Question of legitimacy

  • Victims must be recognised as critical actors in the transitional justice process
- Ram Kumar Bhandari
Question of legitimacy

Jul 3, 2014-

Since the signing of the Comprehsive Peace Agreement (CPA) in 2006, Nepal’s transitional justice debate has been largely top down and elite led. In the past eight years, a number of ordinances and parliamentary bills along with the most recent act on Truth and Reconciliation Commission (TRC) and Commission on Enforced Disappearance (CED) have failed to address the human rights violations that occurred during the insurgency in a fair, just and dignified manner.  The most recent version of the TRC Act has a number of clauses that raise questions about the mechanism’s legitimacy not only from victims at the community level, but also from the international community. Most notably, statements by the UN Secretary General on June 20 urged the Nepali Prime Minister to address past violations and respect victims’ dignity in the transitional process through a credible mechanism in a principled approach to justice. The UN OHCHR also asked government of Nepal to make amendments to recently approved acts on the TRC and the CED that grants power to the commission to recommend for amnesty as it is against the international humanitarian law and policy of the United Nations.

Commission problems

Despite recent progress on the promised TRC and CED, questions concerning their legitimacy remain. There are a number of challenges and obstacles, all of which must be addressed in an open and democratic manner. First and foremost is the continued role that potential amnesties play in the post conflict landscape. The government’s insistence time and again that amnesties be provided to perpetrators of conflict-era violations has undermined the integrity of the transitional process, and succeeded in alienating those who must support this process for it to succeed. Second, forced reconciliation may create further tensions locally and nationally if it continues without the engagement of families and communities. The ‘R’ in TRC is not reconciliation as victims of violations understand it. Finally, the funding mechanisms of such transitional mechanisms must be taken into account as this will surely open the door to outside interests. Donors and support institutions must find a way to support the process financially and technically while leaving its form and implementation up to the people.

Actual participation

Addressing the challenges detailed above is of paramount importance to ensuring that conflict victims and Nepali citizens more generally trust the transitional process. Of equal if not greater importance is participation. Both the process and the approach play a significant role in letting victims learn, act and represent themselves in developing and implementing justice concerns as engaged participants in the transitional justice process.  Unfortunately, in Nepal,victims have no role in the process; instead they are forced follow and accept the decisions made on their behalf. As a result, victims’ transitional needs and agendas are not represented sufficiently, whilst their role and capacity to add constructively to the process through participation remains underestimated. True progress on transitional justice issues demands recognition that victims have an important role to play in the larger process. This role must be defined and ensured in the overall process of policy drafting and implementation, providing agency while placing victims’ agendas at the center of a process that claims to aid victims.

The mass petition submitted by victims to the Supreme Court on June 3 brought attention to these obstacles.However, the government has has again sought to establish the T(R)C based on a faulty act that does not address these problems. As a result the process may succeed in obstructing any hope of a victim-centric transitional process. Victims are aware that the T(R) C is unlikely to address the needs and suffering of victims in large part because there is no coordinated approach to dealing with past in Nepal. Thus, it is a critical time for victims’ groups to bring their key issues together to create a national momentum through a new strategy and plan of action.This can  exert pressure to bear fruit for a more victim-centric process using existing resources as per the needs of victim groups and families, not only through a legal and political approach but with a focus on the social, economic, psychological and cultural dimensions of transitional justice based on local priorities. Separating socio-economic challenges from the transitional justice process creates a mechanism that is merely a showpiece for outsiders.

Crucial actors

This is the time for change; a shift in victims’ advocacy to provide a national space for dialogue, solidarity, empowerment and action to lead the informal process of truth telling, memorialisation, locally driven reconstruction and reparative support to the families and communities in response to a national effort that has failed.

In such an approach, victims’ groups lead the process of empowerment, mobilisation, documentation and dialogue at the local level to ensure victims’ agency and actively contribute as peacemakers and engage in policy debates as a strong watchdog to guarantee fairness in the national transitional justice process in the long term.

If the potential for a truly ‘New Nepal’ is to be realised victims must be recognised as critical actors in the national transitional justice process while also taking decisive action at the local level. They must be afforded the dignity and recognition to participate and shape both the transitional processes as well as the future of Nepal from the ground up. Only then will the foundation for a truly sustainable future be realised.

Bhandari is Coordinator of National Victims Alliance

Published: 04-07-2014 09:07

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