Nepal’s transitional justice mechanisms have failed to involve victims in their activities The Transitional Justice Act contains no provision about addressing the root causes of the Maoist conflict such as land issues, structural violence, poverty, and corruption Feb 3, 2016- In the 10 years since the end of the Maoist conflict, a number of cracks have appeared in the edifice of impunity erected by Nepal’s politicians. Last month, the Supreme Court ruled against pardoning Maoist leader and former lawmaker Balkrishna Dhungel, the Kavre District Court ordered an investigation of army officer Niranjan Basnet, the National Human Rights Commission (NHRC) recommended that the government investigate senior police officers, army officials, and political leaders involved in conflict-related crimes, and the Rayamajhi Commission investigated and recommended to the government to probe serving Inspector General of the Armed Police Force Durja Kumar Rai and Foreign Minister Kamal Thapa. Similarly, the UN Human Rights Committee recently urged the government to investigate senior police officer Pitamber Adhikari, currently the police chief of Lalitpur, over Tej Bahadur Bhandari’s disappearance.

The NHRC has repeatedly called for an investigation of senior army officer Raju Basnet who is alleged to have disappeared 49 student activists from Bhairavnath barrack. Likewise, it has called for an investigation of Kathmandu chief of police Bikram Singh Thapa who is alleged to have been involved in the killing in custody of journalist and writer Krishna Sen Ichhuk and the disappearance of Bipin Bhandari and many student activists from Kathmandu. Despite such positive developments, politically protected perpetrators still occupy positions of power and abuse resources, so much so that victims see criminals being rewarded every day. Nepal’s post-conflict justice system is becoming weaker and politically influenced and is moving towards an entirely perpetrator-centered approach.

After long discussions about attempting to forget conflict-era cases, the government formed a Truth and Reconciliation Commission (TRC) and a Commission of Investigation on Enforced Disappeared Persons (CIEDP) through political consensus. This was done with the apparent aim of protecting political leaders and providing a clean chit to the security forces. In the past 12 months, these commissions have spent public resources doing nothing. They are not only abusing public resources but also killing any hope of a victim-centered justice process. The shadowy influence of the security forces and the direct influence of political power persist; and the army, police, and political parties have come together to safeguard their perceived common interests. There is no appropriate security environment for those defending the victims or a provision for victim or witness protection. The regular threats that I have been receiving are testimony to this. Similarly, other advocates for the victims do not feel secure. This shows that victims and witnesses cannot speak freely even as the commissions begin collecting testimony.

The commissions may also face challenges from both the security and political forces, and they do not seem to be strong enough to demand that senior government and security officials and leading politicians testify. The government has appealed for a review of the Supreme Court’s decision of February 26, 2015, to create political reconciliation at the top, which is currently pending. However, there is almost no possibility of amending the full bench verdict of the apex court. There is no law to criminalize enforced disappearances or torture, nor a clear roadmap for the two commissions to deliver truth and justice to the victims and the nation, representing a missed opportunity for transitional justice. The commissions’ politics The commissions should not be guided by politics. The TRC’s visits to the districts have helped to divide the victims, and active victims who are critical of the commissions and want an active role in the process have been portrayed as the enemy. The commissioners have lobbied politically through politically affiliated victims and local peace committees (LPCs) during their district visits to marginalize independent victims, and they have lost the opportunity to bring all the victims together. Instead of learning from the victims’ common platform, they have lost credibility on the ground. Independent victims’ organizations throughout the country have been critically engaging and monitoring the commissions’ process from the very beginning.

The commissions must learn from the failure of the LPCs which were controlled by local political party leaders. Currently, both the commissions have been relying on the LPCs to contact the victims instead of connecting with the wider community of victims and their associations. The maintenance of their independence remains a big question. The commissioners have been making regular visits to political leaders, security officials, and alleged perpetrators, which have spread doubts among the victims. Most importantly, their approach to dealing with the victims and their relatives is hesitant and remote, creating distance and frustrating potential cooperation. The commissions’ failure to understand that the victims are key protagonists and a potential driving force for a legitimate transitional justice process has compounded the lack of a victim focus in the law that created them.

A wholesale review and overhaul of the commissions’ operations are required to ensure victim participation and aid the development of communication with the victims’ representatives. The Transitional Justice Act contains no provision about addressing the root causes of the Maoist conflict such as land issues, structural violence, poverty, and corruption; and they are not on the radar of the current government either. If the commissions cannot play a role in understanding what drove the conflict, the likelihood of another one increases. The present unrest in the Tarai demonstrates just how few lessons have been learned from the recent past. Critical engagement Victims’ groups have given the benefit of the doubt to the commissions despite their lapses. The Conflict Victims’ Common Platform (CVCP) has adopted a position of critical engagement with the commissions. There is no meaningful participation of the victims in the process of developing rules and regulations or operational procedures through a broader consultative process. There is no guarantee that an institutional and physical environment will be created to ensure that all the victims can express themselves securely and appropriately before the commissions. The commissions spent their first year conducting top-level meetings and ensuring their own conditions without addressing any of the above issues. The CVCP believes that a credible transitional justice process cannot start without a commitment by the commissions to engage with the victims and ensure their meaningful participation. As the largest national network of conflict victims, the CVCP expects to see the creation of a suitable environment for their participation. If the hopes of the victims to play a role are dashed, the CVCP may resume its position of critical engagement besides appealing to the victims to seek an alternative path to justice. It might also potentially lead to an informal alternative process at the grassroots.