ACHR WEEKLY REVIEW

Embargoed for: 01 May 2012
Review: 240/12

Justice eludes Nepal


By – Suhas Chakma, Director, Asian Centre for Human Rights

Also available in:
Seven Sisters Post
The Kathmandu Post
Tehelka

On 22 April 2012, groups representing victims of human rights violations both the security forces and the Maoists released a press statement condemning the dangers of general amnesty proposed in the Truth and Reconciliation Commission (TRC) of Nepal.

The draft legislation to establish the TRC framework has been under discussion in Nepal’s parliament since the signing of the Comprehensive Peace Agreement in November 2006. In 2007, the government drafted a flawed bill to establish the TRC. Following criticism, the bill went through several corrections and modifications. A consensus was emerging in the Parliamentary Committee to give some powers to grant amnesty with the consent of victims but not to give powers to grant amnesty for heinous crimes.

However, the political leadership of the three major parties i.e. the UCPN (Maoist), Nepali Congress and UML intervened and moved to withdraw the bill pending before parliament. In March 2012, these political parties agreed to table the draft TRC Bill by removing Section 25(2) of the proposed bill which lists “six unpardonable crimes” i.e. murder in captivity, murder of an unarmed person, rape, torture, forced disappearance and abduction. This decision to provide impunity violates the basic tenets of international human rights and humanitarian laws. From a security and development perspective this is a sheer madness: it sends a very wrong message to Nepal’s law enforcement personnel who have no respect for the law, burgeoning criminal groups and the armed opposition groups.

While the three major political parties have still not reached consensus as to whether to merge the TRC and the Commission of Inquiry into Disappearances, they have agreed that appointment of members to the TRC will be made based on “political consensus”. This implies an appointment process much in the manner of Nepal’s National Human Rights Commission (NHRC) i.e. seats divided amongst political parties with little or no concerns for qualification, competence or independence.

The position of the international community, not least those who will fund this expensive TRC process, should be very clear. But as yet it isn’t. While some in the international community oppose the TRC process as currently shaped, a few others are arguing that something is better than nothing: the TRC process must be given time and capacity building, and financial support will provide leverage in the medium term for a more satisfactory outcome.

The naivety of this approach can be best demonstrated by the ‘lessons learned’ from the experience of the NHRC. The international community, including the Office of the United Nations High Commissioner for Human Rights (OHCHR), took a similar line to the approach being considered for the TRC: the NHRC could be influenced over time with the help of extensive capacity building.

The NHRC experience demonstrates that providing technical and financial support in the context of a political consensus to provide impunity is futile. Twelve years of international support to the NHRC has meant little. The Commissioners are engaged in multiple court cases including allegations of corruption. The donors have had repeated internal discussions with the NHRC where the issues were made very plain. The NHRC’s problems of management, capacity, corruption and politicisation became a matter of public record. Commissioners have themselves publicly condemned the organisation, describing it as ‘deteriorating by the day’, ‘plagued by internal problems’, ‘self serving’, and ‘corrupt’. 

The donors and the UN have responded to public failure, repeated allegations of corruption and incompetence of the NHRC with fund renewal and indeed increased funding. The donors despite the overwhelming evidence repeatedly insisted on finding answers the NHRC’s problems in capacity building rather than recognising the structural flaws that made failure inevitable. The OHCHR in its twilight years in Nepal sought to extend its mandate in the country by extending unstinted support to the NHRC despite its known failures.

Stunningly, the International Coordination Committee of the National Human Rights Institutions (NHRIs) charged with accreditation of the NHRIs worldwide awarded the NHRC of Nepal “A – Status” in 2011 to certify that the NHRC of Nepal is a functional and independent institution. Prior to granting of A-Status, Nepalese media reported the views of the Acting Head of the OHCHR that to punish the NHRC of Nepal on matters beyond its control i.e. the weaknesses in the law governing its mandate was “unfair”. This position of the OHCHR is flawed as the sole consideration should be whether or not the NHRC complies with the Paris Principles on the NHRIs.

The results are all there to see. In January 2012, the Government of Nepal passed the NHRC Amendment Act. The government has been given the right of controlling financial activities of the NHRC and a statutory limitation has been put to prevent the the NHRC from intervening in the cases of human rights violations if they are not reported within six months of occurrence. The NHRC has not only been reduced to an administrative arm of the executive from an independent constitutional body but has been effectively barred from inquiring into past abuses. By the OHCHR’s yardsticks, it would still be unfair to blame the NHRC of Nepal!

If the donor’s strategy did not work for the NHRC, it is unlikely that it would work in the case of the TRC. Yet, many more millions of tax payers’ dollars will be spent to support the TRC. The time has come for the international community, most notably, the UN to stand up against impunity in Nepal. An unsatisfactory TRC will not only betray the victims but it will damage all other human rights, security and development efforts. No funding should be given unless the government of Nepal demonstrates political will by actually implementing clearly defined commitments and reversing policy decisions that buttress impunity. A TRC that does not give amnesty to “six unpardonable crimes” must be the basis for starting any support, technical or financial, to the TRC by the international community.