Reimagining leadership

April 1, 2019 01:00 AM Charan Prasai


Transitional justice process has not come to a meaningful end because conflict victims were not placed at the center

Recently, a cabinet meeting decided to form a five-member transitional justice (TJ) committee headed by ex-chief justice Om Prakash Mishra to recommend the new members of TJ bodies. The term of TJ bodies, Truth and Reconciliation (TRC) and the Commission of Inquiry on Enforced Disappeared Persons (CIEDP) constituted four years ago, is going to end on April 13.  

Transitional justice is an integral part of peace process. However, it is not yet complete even after 12 years of signing of Comprehensive Peace Accord. With the new provision of the TRC law, the to be reconstituted bodies will have a working tenure of around ten months with possibility of one-year extension. Meanwhile, the existing law also waits for its amendment in line with the apex court verdict and international standards. Also there are no chances of the officials being appointed in the given time frame.  

This has raised some questions over TJ process. In the absence of the commissioners, who will be liable to protect the complaint files registered by the conflict victims? Should the TRC law be amended prior to reconstituting commissions or vice-versa? And what may be the prerequisites for the effectiveness of duly reconstituted commissions?

Perennial delay 

Nepal’s armed conflict (1996-2006) had formally ended following the signing of CPA on November 21, 2006. It included the TJ provisions and made them an integral part of the peace process. The CPA envisaged having TJ mechanisms constituted within six months of signing of the agreement, but it took more than eight years to bring them in place. Despite the clear provision of CPA and Supreme Court (SC) orders, there was considerable delay in the establishment of TRC and CIEDP with a proper Act. The Act is yet to be amended in line with international standards. In this pretext, Conflict Victims Common Platform (CVCP) remained ‘critically engaged’ while Accountability Watch Committee (AWC), a human rights group working especially on TJ issue, decided to remain ‘updated but not engaged’, failing to earn the trust of the key stakeholders. The UN expressed reservations in its public statement.

Around 63000 complaints were registered in the two commissions by the victims and their families. But there have not been any results so far. Other components of peace process—such as management of combatants, integration of PLA, reconstruction and promulgation of new constitution—have been completed. But the TJ, which is regarded as a core and an integral part of peace process, received low priority. Undermining this process will be counterproductive.

From the beginning, key stakeholders reminded that formation of TRC and CIEDP was not on right track due to heavy political meddling. The TRC Act was adopted by the parliament in political consensus but it failed short of meeting the international standards. Subsequently, 243 conflict victims representing 44 districts challenged at the Supreme Court the immunity provisions on heinous crimes committed during the conflict era. Still the recommendation committee constituted under the chairmanship of former Supreme Court chief justice Om Bhakta Shrestha finalized the list, ignoring the call of stakeholders to wait for the final verdict of the court. Stepping on the contested TRC Act, commissioners were recommended based on political bhagbada among major parties. This raised the question mark over ownership and accountability of TJ mechanisms. 

It’s already four years since the Supreme Court’s order to criminalize heinous crimes. The verdict has not been implemented yet. None of four pillars of TJ—truth, justice (persecution), reparation and institutional reforms leading to non-repetition—have been addressed. The commissions failed to become victim-friendly. Not one out of 63,000 registered cases has been resolved. This is the root cause of TJ bodies failing to earn the trust of conflict victims and national and international communities. 

New worries 

Victims are worried about the fate and safety of those 63000 complaints. The alleged perpetrators of conflict era are in power and staffs of the commissions belong to the government entities. Thus the state should ensure protection and prevention of potential threats to the victims. The concerned authorities should, without delay, decide on granting authority to National Human Rights Commissions (NHRC) for protecting the files until TJ commissions are reconstituted. NHRC should also be given a legal role to monitor and support the process. 

The few achievements Nepal made in peace process are not the result of Nepal’s efforts alone. International supports were equally vital. The UN played a crucial role in bringing Maoists into peace process. UNSG’s special envoy Tamrat Samuel made frequent visits and attempted to bring warring sides to negotiation table. Later, Office of the High Commission for Human Rights (OHCHR) was invited to Nepal during King Gyanendra’s direct rule which ultimately paved the way for 12-point understanding and, finally, peace agreement. Article 9 of CPA envisages OHCHR’s role in monitoring human rights which also includes TJ. This provision should be pursued now as well. This will help us get international support for durable peace.  

TJ process has not come to a meaningful end because conflict victims were not placed at the center of the process in the past. This mistake should be avoided now. For this, establishing trust with the key stakeholders is crucial. New officials at TRC and CIEDP should be trustworthy, impartial, independent and broadly accepted and they should be appointed in line with TRC Act amended as per the SC verdict and international principles. At the same time, we should not hesitate to solicit technical and logistic support from the international community for resolving the pending issues.

 

The author is Coordinator of Accountability Watch Committee (AWC) 

cprasai@gmail.com 


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