The Comprehensive Peace Accord and the Interim Constitution envisioned the establishment of a special transitional justice mechanism to create the Truth and Reconciliation Commission to ensure that victims of the conflict receive justice immediately, a system for their rehabilitation is organized, and that perpetrators are brought to justice. Nearly 15000 people lost their lives in the hands of the state and the rebels during the decade long period of conflict, and the whereabouts of more than 1200 people is still not known. Hundreds have been made victims of mutilation and thousands displaced. Thousands of people have therefore been affected by the conflict, either directly or indirectly.
The proposed system in Nepal:
The objective of the proposed Truth and Reconciliation Commission Act – 2066 is to investigate the truth about grave human rights violations, bring the facts to the public, bring the perpetrators of such incidents to justice, rehabilitate and compensate victims of such crimes, end impunity, ensure that such acts do not happen again in the future, and prepare an atmosphere of peace and reconciliation by encouraging goodwill, cooperation and fraternity between the perpetrators and victims.
The process of establishing a Truth and Reconciliation Commission in Nepal was begun as per the provision in Article 5.2.5 of the Comprehensive Peace Accord through the “Truth and Reconciliation Commission Act”. Similarly a parallel commission related to the Truth and Reconciliation Commission but more specifically dealing with the finding of disappeared individuals, has been provisioned for in Article 5.2.3 of the CPA.
In the international context, it has been found that Truth and Reconciliation Commissions have been established in countries which are in a post-conflict situation, or after the fall of an oppressive military dictatorship, to address and give justice to cases of extreme human rights violations that have occurred during that time. The names of such commissions may differ according to the countries identity or its needs.
Although the names of the commissions might be different, their task and long term objectives are somewhat similar. Their task is to research and investigate those incidents of grave human rights violations that have occurred during times of conflict or military dictatorship or an authoritarian system or civil war, find and publicize the status of disappeared citizens, study and investigate the grave human rights violations of extra-judicial killings and torture of citizens and publicize and bring the perpetrators of such crimes to justice by recommending to the government for action; and ensuring that victims are able to feel that they have received justice. Besides this [the commissions] also search for displaced persons, study and investigate incidents of human rights and human law violation, create an atmosphere of peace, reconciliation, goodwill, cooperation and justice in the society, so every individual may live an honorable life. Similarly the commissions also recommend for the rehabilitation of victims, and recommend corrective actions in the system to ensure that such incidents do not occur in the future.
Time duration of the Commission: Proposed system in Nepal
The time duration of the Commission has been provisioned to be two years from the date of the creation of the commission. There is also a provision of extending the deadline by one year, opening up the reason why it could not complete its mission within the first two years. However international experiences show that the commission in Uganda formed in 1974 had the shortest time duration of 6 months. Most other commissions had time duration of 2-3years.
Structure of the Commission, number and task modality: Proposed System in Nepal
In the proposed Act, it has been provided for seven members with a minimum of two women members. Under the Chairmanship of the Speaker, one member will be appointed by the Chair of the National Human Rights Commission, while the Nepal Government will appoint one member from amongst human rights activists, psychologists, lawyers, legal experts, conflict experts, social scientists, women’s rights activists, and those involved in the peace process. The three member committee will recommend for the Chair and member. The members of the Commission must be Nepali citizens.
Provisions have been placed for the commission thus formed to formulate its own work modality. The Member-secretary of the Commission will be a special class gazetted official from Nepal’s judicial service. While it has been said that the Nepal Government shall provide the necessary officials, if the government is unable to provide the specialist as per the need of the Commission, the Commission has the authority to appoint a specialist on contract. While the Government is also responsible for allocating financial resources the Commission also has the authority to organize financial resources from national and international organizations directly.
Authority and task of Commission: Proposed system in Nepal
The Commission has been given the authority to investigate any issue if any victim or any individual on behalf of the victim files a complaint with the Commission, or if the Commission comes to find out about the issue from any source. In order to regulate this, procedures for the investigation process, compulsory provision to assist the Commission, system of action against anyone disregarding the Commissions request, protection of witness and other related individuals, and public hearing have been outlined. Likewise provisions have also been made to make all of the Commissions work transparent, independent and unbiased. This includes documenting and coordinating the complaint, recommending for rehabilitation, and presenting a report for institutional reform. “Grave human rights violation” has been defined for this.
Implementation of the Recommendations and monitoring
The proposed Act has provisions to write to the Office of the Attorney General, or to the Nepal Government, or the Cabinet of Ministers, to implement the recommendations of the Commission or the Report, or to ask permission from the Nepal Government or the Ministerial Cabinet to self implement or implement it through another concerned agency, or to take steps towards making necessary laws deemed necessary for the implementation of the recommendations and register cases. Likewise the National Human Rights Commission has been given the responsibility of monitoring whether or not the recommendation has been duly implemented, according to which there are also provisions for the National Human Rights Commission to bring the concerned Ministry to attention to implement the recommendations and to make the Ministry immediately implement the issues brought to attention.
Problems in unbiased appointments of officials and inclusiveness:
While the Act provides for the recommendation of one chairman and member by a committee headed by the Speaker, in which the Chair of the National Human Rights Commission appoints one member, and one member is nominated by the Nepal Government from amongst human rights activists, lawyer, psychologist, legal expert, conflict expert, social scientist, women’s rights activist, or anyone involved in the peace process, there are doubts as to whether the appointments of officials can be unbiased due to the culture of apportioning to parties in the name of inclusiveness and experts. Although the Act has provisions for a maximum of seven members, it will be difficult to make the Commission inclusive in view of current political trend and increasing demand for inclusiveness of apportioning to parties.
Misuse of Reconciliation:
There is a guaranteed possibility that the Commission may misuse the provision for reconciliation when the perpetrators and victims give a reconciliation request letter to the Commission by making the perpetrators repent for the action, apologize to the victim, and ask the perpetrator to compensate the victim. On one hand while there are conditions for the victim to be coerced or threatened or forcefully made to agree to reconciliation, the perpetrators could also attempt to compel victims, especially from the deprived classes, with financial temptations or through coercion, to agree to reconciliation.
Wrong advantage of amnesty
Although the Act has provisions to recommend to the Nepal Government to provide amnesty to be given to individuals associated with grave human rights violations if deemed justified, and on the basis adequate proof and reasons, because of Nepal’s political system, the culture of having mutual understandings based on political interests, and misuse of the transitional period, there is a possibility that the perpetrators will take advantage of this clause. The Act must therefore clarify further the clause regarding amnesty.
In order to implement the Commissions work on time, the proposed Act has fixed the timeline of the Commission for two years with the provision for extension on a justified basis for one year. Political parties need to be aware from the very beginning that due to the geographical complexity of Nepal and limited available resources it might be difficult to investigate the truth about human rights violations and serious crimes and interact directly with the victims within the given time frame.
Problems in witness protection:
While the Act provisions for adequate measures for security to be provided to any individual who stands before the Commission as a witness, informant, or give a statement, or if any victim or a family member of the victim requests the Commission for security, or if it is seen to be important to provide security to an individual who is working or assisting the Commission, the Commission will have to depend on the Nepal Police to provide security.
Lack of capable human and financial resources:
Although it is the responsibility of the government to ensure that the Commission has adequate human and financial resources, there is a certainty that there will be a lack of adequate human and financial resources. Although the proposed Act provisions for the Commission to appoint officials and take financial assistance with the approval of the government due to the limited availability of time, the complicated process of appointing officials, and the time required to organize financial resources, it is certain that the Commission’s initiation will take time.
Hurdle in unbiased hearing
Although there have been political changes and transformations in the country after the Comprehensive Peace Accord was signed, because non of the perpetrators of human rights violations have been brought to justice, many individuals in high political posts, the government and security agencies are living freely. The hearing procedures especially related to cases of murders and disappearances are likely to be affected because those related to such crimes still have access and influence over government agencies and political parties.
No guarantee in the implementation of the report and problems in monitoring
Although the proposed Act provides for the Commission’s report be presented in the Assembly, observing the current trends and working modality, there is no guarantee that the report will be accessible to the common people. It is the responsibility of the government to implement the report of the Commission while the National Human Rights Commission has been given the responsibility to monitor it. In the proposed Act, although there are provisions for the report and the recommendation of the Commission for its implementation to be sent in writing to the office of the Attorney General, or the Nepal Government, or the ministerial cabinet, or to implement the recommendations by itself or another concerned agency after obtaining permission from the Nepal Government, as the Office of the Attorney General is the legal advisor of the government, until the office is itself made independent, capable and resourceful, the implementation of the recommendations by the Commission is likely to be affected.
Although the proposed Act seems generous on issues of human rights, there are equally complicated challenges in its implementation. This Act is still weak in terms of international codes of conduct. Therefore to amend such inequalities, the proposed Act which is has been limited to the Legislative Committee of the Legislative Assembly must be taken to stakeholders for a final discussion. Its final form must be prepared by the members of the Legislative Committee and specialists of this sector together. This final form of the Act must be immediately passed by the Legislative Assembly and an independent, unbiased, and an able Truth and Reconciliation Commission be formed as per the sentiments expressed in the Act.
(The final report of this research conducted by human rights activist and conflict analyst Shovakar Budathoki for the Nepal Constitution Foundation, has been prepared on the basis of inputs given by various pressure groups including those representing women, indigenous communities, Dalit community, Madhesi community, youth groups and various other groups. The Foundation is grateful to Durga Sewa, Mandira Sharma, Ranju Thakur, Jeevan Pariyar, Dan Bahadur Buda, Furpa Tamang, Abhishek Adhikary, Hari Fuyal, Dr. Surya Dhungel, and Dr. Bipin Adhikary. This research has been supported by the Asia Foundation. Views and opinions expressed in this report are of the authors and don’t necessarily reflect those of The Asia Foundation.)