The mandate of transitional justice commissions, formed two years ago to investigate incidents from the insurgency, expires on February 10. Given the preparation and progress made, the Truth and Reconciliation Commission (TRC) and the Commission of Investigation on Enforced Disappeared Persons (CIEDP) will not have begun formal investigation into the incidents of the conflict period by when their mandate expires. 

The Enforced Disappearances Enquiry, Truth and Reconciliation Commission Act, under which the commissions were formed, has provisions for an additional year of extension of the mechanism. Although the government has not officially announced an extension, the commissions have prepared a work plan for the third year as well. The TRC and CIEDP aim to start investigation from 2017 and complete all tasks within the same year. 

The apparent abysmal performance of the commissions, stakeholders say, was due to non-cooperation from the government. The government neither streamlined legal provisions, nor provided logistics to the commissions in the past two years. The human rights community detached itself from engaging in the process, as there still are legal lacunas in the transitional justice act that are not up to par with international standards. Rights defenders have been demanding amendments to the Act, but the government has been turning a deaf ear to the call for legal reforms. 

In January 2015, the Apex Court had struck down a dozen provisions of the Act that were inconsistent with ‘international laws and transitional justice norms’.  According to the ruling, the government is required to define the difference between ‘serious crime’ and ‘crime of serious nature’, removing statute limitation on the reporting of incidents of sexual assaults, as well as statute of limitation for the registration of cases against perpetrators found guilty by the commissions.

The amnesty provision of the act was the most contested issue of all. The court verdict ruled out amnesty to serious crimes, which includes murder, torture, disappearance and sexual assaults. But the government has not streamlined the provisions in line with the verdict, which has created doubts over its intention to prosecute perpetrators. 

Two coalition governments were formed after the formation of the commissions. The coalitions were formed with promises of amending laws in order to expedite the transitional justice process. When Prime Minister Pushpa Kamal Dahal assumed office in August 2016, he made a public commitment to conclude the transitional justice process, the last remaining task of the CPA signed in 2006. The commitment from the former supreme commander of the rebel army gave hope to conflict victims. But even after five months in office, PM Dahal has not been able to amend the law, let alone facilitate the process.

The government is yet to criminalise torture, as well as acts of disappearance. An anti-torture bill was registered in the Parliament Secretariat two years ago. It was prepared in a hurry to initiate repatriation of Nepal Army Col Kumar Lama, who was arrested in the United Kingdom under universal jurisdiction. Since Col Lama was released on September 2016 due to the lack of evidence to prove him guilty beyond reasonable doubt, the process of endorsing the bill immediately slowed down. The bill, which will not be applicable to conflict-era cases as it is not retrospective, has not been tabled in the parliament for deliberation till date.

The CIEDP had forwarded a draft bill on criminalising the act of disappearance to the government last year. The draft has never been an issue for political parties or the human rights community. If the government does not pass the law, the commission will not be able to prosecute perpetrators. 

The commissions have been running with one third of the required number of staffs. As per the law, the government is supposed to provide the commission with staff. A government approval is also required for the commissions to hire staff on contract. However, the government has neither supplied staff nor approved the hiring of employees on contract so far. The government has also been ignoring the commissions’ proposal for legal reforms and requests for budget and staff. 

The current collation of former warring parties during the insurgency seems to be delaying the transitional justice process to avoid action against their leaders and cadres. Nepali Congress, the then ruling party, is protective of the security agencies, while the Maoists are protective towards their own leaders and cadres. Trial of Col Lama under universal jurisdiction had prompted security agencies and political parties to expedite the transitional justice as they fear their leaders and officials might face the same fate. Prime Minister Pushpa Kamal Dahal even cancelled a scheduled visit to Australia fearing possible arrests. 

The debate of constitution amendment, impeachment and election has pushed the issue of transitional justice to the back burner. The transitional justice issue has become a part of a larger political package deal, including power sharing, delineation of province, elections and others. The entire process is likely to get stuck here until a new political agreement is reached on implementation of the new constitution. 

Lackluster performance of the commissions is a huge disappointment for the conflict victims, who have been waiting for justice for decades. The victim community has even lost hope that the commissions are serious about their tasks. 

When the commissions were formed nine years after the signing of the Comprehensive Peace Agreement, the conflict victims decided to engage with them. Despite rights advocates’ call for boycotting the commissions, the victim community took a position of ‘critical engagement’. The Conflict Victims Common Platform (CVCP), an umbrella organisation of the victims who suffered at the hands of the state and the rebels, decided to facilitate the process by cooperating with the commissions in collection of complaints, evidences and testimonies of witness of the incidents. The CVCP supported the commissions in collecttion of over 60,000 complaints, the only achievement of the commissions so far. 

A section of the rights community argues that the commissions were set up to whitewash crimes committed during the war. Rights defenders believe that the commissions neither command trust of the victims nor hold moral authority to investigate insurgency cases. They believe the commissions were formed without consulting the victims and by ignoring the Supreme Court verdict to make the process victim-centric. They have even called for a boycott of the commissions in the past. 

Victims want closure to their cases. They are the ones who have gone through emotional, social and economic turmoil because of the war. It is not just an issue of impunity but also an issue restoring social cohesion and peace. We have had enough debate on prosecution or amnesty. It is time we think, beyond the legal regime, but rather the situation in which conflict victims have been living in for all these years. Some victims simply want the warring parties to acknowledge that suffering had been caused and the issuance of apologies. They want truth, recognition and reparation. But what the state has to gain after the process is concluded is  just as equally crucial.