruments (checklist, guide questions), interaction with duty bearers, right holders and stakeholders; collection of field data, and analysis and reporting.

4. In Nepal, some initiation on formulation of strategy and legislation are seen to cope with the emergency and disaster problems. There are various plans, strategies, policies and legislation that have been spelt out for the provision of the disaster management. These policies, plans and strategies includes Natural Disaster Relief Act (NDRA), Disaster Preparedness Plan of His Majesty's Government of Nepal, National Water Resources Strategy Formulation (2002), Tenth Five Year Plan (2002-2007), National Action Plan (NAP), National Adaptation Program of Action (NAPA), The Constitution of Nepal (1990), River Control Policy, Watershed Management Policy, Formulation of a Comprehensive River Law, Local Self-Governance Act (1999), Building Act (1987) and Building Conservation Act (1993), Biodiversity Strategy (2002). People have little knowledge about national policy, strategy and Acts. Both state and private sectors are responsible for it. To cope with disaster effects, people participation and the role of civil society and broad range of stakeholders interaction are needed. Community based disaster management initiatives are still poor. There is no appropriate preparedness approach for disaster in advance mobilizing the human and natural resources.

5. The main concept of the disaster management is of two folds: risk reduction and risk transfer. The activities fall under the category of risk reduction are: plan pre-disaster with immediate post disaster response, identify hazard prone areas, establish early warning system, raise awareness level of people, and disseminate information for creation of temporary housing and life support systems. Similarly, risk transfer can be managed by establishing the insurance of property and crops. There are two types of reasons social/institutional reasons and technical.

6. When disaster strikes in the community, the priority becomes the management of risks, because if they are managed ineffectively it can lead to another disaster. In order to avert danger and vulnerability from risks, formulate both short and long-term mitigation strategies and measures are needed.

7. It is necessary to make inventories of potentially dangerous landslides based on the risk of harm. For this, the knowledge of local people is vital so inter-stakeholders interaction meetings have to organise time-to-time to share the ideas and expertise/technical backstopping. Relevant studies and the demonstration plots have to be commenced partnering with the communities to motivate/encourage the through practical exercises.

8. Good coordination among the various stakeholders is fruitful to implement the disaster mitigation measures at local level. And effective coordination is possible if their roles and responsibilities are defined and analysed properly. No one can deny the fact that leadership skills of all stakeholders are needed to manage the disaster efficiently. So, to enhance the leadership skills of community, the role of community, NGOs/CBOs, market and government.

9. Until now, disaster is understood as a purely the science of geo-physical and engineering knowledge. As a result, the important of social and institutional knowledge in the shadow. But gradually, these knowledge is given to emphasis. The indigenous knowledge, skills and experience of the local people are very much instrumental for disaster management. There is general tendency that, people depend on government and NGOs/private sectors even when for small-scale disaster. Apart from these simple measures, analysis of threats vulnerability, analysis of capacity building, formulation of risk mitigation strategy, setting targets, yearly action plan preparation, implementation are equally important to mitigate the disaster.

10. Disaster preparedness and its mitigation are not only the responsibility of duty bearers, stakeholders but of right holders also important. Many communities in disaster prone areas have successfully demonstrated that it is possible to marry disaster mitigation initiatives, social security programs and help improve the resilience of communities vulnerable to natural disaster.

11. Every year, thousands of families especially from the eastern terai are being homeless. These homeless people are settled under the tent and plastic roof for the temporary relief programs. Mostly disadvantaged, minorities caste group, poor families are affected from disaster. Due to the poverty, unemployment, dry season and storm, the people living near by the disaster-affected area are being under the situation of vulnerability. Among them, pregnant women, disable people, old aged people are found more vulnerable. The poor, family residing near by the rivers, people residing in the laps of Churia, people displaced by the landslides and floods are affected from disaster.

12. The effectiveness of disaster management is based on the strong co-ordination among the government and private agencies. Community initiatives and local techniques on disaster are not still fully recognized by both state and private sectors.

13. Disaster preparedness is an important to minimise the effect on the disaster. It helps to prepare secure place, conserve people’s life and wealth, decrease in the injured cases during disaster, save the infrastructures from destruction and develop capacity of the community to tackle with disaster. The preparedness activities also help to provide immediate rescue during disaster, formation of local organization to resolve the disaster problem and disseminate adequate information and supports during disaster. Sometimes disaster helps to increases solidarity among the people and groups thus increase their collective bargaining power and supports for influencing their own agenda.

14. The vulnerability situation depends on family, community and hazards. Due to the socio-economic condition and lack of awareness among the people of the community, they are not been able to face these hazards, so there condition is being vulnerable day by day. Other hazards related to vulnerability also depend on the availability of foods.

15. The absence of local government, it is very difficult to get realistic information about the disaster victims. Hence, it is difficult to identify who are actually victims and who are not. Sometimes there is a manipulation in the victims lists. As a result, they are deprived from the services i.e. relief.

16. In the rural area, people run their livelihood through agriculture, livestock, daily wage labor, forest products, small business, service and foreign employment. The livelihood is disaster victims who reside in the lap of Churia largely depends upon the collection of firewood from forest. Some people run small vendor shops, tea shops nearby highway. Majority of them have low income group, who are dependent and work as daily wage labours. Those people who have some vocational skills such as carpentry brick maker and able to cope with disaster than people who have no skills. The sustainable livelihood framework helps to motivate people why collective action is necessary and hence helps in increasing their participation and solidarity.

17. There are many problems and challenges that are considered as obstacles in managing the emergency and disaster in time. Problems and challenges are categorised in to four folds i.e. institutional, social, administrative and technical. The institutions involved in the rescue and relief work are inactive because of poor institutional capability. Despites of several efforts, coordination is still poor both at centre and districts. The inter-minister coordination is also weak. The rehabilitation process is often complex and expensive. NGOs are involved in relief and rescue not in rehabilitation program. Though policies clearly spelled the provision of adequate support and rescue effort, but the committees are not providing relief to the affected people.

18. Due to poor awareness level of people, the distribution is not transparent. Due to lack of education, ignorance, training and exposure, the perception of some rural people is that natural disasters are the act of god and consequence of fate. The problem of unemployment also discourages the people to think about disaster in advance. They are suffering from vicious circle of poverty. Due to the existing conflict, NGO's are not willing to work in conflict affected area, but till now there is no notice that Maoist are barriers in the disaster management. Only well-off and elites have access to support from DNDRC as majority of the members are from the representatives of district line agencies (DLAs) and some social worker but not from disaster victims. Till now, natural disaster never a political commitment and election agenda for the politicians.

19. Lacks of sufficient resources are the major problems. The process to Nikasa (release the fund) of government is very complex. Though there is a provision of central, regional district and local level support fund in the policy but in some district there is always more than enough fund whereas in some needy district there is scarcity of funds. The agencies involved during rescue and relief have no clear-cut job description. So, it is a matter of disputes and conflicts.

20. Lack of technical manpower available on time is also the problem. Due to difficult geo-physical condition, inadequacy of infrastructure facilities, the transportation materials are difficult to deliver. The first reason of flooding in the terai for several days to months is due to haphazard construction from VDC funds without technical supervision.

21. Among the disasters, water-induced are more crucial and repeated every year. People have lack of knowledge about the provisions of Building Code. The available information and knowledge are sufficient to formulate simple policy and plan of action.

22. Now it is time to think towards the provision of crops and livestock insurance to encourage the people in the disaster and emergency activities. The disaster laws of Nepal are basically focused on post-disaster relief and response, but it is equally important in preparedness too, which includes the right to notice of the future disaster of the vulnerable people. Natural Disaster Relief Regulation (NDRR) yet to be formulated through it is essential.

23. The agencies working in disaster sector have some sort of technical knowledge on mitigation, early warning system, emergency rescue and relief operation, rehabilitation and recovery plans.

24. Emergency management trainings are necessary to the people who have to involve directly in the emergency not for the people who work in the centre and just guide others. It is equally important to disseminate the information on how emergency and risks could be mitigated at local level through series of public education materials in form of pamphlets, posters, emergency manual, documentary show and miking. The information on risk mapping and zoning should be disseminated to relevant agencies, local authorities and communities to impart knowledge and practice on risks and immediate plan of action to mitigate (i.e. relocate villages, distribute the relief, manage temporary settlement). It is equally necessary to organize the formal and informal meetings at local level to review the findings of the past studies and research. It helps to change the perspectives of people and motivate them in action. Disaster management issues have to be addressed both at community level through the literacy text and to university level through text book.

25. The disaster and emergency plans/policies can only enforce if there is strong institutional set-up. Disasters can be mitigated with the use of technical expertise of relevant agencies (government, non-government and private sectors). The meetings of CNDRC is only limited during the emergency period.

26. Adequate funds and resources are needed for repair and maintenance of infrastructure but before it, concrete plans should be formulated specifying the role of agencies involved. Effective coordination among the central and local government is necessary to translate the plan in to action. For it, MoHA should take the lead role. The low-cost technologies are needed to establish the early warning systems, risk mapping of hazard prone areas. Disaster management component should be incorporated in five-year plans more minutely as priority sector. The MoHA should take active role in the amendment of Act. In light of its amendment, the basic preparation for the formulation of regulation should be carried out. It is better to allocate a separate agency (autonomous) to deal all sorts of disaster preparedness, mitigation and rehabilitation works. The government should formulate the plan of action to enforce the Building code and disseminate its major provisions to all. The government should establish the human rights of disaster victims (sustainable environment rights, housing and habitation rights, social security rights and institutionalise rights) with an integrated approach. The role ands responsibilities should define more clearly.

27. There should be joint initiatives of government, I/NGOs and private sectors for rehabilitation. The resettlement and rehabilitation program should be brought as a package program. There should be the provision of proper monitoring and evaluation of ongoing activities. The NGOs can be mobilised to manage the relief material (collection and store in the disaster prone area for quick delivery). The rescue groups should be formed and trained properly.

28. It is necessary to strengthen the capacity and capability of local people and CBOs. If so they can do preliminary rescue and relief works right after the disaster. Intensive awareness campaigns should be organised for review the primary roles, and priority activities to be carried out right after the disaster. It will help to minimise the destruction. In order to win the trust of local people, all activities should be transparent and the activities should be planned and prepared in the participatory ways. Meetings and interactions should be conducted among the stakeholders for the formulation of simple strategies on low-cost-mitigation measures. In order to adopt mitigation measures, it is important to identify the level of threats and extent of vulnerability. Emphasis should be given to conserve natural resources especially forest and land.

29. To improve the livelihood of people, they have to rehabilitate and given special skills to cope with disaster. Crop diversification is also needed to open the opportunity of agriculture labour through out the year. In order to improve the governance, social vulnerability and natural hazards should be dealt together. The formation of policies and legislations is pro poor and marginalized. There is need to detail study on how the society is gradually developed by managing the various types of disaster and emergences, what were the coping strategies in the past and which can be still viable to replicate etc. Disaster and emergency can be managed if the actors opens to interact, discuss with the victims to identify the common problems and effective resource management. For it, awareness, institutional development and political commitment are needed. Disaster and emergency programs should be dealt with economic and right based prospective. The total investment of rehabilitation could be reducing drastically if serious on the preparedness programs. The relief assistance programs should be made simple s that even illiterate people can access to get the relief. The role of NGOs should be widened in managing the relief as much as simple. Structured formats should be discouraged.

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