Transitional justice in Nepal has been politically and practically derailed but remains technically sustained so that the authorities can save face. While thousands of victims struggle on a daily basis to keep their demand for justice alive, the Nepal Army and Nepal Police are obstructing the process for a fair investigation.

Their direct intervention and threats have severely affected the efforts of the transitional justice process to address conflict related crimes such as disappearances, Maina Sunwar’s torture, rape and killing, and the recent rape and murder of Nirmala Pant in Kanchanpur. Transitional justice must respond to how people are suffering. The government must consider the different forms of justice required by the victims from a variety of contexts, and how the broader socioeconomic consequences of the conflict can be addressed.

The government has not been able to deliver justice to the victims or fulfil its national commitments and international obligations. Instead, the government has withdrawn hundreds of war crime cases to protect senior political figures and avoided implementing the recommendations made by the National Human Rights Commission and the Supreme Court.

The government has played a role in weakening national advocacy and disempowering activists by disregarding the courts and lying to the international community without fulfilling its international obligations. The victims in rural areas are beginning to see transitional justice as fake, the truth commissions as untruthful, and government policies as betrayal because the major political parties never implemented the agreements to address conflict-related violence.

 

Re-orientation needed

In a bid to correct legal flaws in the Transitional Justice Act, the government drafted a new bill and made it public as ‘zero draft’, but it has not shown a firm commitment to implement it. The government is still trying to dismantle it and satisfy the perpetrators. It must stop trying to do this and immediately re-orient the process to localise transitional justice by listening to the conflict victims.

The proposed Transitional Justice Act has disappeared. Law Minister Bhanu Bhakta Dhakal ignored the previous draft bill circulated by the Law Ministry. He is sending a political message to not endorse it after several statements by transitional justice actors including the National Human Rights Commission, Conflict Victims’ Common Platform and the UN that they reject outright the idea of ‘symbolic prosecution’ for serious crimes which are an effort to avoid international legal standards.

Various actors urged the government to conduct wider consultations with the victims, but the Law Ministry cancelled its proposed consultation meetings in the provinces and the capital.

The government has no clear roadmap to maintain these bodies or reconstitute them after the amendment. Some actors including activist victims have proposed forming a high-level mechanism that can move things forward, acknowledging that this is a political process, and that the political parties must conclude it by respecting history and addressing past crimes in a fair way.

What could be the modality to leave this very controversial time line? Regarding amendments to the draft bill, all important actors have already made public their recommendations to improve it. First, major political chiefs including the opposition must develop clear positions to progress towards truth by making a comprehensive documentation of the violations, honouring the conflict victims and respecting their contribution to the political struggle, investigating crimes and implementing the rule of law, preparing a comprehensive reparation policy in partnership with victims’ groups to create a local and national support mechanism, and humanising their suffering and memorialising them.

During recent consultations in the districts, victims and experts suggested to the government to come up with clear policies and political commitment to address victims’ needs through, one, a participatory reparation policy; two, truth seeking policy and reconciliation policy; and three, prosecution policy with a vision of non-repetition. It’s time to re-think and create a productive partnership with wider victim groups to adapt a local strategy by respecting principled norms of justice. The government must conduct a complete re-orientation process of the justice mechanism, not only through a legal amendment or reconstitution of the existing commissions.

The authorities must condition their mind to not protect and promote human rights abusers in government bodies and security institutions. This is necessary to create a political climate for real reconciliation that may support all victims and the wider society for mutual cooperation to establish a prosperous socio-political environment to guarantee non-repetition. The process demands high-level political commitment to address issues of conflict related violations by satisfying victims’ needs and re-orienting the contentious (transitional) justice process in a participatory and transformative way. This demands fostering a sustained local approach where every actor participates and contributes to the process. The authorities can mobilise local governments to contribute while civil society and internationals must provide their expertise and technical support to conclude the process.

 

Way forward

Prime Minister KP Oli and co-chairman of the Nepal Communist Party Pushpa Kamal Dahal must immediately pledge to resolve conflict-related human rights violations while respecting justice norms and human dignity through a joint national address. The government must form a high-level mechanism that can regulate transitional justice bodies and monitor the process by mobilising government ministries and agencies. This can bring local authorities and other actors together for a solution-led engagement, besides coordinating and monitoring donors and diplomats to advance a collaborative approach based on the transformative agenda of the Comprehensive Peace Accord.

Both national and foreign actors such as embassies, donors and the UN must clarify their role, funding policy and diplomatic position in terms of their engagement policy to support victim justice. The government must coordinate with all actors to create a common national agenda and ensure the participation victims’ groups in the whole process as a national campaign where they can create their spaces and define their role.

 The government must take the initiative to bring a sustainable solution to an unresolved issue of the Comprehensive Peace Agreement and create a progressive society. Wider consultations and constructive engagements are needed to move forward with an inclusive social justice policy and real political commitment.

 

Bhandari is founder president of the National Network of Families of Disappeared and Missing (NEFAD) and co-founder of the Conflict Victim Common Platform.