Unhealed woundsThe Transitional Justice Act must be amended to make fair investigation possible
Nepal’s transitional justice movement is at high risk of being undermined by the establishment, specifically from top level government bodies and security institutions. To marginalised victims and grassroots activists, these institutions are the root of corruption and impunity. The country has seen a major shift in the political environment from violent conflict to peaceful transformation. However, there has been little change in the structure of the government and society, and no change in the security sector regarding those who were directly involved during the Maoist conflict.
The security institutions were directly involved in some of the conflict’s worst abuses and violations of human rights that resulted in hundreds of enforced disappearances and other serious crimes. Many victims of the conflict and rights activists feel greatly threatened by the authorities. The new government has been repeatedly stressing the need ‘to move forward for stability’. However, the justice process cannot be sacrificed in the name of stability or whatever alliance to defend past crimes.
The Truth and Reconciliation Commission (TRC) and the Commission of Investigation on Enforced Disappeared Persons (CIEDP) and affected families face challenges from the political and security structures that have been obstructing investigation and threatening activists. The government never implemented Supreme Court rulings and recommendations from the National Human Rights Commission to address past atrocities. The security forces have also intervened in the court process and threatened individual victims and activists. The Nepal Army, in particular, has not only been intervening in the commissions’ work but has also side-lined transitional justice concerns from the national agenda to purify its past and glorify its contributions to UN peacekeeping missions.
During the South Asian Human Rights Summit held in Kathmandu recently, national human rights institutions, civil society actors and government representatives agreed to amend faulty clauses in the Transitional Justice Act. This may open the door to a fair investigation and wider engagement in the commissions’ work. The Kathmandu Declaration adopted by the summit highlighted the need to address deep rooted impunity in the region and suggested a route to accountability by listening to the victims’ demand for truth, justice and reparation, and protecting human rights as a state responsibility.
During the meeting, Attorney General Agni Kharel argued that “the government was prioritising an amendment to address victims’ demands for truth and justice, and establishing a special court for prosecution of the past violations”. Kharel added that government was developing provisions for a public apology for past abuses and memorialisation as part of reparation, and criminalising enforced disappearance as a crime. Similarly, TRC Chairperson Surya Kiran Gurung said, “The commission will address social, economic and political issues too. It is not only limited to legal measures, and is serious about addressing victims’ demand for truth and reparation.” However, the transitional justice process in Nepal is more perpetrator-led than victim-centric, and excludes the participation, representation and ownership of victims.
Change dearly required
Amending the Transitional Justice Act to create an agreeable environment for all actors to participate in the commissions’ process is a must. The Transitional Justice Act in its current form has no victim/witness protection measures or victim-centred policy. A disappearance law has not been passed, and attempts to criminalise disappearances have time and again been blocked by the security forces. This is an important time to create joint pressure, from bodies at the local and national levels to the international level, and for the Nepali authorities to actively listen to the thousands of victims. The new government should handle transitional demands through a justice lens, and must deal with victims’ demands for social justice and non-recurrence.
All actors involved in transitional justice must come together to build a joint effort on behalf of the thousands of victims and marginalised communities to support their struggle for truth, justice, livelihood, memory and security. The boycott by global actors and rights NGOs also failed to assist victim’s demands. The victims’ engagement in the commissions has succeeded in registering wider complaints. It has also ensured that the transitional justice bodies understand their needs and created pressure to open full investigations, protect the evidences, and establish truth and reparation measures.
The victims’ community has great hopes that the commissions will deliver positive results like categorisation of cases, creation of a national database and acknowledgement, identification of the root causes of conflict, identification of the perpetrators and comprehensive reparation policies besides producing a credible report. To this end, all actors must come together with an effective cooperation modality, more constructive dialogue and regular consultations to advance the partnership further to achieve results.
If the government is serious about amending the Transitional Justice Act, as the attorney general said, should the commissions be given more time and resources? This is important to provide funding, training and technical assistance to the commissions. Much needs to be done to advance the commissions’ role. The prosecution is still confusing, and the special court provision requires more discussion and greater preparation. Contested issues can be resolved through wider and open dialogue. If the government is really serious about providing a solution to the past and not repeating a cycle of violence or revenge in the future, we can develop the best path forward.
Bhandari is an activist and a PhD researcher at NOVA Law School, New University of Lisbon