The controversy goes to the heart of Nepal’s governance failure and the erosion of the rule of law. Politicians have tampered with the doctrine of the separation of powers, and politically appointed justices have returned the favour.
But there was a larger lapse of justice that went virtually unnoticed this week. It has been exactly 15 years after the Comprehensive Peace Accord (CPA) was signed on 21 November 2006 between the Maoist commander Prachanda and Prime Minister Girija Prasad Koirala of the Nepali Congress (NC).
As per the provisions of the CPA, two commissions to investigate the disappeared and for truth and reconciliation were to be set up and given two years to do their job. This being Nepal, it took a full ten years for the Truth and Reconciliation Commission (TRC) and the Commission on the Investigation of Enforced Disappearances (CIED) to start their work.
The United Nations, Nepal’s Western partners and international human rights watchdog groups were the driving force behind the transitional justice process, and if it was not for them it would have been unlikely that the country’s 14 prime ministers since 2006 would have made any moves to rake up wartime excesses.
The rationale behind transitional justice is that until survivors and families of victims find truth and justice, there will be no closure, residual revenge will poison societal relations, and there will be a danger of the country slipping back into violent conflict.
Justice denied also promotes impunity in other arenas of national politics, as we see today. It is also important to keep the memory of the conflict years alive, and document the untold death and suffering it caused. Nepalis have to be reminded not to forget.
Yet, memories fade, time moves on, people drift into everyday routines and try to get on with their lives. Transitional justice would have at least helped heal the loss for families of the victims, provided society with closure, and perpetrators of war crimes a chance for atonement.
But, as with all other spheres of national life, the transitional justice mechanisms have been politcised from the word go. The leadership of the Maoist, NC and to a lesser degree the UML, all colluded to appoint yes men to the TRC and the CIED, extending their mandates over and over again with no hearings, trials or verdicts against those involved in heinous crimes.
The toothless commissions collected tens of thousands of testimonies from families of victims and survivors, but the files are all mothballed in steel cabinets in their offices. Meanwhile, in the past 15 years, there has been plenty of lip service, blame game, scapegoating and tokenism. The two commissions have actually been used by politicians to prevent cases from moving through the regular courts.
In fact, on the 15th anniversary of the CPA, Prachanda who has gone back to his peacetime name of Pushpa Kamal Dahal, vowed to complete the transitional justice process. In a statement on 21 November and an English op-ed in The Kathmandu Post, he termed Nepal’s peace process a ‘successful homegrown model’ for other post-conflict countries.
‘Although the conflict was brought to an end, the task of investigating events that occurred during the war and to provide victims with transitional justice remains,’ Dahal said in his statement. ‘We are proud of what the revolution achieved, but we will probe wartime excesses.’
The fact that most other political leaders did not even bother to acknowledge the CPA anniversary showed that Dahal knows the sword of justice hangs over his head. With Western backing for the transitional process not as vigorous as it once was, he knows he just has to keep on saying the right things.
The CPA pledged to ‘investigate human rights violations and those involved in crimes against humanity’. With every year that goes by, it looks less and less likely that will happen. There are still more than 2,000 people listed as missing, and some of their families have waited two decades already to know whether they are dead or alive, or what happened to them.
Many families of the disappeared interviewed by this newspaper have said finding out the truth is more important than justice. This could also mean they do not expect the state to persecute known perpetrators, so they do not even ask for justice. But their anguish is heightened when they see war criminals in senior leadership positions, who never had to answer for their crimes.
As Meenakshi Ganguly, South Asia director at Human Rights Watch, said in a statement issued jointly with Amnesty International, the International Commission of Jurists and TRIAL International on 21 November: ‘State officials’ reluctance to investigate and prosecute such serious crimes has exacerbated the suffering of victims, undermined the rule of law in post-conflict Nepal, and increased the risk of such violations in the future.’
She went on to warn: ‘If justice is continually denied in Nepal, perpetrators of these international crimes committed during the conflict will be prosecuted abroad under international jurisdiction.’