Parts of a whole

  • The transitional justice process must move beyond consultations to give victims a true opportunity to be partners and decision-makers
Parts of a whole

May 15, 2014-

Who decides what transitional justice looks like in Nepal? By what means? And indeed, when? Throughout the transitional justice trajectory in Nepal, victims and other community members have had limited scope to articulate what transitional justice means to them.

Over seven years since the signing of the Comprehensive Peace Agreement (CPA), the Truth and Reconciliation Commission (TRC) bill was adopted on April 25. Victims, human rights organisations and donors, among others, remain opposed to this bill. While the bill made modest amendments to earlier drafts, many still fear perpetrators will be granted amnesties and that the bill fails to meet international standards.

Central to these criticisms is the issue of participation. From my research in Nepal, it is clear that participatory attempts need to go beyond consultation and information sharing to give victims and members of affected communities a true opportunity to be partners and decision-makers in the transitional

justice process.

All in

Participatory approaches help to address a key criticism of transitional justice—that it focuses on state-centric processes and institutions rather than people, particularly victims. Participation provides people who are socially and economically disadvantaged, marginalised and powerless with the opportunity to identify and express their needs and the best ways to address those needs.

To date, participatory attempts have covered the

following issues: general consultations on transitional justice (including the draft bills on the TRC and Commission to Investigate Enforced Disappea-rances); women’s experiences; relief and reparations and families of the disappeared.

These attempts predominately involved consultations and surveys. They were initiated by a range of actors, including the government, UN agencies, human rights organisations and victims’ groups. It is important to recognise that each of these actors have different interests and power and this impacts their ability to respond to victims’ needs.

Despite the range of issues covered and the people involved, barring the work carried out with some families of the disappeared, it is unclear as to what extent the rhetoric of participation has impacted the practice of transitional justice. This raises a crucial question: who benefited from these participatory attempts?

The Ministry of Peace and Reconstruction held transitional justice consultations with the support of the UN Office of the High Commission for Human Rights. However, the way these consultations were designed and implemented, focusing on the proposed TRC, could have unduly influenced and limited how participants constructed their needs and what they anticipated the government was in favour of delivering.

A benefit that flowed from these consultations was that a number of suggestions were included in the draft bills. However, the bills also retained controversial provisions. So it is evident that the consultations have the potential to form

one part of a participatory approach but do not, in and of themselves, ensure meaningful participation.

Expert opinions

There have also been a number of challenges in the way participation in transitional justice has taken place in Nepal to date.

From the outset, the transitional justice process was not driven by victims or ‘the community’ but by a limited number of transitional justice experts and political elites. A South African consultant contracted by USAID was instrumental in the adoption of the South African Truth and Reconciliation Commission model here. And yet, prior to his involvement, there was limited discussion on the adoption of such a TRC in Nepal. Despite the initial reluctance by the Maoists and the state, soon, both negotiating parties came to see the benefits of the reconciliation and amnesty model adopted in South Africa, which was subsequently included in the CPA. So the TRC and the Commission to Investigate Enforced Disappearances structure does not necessarily reflect what

victims want.

To date, victims have had limited opportunities to voice their opinions and needs in the transitional justice process, with other actors frequently speaking on their behalf. Victims’ groups have been one of the few avenues through which victims have been able to articulate their concerns. There is an increasing trend among a number of victims’ groups to be in direct communication with donors and the media and it will be interesting to see the impact this will have on the transitional justice process.

Beyond consultations

The passage of amendments to the draft transitional justice bill indicates that even with modest participation, it is political will that ultimately determines which voices are heard, included and heeded in state-centric transitional justice processes. This emphasises the need for bottom-up transitional justice processes. This issue is particularly evident with regards to amnesty, as calls from consultations (and beyond) against amnesties are set in opposition to repeated attempts by the government to include blanket amnesty clauses in

the transitional justice bills. This highlights a serious, perhaps even irreconcilable, tensions among the voices of victims, the government, transitional justice experts and other actors.

So it is evident that participatory approaches need to move beyond a focus on consultations and surveys to give victims and affected community members a true opportunity to be partners and decision-makers in the transitional justice process in Nepal. These approaches, and an increased focus to support and enable the mobilisation of victims to become agents of change, might just be a

starting point to ensure that transitional justice is indeed victim-centric.

Selim is a freelance consultant and a PhD candidate at the University of New South Wales

Published: 16-05-2014 08:01

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