Thirteen years after signing of CPA, justice eludes the conflict victims
Transitional justice (TJ) bodies were dissolved in early 2019. Since, the government continues not to listen to victims and wider civil society. Security institutions protect alleged perpetrators, conflict related war crimes are not investigated and are often defended by the state. Transitional justice itself seems to be under political control. A recommendation committee formed in March to select the new commissioners, based on a highly contested and faulty act, has lost credibility and holds no independent role or moral authority to gain trust. The Law Ministry which is supposed to lead the amendment of the flawed act as per the Supreme Court verdict often lies, betraying no real political will to deal with the past abuses in collaboration with wider victims’ alliance and the National Human Rights Commission. Numbers of alleged perpetrators who were directly or indirectly involved in grievous crimes enjoy positions without guilt. Lawmakers, top leaders of ruling as well as opposition parties, security officials—both serving and retired—show utter indifference to ongoing transitional justice process. Instead, they tend to manipulate transitional justice issues to serve their interests or to derail the norms of justice.
They are breaking the system, killing the spirit of justice, and have no respect for the rule of law and obstruct accountability processes.
This summarizes the progress or decadence of TJ process in Nepal.
Thirteen years later
Nepal marks 13th anniversary of Comprehensive Peace Agreement (CPA) today. But thousands of conflict victims still wait for answer and their demand for justice remains unaddressed. Transitional justice mechanisms are on the verge of collapse without gaining trust and delivering a result. The deep-rooted impunity within political culture and the government structure allows perpetrators and rulers at the top to forget about the past crimes. Victim movements in Nepal often challenge institutional impunity and fight against injustices and a flawed system that has not changed ever since the peace process. Bureaucracy, army, police, courts and political parties live with the old mindset. The evils of impunity, structural inequality, exclusion, injustice and insecurity are growing. The so-called democratization and inclusion processes have tended to further marginalize the marginalized. Advocates of justice are under intimidation. State institutions have failed to combat impunity, recognize the rights of victims, provide reparation or guarantee non-repetition of crimes in the future. These are the dangerous signs for stability and justice.
Examples of impunity abound. Consider the alleged perpetrators of the killings of Krishna Sen Icchuk, Guru Luitel, Muktinath Adhikari, Maina Sunar, Rupa Chaudhari. Think of mass killings in Kalikot, Jajarkot, Rukum, Dang, Dhanusha, Doramba, Anaikot, Maadi, Bhairbanath disappearances, hundreds of rapes, torture and disappearances, post-conflict Gaur massacre, rape of Nirmala Panta, fake encounter killing of Kumar Paudel and so on. In all of these cases, the state has failed to do justice to the victims. It has never implemented the recommendations made by National Human Rights Commission on conflict related crimes and post-conflict human rights violations.
The government and security forces have been obstructing the transitional justice process, threatening rights activists and controlling civic spaces. Recently proposed NGO Act is an example of attempt to restrict human rights activism and prevent social organisations from working independently. The government has ignored activists who raise the voices of the oppressed and challenge institutional impunity. Government is failing to settle the transitional justice concerns without considering primary voices of the victims and Supreme Court’s ruling on justice, contravening the norms of the new constitution and domestic and international law.
The Truth and Reconciliation Commission (TRC) and Commission on Enforced Disappeared Persons (CIEDP) are dysfunctional. If new appointments are made without transparent process, these bodies will once again become the politically controlled puppets. In addition, there is an urgent need to address impunity in the security forces where their members are accused of serious crimes, including forced disappearances.
One example is Pitamber Adhikari, whom I have publicly accused of being behind the disappearance of my father. Not only has he not been investigated or held to account, he has been promoted to a senior position in Nepal Police. Many other suspected perpetrators continue to hold senior positions and not only hide the truth, but also block the justice process. Adhikari was behind hiding the infamous Alam’s crimes in Rautahat when he headed the district police force after the incident. Similarly, many alleged perpetrators defend each other. Without truth, fair investigation and justice, the so-called stability agenda will not only fail to deliver, it risks creating fresh social tensions, conflict and a culture of revenge, resulting in an uncertain future.
Amend the faulty law
The solution of this lies in reviving TJ bodies by amending the faulty TJ Act through a wider consultation with victims and civil society. Then process to appoint commissioners should be transparent. The TJ bodies should be equipped with the necessary legal mandate, adequate resources, expertise and power to investigate and recommend prosecution and reparation to support marginalized victims’ communities. Nepal must find a better path to reconcile various actors, all of whom must contribute to successfully implementing the spirit of the Comprehensive Peace Agreement of 2006 to sustain the nation’s transformative agenda. We must ensure that National Human Rights Commission’s recommendations and court directives are implemented to advance the human rights and rule of law in the country. New challenges for the transitional justice process are to protect and investigate those who have registered complaints to ensure future justice. We must all closely watch the ongoing process and be optimistic that truth and justice for all is achievable. We must continue to fight against a sick system and shout together against injustice to safeguard our right to justice. The current transitional justice mechanisms are not designed to provide remedy and justice to the victims. We need a meaningful shift to confront such obstructions both at the policy and practical level, in a close coordination with victims for a solution-led process. Let us break some of the layers of silence and the power held by perpetrators to open up a road to justice.