The Elusive Transitional Justice

  6 min 35 sec to read
The Elusive Transitional Justice

The indifference of the country’s political leadership towards providing justice to the victims of the insurgency has delayed transitional justice to a bigger extent.

Amid growing disappointment among the victims of the decade-long Maoist insurgency, Co-chair of Nepal Communist Party, Pushpa Kamal Dahal on September 26, said he was committed to taking the responsibility of positive and negative consequences of the conflict and ready to face the actions for his part in it. He went on to say, in the programme organised by the National Human Rights Commission, as the only living signatory of the peace process, he is ready to walk together with the conflict victims in concluding the transitional process that is pending for over a decade.

He reiterated his statement two months later in a programme organised by the conflict victims on the 13th anniversary of the Comprehensive Peace Agreement, the accord signed by Dahal as a commander of the rebel Maoists and Girija Prasad Koirala as the prime minister and the leader of the seven-party alliance that fought against the autocracy of King Gyanendra. The public commitment from the Co-chair of the ruling party and the signatory of the peace process gave a respite to the otherwise frustrated victims. Following Dahal’s back to back statements, the conflict victims had hoped that the selection of the new teams in the two transitional justice bodies and the amendment to Enforced Disappeared and Truth and Reconciliation Commission Act, 2014 would move together.

However, over a month after his assurance, there has been no development towards addressing the concerns of the victims, but instead, to their utter dismay, Dahal has floated a proposal to form a political mechanism to oversee the works of the two transitional justice commissions. In his political paper presented in the party’s Standing Committee, he has said there should be a mechanism, which is political in nature, to support the works of the Truth and Reconciliation Commission and the Commission of Investigation of Enforced Disappeared Persons.

The victims see the latest development as a conspiracy to politicise the transitional justice process and stop the prosecutions. They say while the parties must have a consensus on forwarding the process ahead, it is equally necessary that they don’t intervene in the works of two commissions. They are also sceptical with the act of the recommendation committee led by former Chief Justice Mishra who is delaying the appointment process as the parties fail to build consensus on the candidates to lead the commissions.

The truth and the disappeared commissions have been vacant since April 14 after the government relieved them from their jobs through a revision in the existing transitional justice law. “While the recommendation committee has proved itself their rubber stamp, the parties are working to form a political mechanism to legitimise the politicisation,” said Suman Adhikari, former Chairman of Conflict Victims Common Platform. He argues, how can the commissions led by the people picked by the parties do a fair investigation into the war-era cases of human rights violations.

Both the commissions have received the complaints against Dahal and Nepali Congress President Sher Bahadur Deuba for their ‘role’ in the cases of killings and enforced disappearances during the insurgency that lasted from 1996 till 2006.

Through the peace accord both sides—the state and the rebels- agreed to make public, within 60 days of the signing, information about the real names, caste, and addresses of the people disappeared or killed during the war, and inform family members. They also had expressed their commitment to conclude the entire transitional justice process within a few years. However, the victims from both sides are still waiting for the day when the parties will take positive steps towards providing them with justice.

Despite signing the peace accord in 2006, it was only in February 2015 when the two commissions were formed to investigate the war-era cases of human rights violations and crime against humanity. It was only after immense pressure from the conflict victims, civil society organisations and international community that the government formed the two commissions. However, in their four years, they did nothing other than collect the complaints from the victims and their families and conduct a preliminary investigation into a few of the cases.

The truth commission has received around 63,000 complaints while the disappearance commission received 3,157 cases. “We thought the commissions would deliver justice while also providing some reparations,” said Amrit Dangal from Sindhupalchwok whose father Netra Bahadur was killed by the rebels in 2001.

The latest report by the International Committee of Red Cross shows 1,333 people are still missing in connection with the conflict though the disappeared commission has received more than double this number.

Promulgation of the constitution by the Constituent Assembly, integration of the Maoist combatants into the security forces and concluding the transitional justice were three broad goals set by the peace accord. The parties after long negotiations successfully managed the Maoist combatants by integrating them into the Nepal Army or giving a financial package based on their period of enrolment. Though the disqualified Maoist combatants have some reservations, the army integration was largely successful.

Similarly, the parties demonstrated an unparalleled culture of consensus by coming together for the promulgation of the Constitution of Nepal which is the first statute drafted by the representatives of the people. The parties, which are applauded for their roles in the army integration and constitution promulgation, fail miserably when it comes to transitional justice. 

The people privy to the developments in the transitional justice process say, the fear psyche among the leadership of the former Maoist and Nepali Congress is one of the reasons for the delay. They say some extreme views from civil society, human rights community and even the conflict victims that everyone who is associated with the insurgency should be put behind bars is another reason that is prompting the parties for the continuous postponement. “I think the party leaders were not briefed properly on the transitional justice process,” said a former Minister for Law and Justice on the condition of anonymity. “Nowhere in the world have those who have been involved in the war been put behind bars.”

He said transitional justice is largely a reconciliatory process where perpetrators are prosecuted in some of the emblematic cases of human rights violations.  However, the authority for the pardon should lie with the victims. “I believe the parties have realised that they cannot further delay the process as it attracts universal jurisdiction,” said the former minister who is also a leader of the ruling party.

A leader from the main opposition Congress also shares similar views. He said the ongoing winter session of parliament will endorse the amendment to the transitional justice Act and both the commissions will get their leadership very soon. The sources privy to the development say the top leadership from both the ruling and the main opposition parties have realised that they must conclude the process of taking the victims into confidence.

The human rights activists say the sooner the parties realise that they should deliver justice to the victims, the better for them. They say the parties should first have meaningful consultations with the victims and the concerned stakeholders and amend the Act before appointing the new leadership in the two commissions. “The world is watching the transitional justice process,” said human rights activist Kapil Shrestha. “It won’t be surprising if the cases from Nepal are internalised if the negligence persists.” 

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