Transitional Justice in Nepal : Road to Justice or collapse ?

The TRC and CIEDP were mandated with the investigation of conflict era cases. They are also mandated to recommend that the Government of Nepal provide reparations to conflict victims, prosecute the guilty and create an environment for a peaceful future. Unfortunately due to lack of legal enforcement, political will and adequate resources, the commissions have seen little in the way of results prior to their mandate coming to a close. The chair of the TRC, Surya Kiran Gurung stated: “we recommended legal provisions to amend, asked the government many times to provide necessary staff, financial and technical support to the commission’s work, but we didn’t get required assistance, we are still waiting for the new amended act for the extended mandate and adequate resources that would open a door for external support to the commission.” CIEDP Chair Lokendra Mallick adds, “the government should provide legal and logistic support to proceed with the investigation into the complaints received. The government should criminalise the act of disappearance, without a law on disappearance, we cannot recommend prosecution.”

Political parties

The amendment process has been sidelined due to other political business and the political parties do not seem likely to move the proposed amendment forward. Prime Minister Pushpa Kamal Dahal promised to expedite the transitional justice process by amending ‘the Enforced Disappearances Enquiry, Truth and Reconciliation Commission Act’ in line with the Supreme Court verdict, international laws and transitional justice norms to deliver justice to the conflict victims, immediately after assuming office in August 2016, however no further progress has been made since that time.

In 2016 alone, The CIEDP and TRC have received 2,886 and 58,000 complaints respectively from victims of conflict. Both commissions are unable to proceed to further investigation, lacking necessary human resources and technical assistance to end of their mandate. There is a communication gap between victims and the commissions; there are no local offices to directly interact with conflict victims’ communities in rural districts. The commissions are situated in Kathmandu, and lack policies and strategies for reaching out to victims’ families. Conflict victims and thousand of families in rural areas are not updated with the commissions’ progress in Kathmandu.

The Supreme Court in its previous verdict on the victims’ petition (2 January 2014 and 26 February 2015) had directed the government of Nepal to consult victims and guarantee wide consultation with victims to ensure their active participation and representation in the transitional justice process. However, the government has been ignoring the most important constituency of transitional justice, the victims. The constitution has made it mandatory for the government to consult with the national human rights commission (NHRC) for any amendment to laws as well as drafting other bills relating to human rights, the government has not consulted and shared any information with the commission so far--a clear breach of the constitution provision.

Perpetrators

NHRC chair Anup Raj Sharma says: “The commission has not been informed about the amendment to the act, even after we officially requested the government for the proposed amendment draft, bringing the law discreetly is not democratic practice at all and doesn’t address victims demands for truth, justice and reparation”. The NHRC has also complained about the government’s failure to implement their recommendations, many of which have been ignored. In the past decade, the NHRC recommended action in 735 cases of grave human rights violation, of which 105 recommendations have been implemented. All of the implemented cases are related to providing compensation to victims, but not a single person has been held responsible for serious crimes. Instead, the government has promoted and rewarded senior officers of the Nepal Army and Police, the alleged perpetrators. Looking back to the previous commissions such as Mallick commission (1991) and the Rayamajhi commission (2006) to investigate human rights violations of th Peoples Movement I and II, the government did not make the reports of those commissions public and never implemented their findings. NHRC now is preparing to publish a list of alleged perpetrators to create pressure on the government. The NHRC chair emphasized for ‘the immediate action against the rights violators and to be critical about the government instead of the transitional justice bodies.’ In this situation, all actors must create constant pressure on the government to ensure that victim centric laws are drafted and victim-friendly processes are initiated in consultation with victims, rights activists and the commissions.. It is high time for the government to correct the flaws in the process, streamline the acts as directed by the apex court, provide adequate budget and staff, and widen the scope for the transitional justice commissions. Other actors, both agencies and human rights groups who have boycotted the commissions’ work, must re-think and correct their strategies to collaborate with victims groups who have been critically engaging with the commissions, as watchdogs to create pressure on both commissions to work for victims. This is the right time to contribute to the process and assist victims in their struggle for justice by providing avenues for victims to share their expertise and resources, rather than weakening the process through their further marginalization.

Victims

Reviewing the role of rights’ agencies, politicians and the state, the transitional justice process appears purely legal, narrowly focusing on civil and political rights, which may not address victims’ needs in practices or the root causes of the conflict, namely structural violence, poverty and exclusion. To address victims’ needs and histories of exclusion, this must be reflected in approaches to reparation and non-repetition, to avoid future conflict. The long wait of victims must end, both commissions must work for the victims putting them first in every process and building a reparative relationship with them – as representatives of the state and as partners in the transitional justice process.