In 2009, the Ministry of Peace and Reconstruction published its first drafts on the Truth and Reconciliation Commission (TRC) and the Commission of Investigation on Enforced Disappeared Persons (CIEDP) in Kathmandu. Conflict victims were neither consulted during the drafting process nor were they invited when it was made public. A number of discussions were held behind closed doors on the drafts by political party leaders and representatives from the parliamentary committee. Conflict victims submitted memorandums to the government and parliamentarians dozens of times. In 2013, the then prime minister Baburam Bhattarai officially extended his commitment to form the TRC to provide justice to conflict victims.

Conflict victims challenged the ordinance in the Supreme Court which ordered the government not to implement the ordinance in January 2014. In March the same year, the government formed an expert task force consisting of representatives of conflict victims to draft bills related to the TRC and the CIEDP. The task force submitted a draft bill which criminalised disappearance and also issued a number of recommendations on transitional justice.

Same old provisions

Rejecting the report, the government tabled a draft bill in Parliament prepared by an inter-party task force. It contained provisions similar to those in the ordinance such as interfering with the right of the attorney general to decide to prosecute and the commissions’ discretionary power to recommend reconciliation.

Parliament approved the bill in April 2014, rejecting the concerns of conflict victims; and 234 conflict victims from 44 districts challenged certain provisions in the act in the Supreme Court. The government formed a recommendation committee to issue recommendations on both commissions.

On February 10, 2014, the government formed two commissions as per the recommendations of the committee. The Supreme Court quashed the provisions on prosecution and reconciliation, and ordered the government to adopt all verdicts on transitional justice as a guideline. Both commissions have not delivered any tangible results. They have not revealed the truth behind a single violation, nor have they made any recommendation to the government about reparations. The commitment to make public the whereabouts of disappeared persons as per the peace agreement has not happened even though 12 years have passed since it was signed.

Victims of conflict related sexual violence, rape and torture are still not recognised as victims. The parties to the conflict share state power and have similar positions with regard to transitional justice.

Instead of adopting good practices, complying with the Supreme Court verdict and collaborating with stakeholders, political parties and the government formed the law and commissions due to their interest in granting amnesty.

The transitional justice process in Nepal is neither victim centric nor human rights friendly. There is no proper plan of action with a specific timeline to complete the process. The content and process are both important, and conflict victims and civil society have argued that the law and the commissions cannot reveal the truth of gross human rights violations and ensure justice, reparation to the victims and non-recurrence. They have demanded an the amendment to the law and credible commissions. Conflict victims established the republic by paying in blood, pain and tears. The state has not acknowledged their trauma and tirelessness or made a public apology for the pain and loss caused to the people by the conflict. Some local governments have started acknowledgement and capacity building programmes for conflict victims.

If we study trends from the democratic movement of the 1960s, none of the human rights violators have been made accountable. Transitional justice in Nepal is focused on what happened. No effort is being made to examine why the conflict and human rights violations happened and adopt legal and structural measures to ensure non-recurrence.

Lack of will

The transitional justice process here, at home,  has completed the first stage. It has been proven that the ongoing unilateral process, law and commissions cannot conclude transitional justice in Nepal. Extending the terms of the commissions is intended to create delays. Lack of will in the government and political parties, and lack of trust and ownership of the stakeholders including conflict victims are the reasons behind the failure.

Nepal’s transitional justice process has to be reviewed based on the lessons learnt and the weaknesses and intentions of the past. Political parties and the government have to create a trustworthy environment first. The participation and ownership of all stakeholders, including conflict victims, needs to be ensured in the transitional justice process.

Guiding principles for transitional justice and a roadmap for truth seeking, comprehensive reparation policy, prosecution, reconciliation, memorialisation and non-recurrence have to be developed. They have to be based on good practices, provisions of international treaties on human rights, Supreme Court verdicts, peace agreements and the understanding of stakeholders, but not in their interest. Laws coupled with credible and independent commissions should be developed based on the guidelines with the participation of all stakeholders.

Adhikari is the chairperson of the Conflict Victims Common Platform