Never-ending transitionNo government has worked on developing a national policy to deal effectively with the past
Ram Kumar Bhandari & Erik B Wilson
Since the signing of the Comprehensive Peace Agreement (CPA) in 2006, Nepal has experienced 10 years of so called ‘transition’. By and large, all governments during this period prioritised their own political interests and disputes over power sharing within the government, to the detriment of a truly sustainable transition that would lay the groundwork for a more prosperous country in the future.
This political infighting and failure to establish a sustainable transition has resulted in a sort of societal amnesia. The 10-year-long war, Madesh and Janajati movements, fast-track constitutional crisis, even the catastrophic earthquake of 2015 that left countless people homeless and struggling are all examples of significant challenges that have been all but forgotten. Most importantly, the victims’ and people directly impacted by these various challenges have been forgotten, their struggles, demands and agenda against injustice and impunity discarded.
There must be a movement to end the short-term political bickering that is plaguing Nepal. Serious effort should be made to reprioritise victims and their agenda for justice in order to create a more equitable society that functions for everyone and addresses the needs and concerns of the majority of people, not simply the wants of politicians.
From the start of the peace process in 2006, victims’ agenda has been overshadowed by the political deal-making of those in the government. The political incentive structures and resulting agreements ensure that the concerns of victims will be at best utilised for short-term political gain and at worst completely ignored. For example, both the previous nine- and recent seven-point agreements among parties create incentives for intervention in the commission process and focus on amnesty. Politicians protect one another and ignore the past in favour of political reconciliation. Neither agreement affords any sort of protection mechanism to ensure the safety of victims and witnesses. Furthermore, the affiliation of commissioners to political parties as well as security institutions suggests a weakening of the investigative process and creation of an environment that serves to protect alleged perpetrators for false reconciliation. In the end, the incentive structures have produced a politics of victimhood, where politicians serve their own interests by focusing solely on legal solutions that become deadlocked in the government and by not partnering with victims, the one group of people most integral to a sustainable peace process.
Governing difficulties since 2006 have also resulted in poorly formed and weak transitional institutions, namely the Truth and Reconciliation Commission (TRC) and the Commission for the Investigation on Enforced Disappearances (CIEDP). After their formation, both the commissions have received many complaints concerning senior leaders, security forces and other individuals involved in war-time incidents.
There is little consensus on how to proceed with these complaints; there is no political support or security intervention. There is a distinct lack of adequate resources, both human and financial, meaning that these commissions are struggling to function properly and fulfil their mandates. Thus it is impossible for the commissions to establish any sort of historical truth concerning the events that took place and in turn what actions must be taken to reconcile these grievances. In the end, the commissions serve as window dressing in the sense that their existence suggests that the problem is being addressed, but their bootstrapped reality means that in practice nothing is truly happening.
The challenge we face is the creation of a political environment that allows for the prioritisation of victims’ needs and policy agenda that will support the same. This begins at the most basic level—ensuring that the government is not staffed by known perpetrators, people that will only further entrench the culture of injustice and impunity. The fact that many known perpetrators staff the current government and security forces means that there is an ongoing risk to activists as well as the viability of the commissions.
Additionally, torture and enforced disappearance have yet to be criminalised and there remain few resources allocated for investigation. A failure to amend the Enforced Disappearances Enquiry, Truth and Reconciliation Commission Act is likely to cast serious doubt on the general work of the commission and the viability of any final reports.
The challenges that we face are many and the road to true reform is long. In the immediate moment, the commission act must be amended to correctly criminalise torture, disappearance and rape to establish an acceptable foundation upon which legal action might be pursued in the name of victims. Additionally, the regulations for investigation and reparation policies must be amended to address victim’s needs to ensure their trust in the transitional justice process.
The government must develop clear policies to address the past in consultation with victims’ community. First and foremost, the Commission act must be amended in line with the Supreme Court verdicts, respecting victims’ dignity and implementing the National Human Rights Commission’s (NHRC) recommendations relating to the conflict-era cases. Until now, every government has worked according to its own political line of thinking without developing a national policy to effectively deal with the past. Interim relief money was distributed without policy measures while other efforts like psychosocial support or memorialisation seemed very short term, superficial and generally mismatched with victims’ priorities. Currently, the major parties in government do not have common understanding or policy platform around transitional justice. Such an understanding must transcend a strict legal view and political angling to consider the issues from a humanitarian perspective.
In addition to developing clear policies, the government must address the issues of the Commissions. To date, the commissions have seemed very state centric. They have struggled to develop civic trust and have only alienated the victims’ community. They have no help desks or connection points to the district level victims’ groups.
They have no advocacy division to gain solidarity from the public and lobby for rights agenda in line with victims. They are, in effect, lost within the state agencies, subject to political gamesmanship, without any clear roadmap for progress. There are no protection mechanisms for evidence or case archives. Indeed, the commissions themselves are not clear that what would happen to the pending cases after the commissions come to an end. The NHRC must play a crucial role in this process. As a constitutional body, it has monitoring mandate and can deal with the pending cases further.
In short, there is much to be done, and many measures that the government can adopt to improve the current situation. There must be national momentum through localising discussion on transitional justice, socialising victims’ agenda for truth, justice and reparation for social healing/reconciliation, and mobilising existing resources and institutions. The NHRC, victims’ community and civil society must exert joint pressure to shift gears and correct past mistakes. Social intervention and civil resistance could be the way to correct faulty commissions and government functionality to promote a sustainable future for all of Nepal.
Bhandari is General Secretary of the Conflict Victims Common Platform; Wilson is a development professional working on transitional justice issues in Nepal