Nepal’s major political parties have reached an unprecedented consensus on concluding the long pending transitional justice process.
On August 14, Nepal’s lower house of parliament— the House of Representatives— endorsed the bill to amend the Enforced Disappearances Enquiry, Truth and Reconciliation Commission Act by a majority vote after three major political parties, namely the Nepali Congress (NC), Communist Party of Nepal (CPN-UML) and Communist Party of Nepal (Maoist Centre – CPN MC) reached a tripartite written agreement on the bill on August 7.
The country’s upper house–the National Assembly also endorsed the amended bill on August 22, requiring presidential ratification for it to become a law.
The transitional justice process is aimed at advancing justice for the conflict victims who were subjected to widespread human rights violations and abuses during the 1996-2006 civil war. It is also a part of the peace process that began 18 years ago with the signing of a Comprehensive Peace Agreement (CPA) between the then government and the then rebels—CPN-Maoist in November 2006.
While Amnesty and HRW admit the transitional justice law ‘incorporates positive provisions’ on accountability and justice to redress war crimes during the Maoist conflict (1996-2006), they believe ‘serious accountability gaps’ still need to be addressed.https://t.co/IoeKqgquwp
— Nepali Times (@NepaliTimes) August 22, 2024
A 12-point agreement signed between seven political parties and then Rebel Maoists in New Delhi in November 2005, paved the way for the Maoists to enter peaceful politics. The CPA had three major goals, two of them—integration of the Maoist combatants into the Nepal Army and promulgation of the constitution—have been completed. But justice for the victims of the civil war remained unfinished.
In 2014, the Nepal government introduced the Enforced Disappearance Enquiry, Truth and Reconciliation Commission Act 2014 that paved the way for formation of the Truth and Reconciliation Commission (TRC) and Commission of Investigation on Enforced Disappeared Persons Nepal (CIEDP).
These commissions collected more than 67,000 complaints relating to murder and rape and other offenses. But an amendment to the law was required after the Supreme Court in February 2015, struck down provisions that allowed amnesty for serious violations of human rights, directing the government to make necessary revisions. But successive governments until recently made no serious attempts to amend the law as ordered by the top court.
The government of Pushpa Kamal Dahal ‘Prachanda’, tabled the amended bill in parliament in March last year. Then, efforts were made to arrive at a political consensus on the bill among the three major parties, seen as the key stakeholders of the peace process. Consensus was reached on August 7, paving the way for the endorsement of the bill by the lower house of parliament.
Amended Bill
The amended bill has sought to address the order of the Supreme Court by ensuring that serious violations of human rights cannot be amnestied. These were defined as rape or serious cases of sexual violence, intentional or arbitrary killing, enforced disappearances, inhumane or cruel torture and so on.
Rather controversially, the bill also authorises the attorney general to seek reduced penalty from the courts for those accused of such serious violations based on whether the perpetrator provided information on the allegations against him, whether they cooperated in the collection of evidence against them and whether they expressed remorse for their acts.
The bill also provides for reconciliation in cases other than serious violations of human rights, based on ‘independent wishes’ of the victims.
Victims Divided On Bill
But the victims are divided and ideology has also played a role. A group united under the National Network of Victims and Survivors of Serious Human Rights and National Association of Conflict Rape Victims say the bill is in line with the demands of the grassroots victims for truth, justice and reparations.
These organisations are led by Ram Bandari and Devi Khadka respectively. Khadka was arrested, tortured and raped in 1997 while Bhandari’s father was forcibly disappeared by the state in 2001. Khadka was state minister from the CPN (Maoist Centre).
Suman Adhikari, founding chairperson of Conflict Victims’ Common Platform, another group of conflict survivors, says the bill does not ensure justice to the conflict victims. His father Muktiram Adhikari, who was a principal at a local school, was murdered in 2002.
“Categorization of murder and bodily damage as crimes eligible for amnesty, provision for reducing the penalty and no reforms in the appointment process in two commissions have laid the ground for suspicion whether the victims would get justice,” he said, adding that “The task of whether to reduce the penalty should have been left to the court instead of the attorney general.”
Adhikari claimed that Bhandari and Khadka, being members of the CPN (Maoist), “Do whatever their party tells them to do.” People associated with his organisation were civilians who were targeted during the conflict.
Khadka, on the other hand, said that her group supported the bill because it addressed their key demands including no amnesty to the perpetrators of serious human rights violence including sexual violence during the conflict.
“Prosecuting every person accused of offences during the conflict era is not possible. Making such demands is futile as it leads to delay in justice,” she said claiming that certain groups of victims were running projects worth millions of rupees with foreign donations. “They are teaching victims to be ready for long struggles so that they can run profitable projects for a prolonged period.”
She insisted that victims who wanted to reconcile with the perpetrators, should have a choice to do so. “Several victims including the families of enforced disappearances will be content with the information if their dear ones are dead so that they could perform the last rite as per their tradition,” she said.
What Human Rights Activists’ Say
On August 20, Amnesty International, Human Rights Watch and the International Commission of Jurists said in a joint statement that though the amended bill incorporated many positive provisions, it still had elements that could undermine a successful outcome.
“The definition of serious violations are not consistent with international law and exclude other serious crimes,” they said. “For instance, the prohibition of torture and the requirement that it be criminalized is absolute and there can be no qualification for ‘inhuman or cruel’ torture, since torture by its nature is inhuman or cruel.”
“To ensure the integrity of the process and bring the law into compliance with Nepali and international legal standards, serious accountability gaps need to be addressed by lawmakers,” they said.
Nepal’s Human rights lawyers and campaigners also have similar views regarding the bill.
“The bill has failed to include many war crimes, and crimes against humanity as serious violence of human rights,” said Mandira Sharma, senior international legal adviser at the International Commission of Jurists.
“International laws say amnesty is not given in such crimes. The bill does not recognize illegal detention for a prolonged period, widespread and systematic damage of personal property as serious human rights violation though such acts can be categorised as crimes against humanity. Those who faced serious violation of human rights after being forcibly disappeared and was released later will not get justice as per the bill because they are no longer disappeared,” she said.
Human rights campaigner Charan Prasai said “There are flaws in provisions regarding the categorization of the crime and authority granted to the attorney general to reduce penalty. Even the acts that could be categorised as serious human rights violations, have been listed under general human rights violation which is condemnable.”
Other Concerns
The vagueness of the law on some points, and lack of detail in many areas, mean that interpretation and implementation of the mandates of the TRC and CIDEP will be critical, the three international human rights bodies said in the statement.
#Nepal new transitional justice law could help advance accountability & redress for abuses in the 1996-2006 conflict, but should not be a process where victims are encouraged to accept compensation without truth or justice @hrw @amnesty @ICJ_org https://t.co/UXKtrMgcll pic.twitter.com/W87DX13B3V
— meenakshi ganguly (@meeganguly) August 20, 2024
“The appointments of highly qualified and independent commissioners, and of the TRC secretary, will be especially important early decisions,” they said. This is the concern of Nepal’s human rights activists and victims.
“Granting permission to the attorney general to prosecute the perpetrator by reducing the penalty even in the case of serious human rights violation was against the principle of international law,” Sharma said. “It should have been left to the judgement of the court to order proportionate punishment based on the seriousness of the crime committed.”
In Nepal, the prime minister usually picks the attorney general based on political loyalty, so it’s doubtful if he will prosecute those who are seen as having political influence.
“There is a doubt whether capable and people with integrity will be appointed in the commissions,” said Adhikari. “It is necessary that the delivery mechanism should also be effective.”
(The author is Executive Editor Arthik Abhiyan Daily)
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