Nepal adopted the anti-torture legislation, Torture Compensation Act (TCA), back in 1996. As the name suggests, this legislation outlines principles, processes and procedures for providing compensation to victims of torture and ill treatment. But the TCA has come under criticisms from human rights activists for not being in line with Convention against Torture (CAT), for failing to criminalise torture, for not providing sufficient witness protection, for insufficient compensation and for its 35 days limitation to register claims.
Nepal’s new constitution mentions criminal liability for torture though it does not have an active legislation to deal with torture as a criminal act. Yet TCA has proved to be instrumental in guiding torture prevention and documentation. Hundreds of Nepalis have applied for compensation under TCA provisions.
In this context, the proposed criminalisation of torture, while sounding politically attractive, could have a two-prong effect. First, the focus on criminalisation prioritizes legal accountability. It can significantly increase the risks to victims and claimants unless it also includes effective protection measures. Second, it could make it more difficult for human rights organisations to identify and document cases of torture. More so because the state party and officials responsible may not easily allow human rights workers access to detention centres. Nor will they have any incentive to share information when it is going to be used against them for criminal prosecution. Thus state officials may be inclined to hide evidence.
Reports from human rights organisations suggest that torture by police and armed forces has been an endemic phenomenon in Nepal. While there has been no systematic study on torture, human rights organisations report that torture was widespread during the Maoist insurgency (1996-2006), used both by state and armed forces. This reflects widespread impunity in the country.
UN-OHCHR reported that there were over 2,500 cases of alleged ill treatment in the decade-long insurgency.A Nepali human rights NGO, Advocacy Forum, reports that there were a total of 5,682 human rights violations in Nepal during 2001-2006, of which 2,271 were cases of torture. A recent report by Advocacy Forum shows that out of 3,662 detainees visited in 2013 as a part of its Torture Prevention Program in selected detention centers, 16.7 percent detainees said they had been tortured in police detention centers. Another NGO, Third Alliance, maintains that torture is widespread in the Tarai. Likewise, other human rights organizations such as Amnesty International, Asian Human Rights Commission, and National Human Rights Commission also conclude that torture is systematically practiced in Nepal.
Gathering information on prevalence of torture and ill treatment is challenging. The existing limited evidence on torture and ill treatment produced by human rights organizations is based on detention monitoring or identification of cases through a network of human rights workers and lawyers.
Nepal acceded to UN Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT) in 1991. In an attempt to come up with legislation in line with the constitutional commitment as well as the CAT, Nepal promulgated Torture Compensation Act (TCA) in 1996. TCA provides formal redress for victims of torture in the course of inquiry, investigation or hearing, or for any other reason and contains provision of departmental action against government employees who inflict torture.
It defines torture as “physical or mental torture of any person who is in detention in the course of inquiry, investigation or hearing, or for any other reason” and “cruel, inhuman, or insulting treatment of such person.” It limits the scope of prohibition against torture to detained victims.
The victim’s relative or a lawyer can file case in the court within 35 days from the date of torture or release from detention. The law requires that police facilitate a medical examination of detainees before detaining them and also upon their release. But this does not happen in all cases. It grants a victim of custodial torture the right to compensation of up to Rs 100,000. TCA allows officials accused of torture to be defended in the proceedings by the public prosecutor at public expense.
Besides TCA, National Human Rights Commission Act (2012), Evidence Act (1974) and National Code (1963) also contain important provisions against torture. However,
TCA has offered a useful framework for human rights workers and lawyers to reach out to potential survivors and document cases of torture and ill treatment.
Almost all documentation works on torture and ill treatment take place within TCA’s framework. Although there are limitations on TCA’s definition of torture within detention, rights organizations have successfully negotiated access to detention centers for providing legal counseling and advice. Outside detention, they have relied on interviews with relatives and other witness to gather information. Since compensation than prosecution is the key framework guiding TCA, human rights workers on the ground have been able to work with state officials with ease. Although there is a provision of departmental against perpetrator in TCA, this is not so in practice.
Since the promulgation of TCA in 1996, Nepal has made significant progress in torture documentation, and organisations have demonstrated a considerable flexibility and creativity in working with the stakeholders of the criminal justice system. However, political space provided might prove to be too narrow for a meaningful documentation on torture prevention and its criminalisation. An alternative approach for human rights activists could be to work with the network of community based organisations with better access to cases of torture and ill treatment.
The author has been working on an ESRC-DFID funded research on torture documentation in low-income countries including Nepal. Views expressed are his own
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