Nepal's transitory justice

Nineteen years after the end of the Maoist conflict, the former enemies have finally come together to push through the Enforced Disappearances Inquiry, Truth and Reconciliation Commission Act of 2014. 

This is the culmination of a two-decade long peace process that finally allowed the Maoists and the leaders they were trying to overthrow to agree on truth, justice and reparations for war crimes their forces were both involved in. Yet, there are still some contentious provisions in the bill and serious doubts persist about its honest implementation.

That Maoist supremo Pushpa Kamal Dahal (Prachanda) and Sher Bahadur Deuba of the Nepali Congress stood side by side to receive the report of a special committee last week was hugely symbolic — not just because till 2006 they were trying to kill each other, but also because they have both been prime minister multiple times since then. And time is supposed to heal.

The UML was less of a target during the conflict, and it fell upon Prime Minister K P Oli to steer this consensus. On Wednesday in Parliament, he hailed Nepal’s peace process as “a model of transitional justice for the world”. We don't know about that yet.

Western liberal democracies and the United Nations that had in the past been pushing Nepal hard on transitional justice with prosecution for war crimes have also been more muted about it. US Ambassador to Nepal, the EU Ambassador and the UN Resident Coordinator all posted on social media welcoming the bill despite the inadequacies cited by victims’ groups.

Civil society activists are not convinced the bill will fully address truth and justice issues. They find the definition and classification of wartime excesses still vague and designed deliberately to reduce punishment and prosecution. 

‘Any amendment to institutionalise impunity in the name of party consensus is unacceptable,’ said the Accountability Watch Committee in a statement earlier this week. Some conflict victims have also said the bill interferes with the right of the court to define, classify and determine serious violations of human rights.

The bill was relatively easy to push through because the Maoist party is considerably weaker, and is now in the opposition. And once the three leaders of the Maoists, NC and UML agreed, they got victims’ groups affiliated to their parties to sign up. Even though some victims feel the punishment for war crimes is watered down, after 18 years they want to move on. 

Last year, former Minister for Law and Constitutional Affairs Govinda Bandi (Govindaprasad Sharma Koirala) in the Maoist government tried to fast-track this bill with provisions that made a distinction between ‘political murder’ and ‘wartime killing’, and even classified torture into ‘humane’ and ‘inhumane’. It also did not give the right for appeal on a special court verdict.

Bandi’s bill was met with a public outcry, and a cross-party working group was set up to come up with a new draft defining serious violations of human rights, unresolved cases of reparations, and compensation for security personnel who died or were disabled.

The final bill now defines coercive or serious sexual violence, deliberate or arbitrary killings of unarmed people, acts of disappearance and inhuman or cruel torture as ‘violations of human rights’. Families of those killed, those who were injured or became disabled by landmines or war-era explosives are also eligible for compensation.

But the most egregious provision is still the one to reduce punishment ‘by 25%’ as per prevailing law for serious human rights violations except rape and serious sexual violence. How 25% is going to be applied is arbitrary. Proponents of the bill argue that transitional justice should not be viewed from the perspective of criminal justice alone because the crimes were committed during an armed conflict. 

More than 60,000 complaints have been filed with the Commission for the Investigation of the Disappeared and the Truth and Reconciliation Commission. There is a provision for the Commissions to call for renewed complaints for a period of three months.

Prime Minister Oli wants to form the commission by September before he goes to New York to speak at the UN General Assembly next month. The term of office of the chair and members of the commission will be four years which means the transitional justice process should be complete by September 2028. 

But that is easier said than done. Both commissions have underperformed spectacularly in the past because of lack of political will to face war crimes. There is no guarantee that the next commissioners will be more independent. Their persona and party loyalties will have a significant impact regardless of how good the law is.

So far, Nepal has spent Rs21 billion on reparations for families of the estimated 17,000 people killed or disappeared, and payouts to tens of thousands injured. The ghosts of those who died will continue to haunt the peace process until there is full truth and justice for war crimes.

Santa Gaha Magar