Opinion : lost opportunities for transitional justice in Nepal

Opinion : lost opportunities for transitional justice in Nepal©DR
A rally of family members of the enforced disappeared_ demanding Independent Commission of Inquiry in Nepal
4 min 31Approximate reading time

 In the 10 years since the end of the Maoist conflict, a number of cracks have appeared in the edifice of impunity erected by Nepal’s politicians. The Supreme Court made a decision against pardoning Balkrishna Dhungel (Maoist leader and former lawmaker) last month; the Kavre district court ordered the investigation of army officer Niranjan Basnet; National Human Rights Commission (NHRC) recommended that the government investigates senior police officers, army officials and political leaders involved in conflict related crimes; the Rayamajhi commission made investigations and recommended the government investigate current Inspector General of the Armed Police Force, Durja Kumar Rai, and foreign Minister Kamal Thapa. The UN Human Rights Committee recently recommended the government investigate senior police officer Pitamber Adhikari, currently police chief of Lalitpur, over Tej Bahadur Bhandari’s disappearance ( Tej Bahadur is the father of the author) and NHRC repeatedly recommended investigation of Raju Basnet, a senior army officer who is alleged to have disappeared 49 student activists from Bhairabnath barrack, Kathmandu chief of police Bikram Singh Thapa, who is alleged to have been involved in the killing of journalist and writer Krishna Sen Ichhuk in custody, and in the disappearance of Bipin Bhandari and many student activists from Kathmandu. Despite such positive developments however, politically protected perpetrators sit in power and abuse resources that allow victims to see criminals rewarded everyday. Nepal’s post conflict justice system is becoming weaker, politically influenced and moving towards an entirely perpetrator centered approach.


After long discussions around attempting to forget conflict era cases, the government formed a Truth and Reconciliation Commission (TRC) and Commission of Investigation on Enforced Disappeared Persons (CIEDP) through a political consensus, with the apparent aim of protecting political leaders and providing clean chits to the security forces. In the past 12 months, the Commissions have spent public resources doing nothing: this looks more and more like abuse of resources in the name of conflict victims. Commissioners have played with victims’ blood and poverty in favour of corrupt perpetrators in order to sustain their positions. They are not only abusing public resources but also killing any hope of a victim-centered justice process. There is now little space left for the Commissions to deliver a justice that would serve victims. There remains the shadowy influence of security forces and the direct influence of political power, where army, police and political parties come together to safeguard their perceived common interests. There is no appropriate security environment for those advocating for victims, and no provisions for victim or witness protection. The regular threats that I receive are testimony to this, and other victims’ advocates do not feel secure. It shows that victims and witnesses cannot speak freely, even as the Commissions begin their collection of testimony. The Commissions may also face challenges from both security and political forces, and do not seem strong enough to demand that senior government and security officials and leading politicians testify.


The Government appealed for a review (currently pending) of the Supreme Court decision of 26th February 2015 to create political reconciliation at the top; however there is almost no possibility to amend the full bench verdict of the apex court. There remains no law to criminalize enforced disappearance or torture, nor a clear roadmap for the two Commissions to deliver truth and justice to victims and the nation, representing a missed opportunity for transitional justice.


The Commissions’ politics


The Commissions should not be guided by politics. The TRC’s visits to the districts in past months played a role in dividing victims and portraying as an enemy those active victims who are critical of the Commission and demand an active role for victims in the process. Commissioners in their district visits themselves have lobbied politically through politically affiliated victims and local peace committees (LPCs) to marginalize independent victims and have lost the opportunity to bring all victims together. Instead of learning from the victims’ common platform, they have rather lost credibility on the ground. Independent victims’ organisations throughout the country have been critically engaging and monitoring the commission process from the very beginning. The Commissions must learn from a failure of local peace committees which were controlled by local political party leaders: currently both commissions are relying on LPCs to contact victims rather than connecting with the wider community of victims and their associations beyond politics.


The maintenance of their independence remains a big question: Commissioners’ regular visit to political leaders, security officials and alleged perpetrators has sown doubts in the victim community. Most importantly, their approach to dealing with victims and relatives is reluctant and remote, creating a distance and frustrating potential cooperation. Compounding the lack of a victim focus in the Act that created the Commissions is a lack of understanding by the Commissions of victims as protagonists and a potential driving force for a legitimate transitional justice process. A wholesale review and overhaul of the Commissions’ operations is required to ensure victim participation, and to aid development of communication with victims’ representatives.


In the Act, there is no provision to address the root causes of conflict such as land issues, structural violence, poverty and corruption, and such issues remain far from the attention of the current government. If the Commissions cannot play a role in understanding what drove conflict, then the likelihood of another conflict increases. Indeed we now see in the Terai the authorities ignoring mainstream Madeshi opinion, despite the risk of fostering new armed rebellions, demonstrating just how few lessons have been learned from the recent past.


Critical engagement


Initially, despite their differences and dissatisfaction with the commission process and the flawed Act, victims groups gave the benefit of the doubt to the Commissions. The Conflict Victims’ Common Platform (CVCP) has adopted a position of critical engagement with the Commissions. However, the Commissions have been unable to ensure a victim centered approach in their operational work including in their plan of action, roadmap and strategies, and with regard to assurances to respect international principles and national standards as per the Supreme Court decisions. There is no meaningful participation of victims in the process in developing rules and regulations or operational procedures through any broader consultative process. There are no guarantees of creating an institutional and physical environment to ensure that all victims - including children, persons with disabilities, women and victims of sexual violence - are able to express themselves securely and appropriately before the commissions. In their first year, the Commissions spent their time at top-level meetings and ensuring their own conditions, without addressing any of the above issues.


The CVCP believes that a credible transitional justice process cannot start without a commitment of the Commissions to engage with victims and seek to ensure their meaningful participation. As the largest national network of conflict victims, the CVCP expects to see a suitable environment created for their participation to play a leading role in a transitional justice process that is victim centered. If the hope of victims to play any role is extinguished, the platform may re-visit the position of critical engagement to adopt a more critical role in the process and appealing with the victim community for alternative paths to justice, including potentially leading an informal alternative process at the grassroots.