Long road to justiceConflict victims have been waiting and waiting for transitional justice bodies to act
Nepal’s transitional justice commissions will finish their two-year mandate in February. The Truth and Reconciliation Commission (TRC) and the Commission for the Investigation on Enforced Disappeared Persons (CIEDP) were established in 2015, eight years after the Comprehensive Peace Agreement (CPA) was signed that ended the 10-year ‘People’s War’.
The TRC and CIEDP were given a two-year mandate to deal with human rights violations that took place during the armed conflict that lasted from 1996-2006. They are also mandated to recommend to the government to pay 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.
TRC Chair Surya Kiran Gurung said, “We have recommended amending legal provisions, and have asked the government many times to provide the necessary staff and financial and technical support to allow the commission to perform its work, but we haven’t got the required assistance. And we are still waiting for a new amended act that will extend the mandate and adequate resources that will open the door for external support to the commission.” Likewise, CIEDP Chair Lokendra Mallick said, “The government should provide legal and logistic support so that we can proceed with investigations into the complaints received. The government should criminalise acts of disappearance. Without a law on disappearance, we cannot recommend prosecution.”
The amendment process has been sidelined due to other political business, and political parties do not seem likely to move the proposed amendment forward. Immediately after assuming office last August, 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’s verdict. However, no progress has been made.
The CIEDP and TRC received 2,886 and 58,000 complaints respectively from conflict victims in 2016 alone. Both commissions are unable to proceed further for lack of human resources and technical assistance. There is a communication gap between victims and the commissions; there are no local offices to directly interact with conflict victims in rural districts. The commissions are based in Kathmandu, and they lack policies and strategies for reaching out to victims’ families. Conflict victims and thousand of families in rural areas have not been updated on the commissions’ progress in Kathmandu.
The Supreme Court has directed the government to consult conflict 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 requires the government to consult with the National Human Rights Commission (NHRC) before amending laws and drafting bills related to human rights, but it has not done so. NHRC Chair Anup Raj Sharma said, “The commission has not been informed about any amendment to the act, even after we officially requested the government for a copy of the draft amendment. Bringing a law discreetly is not a democratic practice at all, and it doesn’t address the victims’ demand 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 on 735 cases of grave human rights violations, of which 105 were implemented. All 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 the Nepal Police, the alleged perpetrators.
The Mallick Commission (1991) and the Rayamajhi Commission (2006) were established to investigate human rights violations during the People’s Movements I and II. The government never made their reports public and never implemented their findings. The NHRC is now preparing to publish a list of the alleged perpetrators to create pressure on the government. The NHRC chair has emphasised the need to take “immediate action against rights violators and to be critical about the government instead of the transitional justice bodies”.
Root causes of conflict
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 flaws in the process, streamline acts as directed by the apex court, provide adequate budget and staff and widen the scope of 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 the victims. This is the right time to contribute to the process and assist the victims in their struggle for justice by providing avenues for them to share their expertise and resources, rather than weakening the process through their further marginalisation.
Reviewing the role of rights agencies, politicians and the state, it appears that the transitional justice process appears to be purely legal and focused on civil and political rights. This may not address the victims’ needs or the root causes of the conflict, namely structural violence, poverty and exclusion. Efforts to address the victims’ needs and history of exclusion must be reflected in the approach to reparation and non-repetition of conflict. The long wait of the victims must end. Both commissions must work for them by 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.
Bhandari is an activist and a PhD researcher at NOVA Law School, New University of Lisbon