Transitional justice

Doing it right

March 15, 2017 00:35 AM Geja Sharma Wagle


Transitional justice is always a messy affair but Nepal’s transitional justice process has also been needlessly complicated and prolonged
Despite the exemplary precedent on the management of arms and ex-combatants of the then rebel force, CPN (Maoist), Nepal’s fragile peace process is still incomplete. It is already a decade since the start of the peace process with the signing of the Comprehensive Peace Accord in 2006. A new constitution was nonetheless promulgated last year after the completion of management of arms and ex-combatants. These are both significant developments. Yet there has not been unsatisfactory progress on the most important part of the peace process, transitional justice. 

It is sad that issues like truth and reconciliation, enforced disappearances, and reparation and compensation for conflict victims remain unresolved. Transitional justice is a perpetual, messy and contentious process for any post-conflict society and the risk of failure always looms. But Nepal’s transitional justice process has been needlessly complicated because of the controversial transitional justice laws and dubious character of political parties. Moreover, the apathy of successive governments, the Truth and Reconciliation Commission (TRC), and the Commission of Investigation on Enforced Disappeared Persons (CIEDP) have made conflict victims even more vulnerable. 

If adequate attention had been given to transitional justice, perpetrators who had committed serious crimes during the conflict would have been punished long ago and justice done to conflict victims.

But for long neither the government nor the political parties constituted the TRC and the CIEDP, nor did they make a sincere effort to ensure transitional justice by ending the culture of impunity. This situation is dismal. According to the Ministry of Peace Reconstruction, 1,452 ‘enforced disappeared’ persons are still unaccounted for.

There was widespread criticism when the government promulgated transitional justice Act in 2014.

The Supreme Court had in the same year annulled the Act’s amnesty provision, saying that it is against the established principles of justice, constitution, international law and its earlier verdicts.

The apex court had also curtailed discretionary powers of the TRC and the CIEFD to grant amnesty, ending the fear that perpetrators would be acquitted without fair trial. According to the existing bill, the commissions can recommend amnesty for perpetrators, except in cases of rape and grave human rights violations. But the court decision bars the two commissions from initiating reconciliation without victims’ consent.

The government should have amended the act right after the court ruling. It did not. According to media reports, the government is preparing a revised Act without consulting relevant stakeholders like the National Human Rights Commission (NHRC), conflict victims, human rights bodies and international community before finalizing the bill so as to make it more rights- and victim-friendly.  

If the government and political parties are sincere about concluding the peace process, first, they should work towards making the Act more rights- and victim-friendly, and only in consultations with relevant stakeholders. Unlike the task of arms and ex-combatant management, which is a purely domestic affair, transitional justice is a universal affair. So it is important that the international community endorses Nepal’s transitional justice process. Therefore the Nepali state should abide by the international covenants, conventions and protocols to which Nepal is a party. Unless the Act is amended to address the concerns of the Supreme Court and the international community and until it is made acceptable to the victims, the process will not get legitimacy in international forums. If this happens, the international community will continue to time and again raise the issue of transitional justice in Nepal. 

Likewise, the revised law must criminalize torture and disappearance as serious crimes and list killings, enforced disappearance, rape and sexual violence as among crimes not liable for amnesty.

The revised Act must also clearly and unambiguously outline its preamble and clauses. The government and political parties should learn from the case of Colonel Kumar Lama and universal jurisdiction. 

Transitional justice is neither about prosecuting everybody nor about granting blanket amnesty to all perpetrators. Instead, the goal is to ensure justice for conflict victims and to end the culture of impunity. Therefore the revised Act should respect transitional justice principles and processes, ensure justice for conflict victims and create an environment of reconciliation. And there should be attractive reparations for conflict victims in minor rights violation cases. 

There are other controversial issues. One of the most controversial is sub-judice cases from conflict-era. Political parties have contradictory views on this. It would be better to hand over all such sub-judice cases to the yet-to-be-formed special court without contradicting the SC’s ruling. Likewise, there is in the Act a provision for transitional justice special trail court. But the proposed special court should not be another version of the TRC and the CIEDP. The special court should guarantee fair trial and there should be provision for appeal in the Supreme Court.

The government has already extended the tenure of the both commissions, the TRC and the CIEDP, by one year. But unless the government also amends the Act to make it more acceptable to conflict victims, the process cannot move ahead. The TRC and the CIEDP have received more than 60,000 and 3,000 complaints respectively. The two commissions did nothing but accept complaints for two years as they lacked both human resources and requisite budget. Nor do they have the needed expertise. The government should, therefore, immediately arrange for much-needed logistics including budget, and the commissions should also take the process ahead without delay. Otherwise, not only will the commissions be incompetent, Nepal’s botched transitional justice process could plant the seed for another conflict. 

Nepal concluded the integration and rehabilitation of ex-combatants, through a unique Nepali model. Nepal did not import or replicate any international model but learned a lot from other post-conflict countries on arms management, integration and rehabilitation.

Like the exemplary precedent of the peace process, Nepal’s transitional justice process can also set an example for the rest of the world and lay the ground for sustainable peace. Completing transitional justice at the earliest is in our national interest. Otherwise the international community will continue to raise troubling questions about Nepal’s transitional justice, thereby besmirching Nepal’s image abroad. 

The author is co-editor of the book ‘Emerging Security Challenges of Nepal’ and research fellow at Birmingham University in the UK

Twitter: @GejaWagle


Leave A Comment