Have no fearLaws to protect victims and witnesses are essential to ensure a fair judicial process
Nepal is currently home to many serious human rights violations. It is a well-established fact that, for a nation to properly respond to such crimes and achieve justice, victim and witness protection is essential. In this era of human rights abuses and crimes, however, Nepali law continues to lack adequate substantive provisions that protect victims and witnesses during prosecution. The absence of laws that safeguard those who testify often results in de facto impunity for perpetrators. The prevalence of impunity and fear among witnesses supplement each other in a cyclical nature. When impunity prevails, fear among witnesses that the state is incapable or reluctant to provide protection increases.
Moreover, in countries like Nepal that have new and complex political fixtures, the population often perceives perpetrators and their associates as having control or significant influence over state mechanisms and authority. This adds to the public’s opinion that the law is ineffective. These factors decrease victims’ and witnesses’ willingness to participate in trials, which, in turn, increases the prevalence of impunity. Hence, substantive measures that must be implemented include protection from reprisal against victims and witnesses, provisions that allow for the effective introduction of testimonial evidence, and outright assurances of the constitutionally guaranteed right to an effective remedy.
Sexual abuse and trafficking
To be precise, cases of sexual abuse in Nepal often go unreported, leaving perpetrators of rape, domestic violence and trafficking in persons largely unpunished. Due to their fear of retaliation, social isolation and shame, many survivors are hesitant to approach the court and fight for their rights and justice. Therefore, any pursuit of truth and justice will be deficient and shadowed by the vulnerabilities and hardships experienced by the victims of crimes, their families, witnesses and others who aid them by assisting in the prosecution of offenders.
Sexual abuse and trafficking victims who escape their situation often suffer from a combination of physical, mental, emotional and financial harm, which leaves them in a markedly vulnerable position. Due to the nature of their case, these survivors are also particularly susceptible to threats and retaliation for cooperating with law enforcement. They are exposed to further harm when they directly seek justice and are willing to testify against their abusers or traffickers. Therefore, extensive and tailored protection measures for both victims and witnesses of sexual abuse and trafficking in persons are required to correct these wrongs.
The need for victim and witness protection-centric legislation has been greater since the outset of the transitional justice era of Nepal. Thirteen years after the war, the state of Nepal has finally considered a new mechanism to look into conflict matters. Hence, victims and survivors need a legal guarantee that their rights and identities will be protected, and that they will not be threatened for coming forward. Hence, the proposed transitional justice mechanisms will not be successful unless accompanied by witness and victim protection mechanisms to ensure access to justice. Therefore, while the state of Nepal is currently making great strides in settling past conflict matters by introducing new transitional justice legislation, it should duly consider and expedite the introduction of supportive laws that promote and protect the victims’ voices.
Moreover, this new regime must be implemented with a victim-centric cultural shift among government and law enforcement officials in order to be effective. Sexual abuse and trafficking survivors are regularly re-victimised as a result of the treatment that they receive at the hands of the authorities, who are often insensitive towards survivors’ past experiences, and the current difficulties that they encounter in coming forward. Therefore, victims should be provided with assistance before and during the trial concerning the psychological obstacles that they face by agreeing to testify. Furthermore, the officials responsible for facilitating their access to justice should undergo sensitivity training regarding the problems that survivors experience due to their past trauma, age, gender, relation to the perpetrator and the cultural stigma attached to the victims.
Threats to victims and witnesses, combined with the lack of any witness protection mechanisms, erect a serious obstruction in Nepal’s judicial system and prevent thousands of individuals from accessing justice. Without granting protection to victims and witnesses to human rights abuse, a fair judicial process remains nothing more than wishful thinking. Protection measures are, therefore, necessary before, during and after legal proceedings; and, at times, should also be extended to the family members or friends of the victims and witnesses who are at risk of retaliation.
The groundwork for a legal framework that protects victims and witnesses during the prosecution of crimes currently exists in Nepal, though it is scattered throughout multiple sources. Therefore, the current protection measures must be compiled and organised into a clear and comprehensive legal regime that aligns with international standards and best practices. This regime should also evolve to include specific strategies to help victims and witnesses to effectively participate in the judicial proceedings, besides regulations that unambiguously delineate processes for the practical application of victim and witness protection measures.
Devkota is a Loyola University, Chicago graduate and an advocate practicing in Nepal