South Africa is a poor transitional justice model for Nepal as 65 percent of its applicants for amnesty were already in jail
Earlier this month Nepal marked 10th anniversary of the Comprehensive Peace Agreement (CPA), which ended the decade-long armed conflict in 2006. Since then a new constitution has been promulgated and former combatants have been reintegrated into the society while some also joined security forces. However, some core elements of transitional justice process such as the state’s responsibility of finding truth, investigating tens of thousands complaints of human rights violations, providing reparation to the victims, reforming public institutions and operationalizing national reconciliation process are as yet incomplete.
Reconciliation is often misunderstood in many post-conflict situations. Cambodian Prime Minister, Hun Sen, used to say “dig a hole and bury the past.” His formulation comes from the old notion that has no place in modern reconciliation process. The politics of ‘forget and forgive’ denies conflict victims redress to historical injustices, to structural violence and to the right to remedy and reparation—the core elements of any reconciliation process. Limiting reconciliation to narrow political interests—mediating between victims and perpetrators, or asking victims to ‘forgive and forget’—is inimical to sustainable peace, the ultimate goal of reconciliation process.
Theoretically, reconciliation is both backward and forward looking process. In a post conflict context, reconciliation can be helpful if a range of measures, including transitional justice measures, is employed to redress past crimes such as political, social, judicial, economic and structural injustices. In practice, case studies show that reconciliation measures are limited to a few truth-telling initiatives with prerequisite amnesty measures. Unfortunately, these processes have heavily influenced transitional justice in Nepal.
The CPA promises social, economic, and political transformation, conflict management, management of army and arms, protection of human rights, adherence to humanitarian law and peaceful settlement of disputes and reconstruction and reconciliation measures.
It promises to end the conflict and bring about political, economic and social transformation, transitional justice and sustainable peace.
To realize these promises, political parties including Maoist party had signed a 23-point accord on December 23, 2007 to set up the Commission on Disappeared Persons and the Truth and Reconciliation Commission.
On 10 February 2014, the Truth and Reconciliation Commission (TRC) and the Commission on Investigation on Enforced Disappeared Persons (CIEDP) were finally formed. The TRC has been mandated to investigate human rights violations of insurgency era. Likewise, CIEDP has been tasked to investigate the cases of disappearance of the same period.
These mechanisms are similar to South Africa’s Truth and Reconciliation Commission.
South African TRC was also created to investigate gross human rights violations perpetrated during Apartheid regime (1960-1994), including abductions, killings and torture. The mandate covered violation by both the state and the liberation movement and allowed the commission to hold hearings focused on specific sectors, institutions and individuals. South African TRC encouraged inter-personal reconciliation between former offenders and survivors as well as amity between former political opponents.
South African model focused on “tell the truth and be forgiven” scheme. Nepali TRC law had a similar provision in Section 26 of TRC Act, but the Supreme Court struck it down, removing the power to grant amnesties for serious crimes. But Supreme Court allowed the two commissions to mediate cases of “lesser” violations, on application of either the victims or the perpetrators. Even in this, it issued a judicial order stating that victim’s consent is mandatory for reconciliation.
TRC Act retains a provision from South Africa’s TRC Act where applicants for amnesty are not even required to make a formal apology or show sincere remorse in order to be granted amnesty. This remains one of the most controversial aspects of South Africa’s amnesty process.
The South African TRC pursued the mandate of advancing individual and collective reconciliation with focus on “revealing is healing”. It encouraged forgiveness and empathy.
South Africa sought to facilitate a process whereby citizens could rethink and remake their relations with each other. This is different from Nepali concept of melmilap.
The concept of melmilap has been historically used to mediate a dispute between two parties, mainly in civil cases. It has a limited scope and has been used in Nepali judiciary formally as an alternative method of dispute resolution.
It should be noted that most office bearers in TRC have mediation background. It is argued that they are qualified for their jobs as they are trained as mediators, underscoring how reconciliation is understood in Nepal.
Regarding individual cases of reconciliation with amnesty measures, South African TRC took the testimony of approximately 21,000 victims, of whom 2,000 appeared at public hearings. A total of 7,116 individuals applied for amnesty, of which 1,167 were granted full amnesty. Of the 7,116 applications, 5,143 cases were dismissed without a hearing.
About 65 percent of the applicants were those who had been convicted or were in prison at the time of applications.
Our TRC Act includes provisions on reconciliation, both at the societal and individual levels. Section 3 of the Act states that TRC has been established “for investigating the truth of incidents of gross violation of human rights and about the persons involved in these incidents during the course of armed conflict, creating an environment conducive for reconciliation in the society and for recommending reparations for victims.” This provision, in principle, recognizes some core elements of reconciliation such as truth seeking, reparation and reconciliation at individual and social levels.
Section 22 empowers TRC to reconcile victims and perpetrators. TRC Act is silent on how the commission should operationalize reconciliation at societal level. Reconciliation at the societal level is more than just one-to-one encounters and calls for establishment of institutions that are trustworthy and that embody the idea that victims are rights-holders.
However, Nepal’s reconciliation process places emphasis on ‘one-to-one encounters’ rather than consider other stakeholders.
The notion of the individual reconciliation has also been supported by the Supreme Court.
It states that reconciliation between perpetrators and victims, pursuant to the TRC Act and carried out by the commissions, cannot take place without voluntary and informed consent of the victims.
We are yet to see how our TRC will carry out reconciliation work. However, looking at South African experience, even if TRC is given the mandate to grant amnesties, it won’t be able to do so partly because the perpetrators are not in jail, and victims want justice rather than reconciliation. Sixty-five percent applicants for amnesty were actually in jail in South Africa. They wanted early release. No one is in jail in Nepal. Others are either in military service or in politics. Therefore South African model does not suit Nepal.
So far, there has been no progress in societal or individual reconciliation. The mandate of TRC and CIEDP expires in February, 2017. But nothing has been done to ensure reconciliation.
Nepal’s journey to reconciliation remains an unfulfilled obligation. The major political parties have taken peace process as a power-sharing agreement and the peace and reconciliation process has been accorded secondary importance. In the course of power sharing, peace and reconciliation process has been hijacked by a few powerful party leaders. In this backdrop such concerns as truth, justice, reparation, and guarantee of non-recurrence of violence have been sidelined.
The author is an advocate at the Supreme Court of Nepal