Incident Reports

No more secrecy- Binodh Ghimire's Oped on Transitional Justice



More than a month after the second amendment to the Enforced Disappearances Enquiry, Truth and Reconciliation Commission Act, 2014, the government formed a recommendation committee to suggest candidates to replace the existing leadership of the two transitional justice bodies. The Truth and Reconciliation Commission and the Commission of Investigation on Enforced Disappeared Persons each has five members including the chairperson.

The amendment followed demands by conflict victims and a section of human rights defenders who largely blamed the incumbent leadership for the nonperformance of the commissions. It is no secret that a majority of conflict victims backed by human rights activists have been critical of the two commissions ever since they were formed in early 2015. They even refused to provide any sort of support or cooperation for months to vent their ire against the selection of the chair and other members, most of whom secured their seats through the spoils system despite lacking expertise to be the part of the transitional justice process.

Even though objections from human rights activists and victims were partially a manifestation of their anger at not being appointed to the commissions, it is true that there was no proper consultation by the government before making the selections. The people, who are the key stakeholders in the process, were largely kept in the dark while picking the leadership of the transitional justice bodies. There are multiple factors that led to the failure of the two commissions to deliver the expected results in the last four years. Selecting the officials without bringing the victims’ community and human rights defenders into confidence is one of the main reasons.

The formation of the present recommendation committee shows that the government hasn’t learnt from its mistakes. The committee led by former chief justice Om Prakash Mishra was constituted without the consent of the victims’ representatives and human rights activists. Apart from Mishra, the committee has one member each from the Nepali Congress, the former CPN-UML and the CPN-Maoist Centre, very much like in 2015.

Conflict victim leaders and a section of rights defenders have started protesting against the committee arguing that the government kept them in the dark during the entire selection process despite reiterated commitments to make the process transparent. They doubt if the Mishra-led panel will be able to recommend competent replacements for the existing officials who are retiring on April 14.

This is yet another serious sign that the stakeholders will give the new team that will take charge of the Truth and Reconciliation Commission and the Commission of Investigation on Enforced Disappeared Persons the cold shoulder like in the past. This means the new leadership will also end up producing nothing during their two-year tenure like their predecessors.

The second amendment to the act envisions allowing a maximum of two years to the new team to complete its investigation into war era cases of human rights violations and recommend legal action against the perpetrators. This is a challenging job given the work load the two commissions have. The new leadership in the Truth and Reconciliation Commission will have a daunting task to finish going through 63,000 cases while the Commission of Investigation on Enforced Disappeared Persons will have to deal with around 3,000 cases. 

It may sound pessimistic, but the fact is even the new team, no matter how competent it is, will fail if the victims’ community and human rights defenders don’t take ownership of the selection process. The government has already made a mistake by forming the Mishra-led committee without consulting them. But there is still time to set things right. The government and the main opposition, which are said to be on the same page regarding the transitional justice process, have to do two things if they really want to give justice to the thousands of victims who have been waiting for more than a decade.

First, they need to amend the existing act in accordance with the 2015 Supreme Court ruling and international norms and practices. The court had struck down almost a dozen provisions in the existing laws and sought clarity on the categorisation of serious crimes, serious human rights violations and other crimes of a serious nature. The existing law is very ambiguous on the matter and opens the door for amnesty even in serious cases of human rights violations. The only way to make the victims, human rights activists and the international community more hopeful is to amend the act immediately and ensure that the perpetrators involved in heinous crimes during the insurgency will be put behind bars.

Second, the political leadership should make sure that every member of the two commissions is selected transparently after proper consultations with every stakeholder. Unlike four years ago, merit should be the sole criteria for selection and not affiliation to the political parties. Otherwise, they are doomed to failure once again.

Ghimire tweets at @binodjourno.