South Asians for Human Rights (SAHR) is a membership based regional organisation working for the protection of human rights, peace building and democratic progress. SAHR conducted a peace mission to Nepal to assess the efforts made to address the impact of conflict on people and, in particular, to assess the extent of women’s active participation in initiatives for peace and in the transitional justice processes instituted by the state.
During its visit to Nepal from 11-13 July 2016, the Mission met with the Prime Minister Hon. K.P. Oli, the Chief Justice, Hon. Sushila Karki, the Minister of Women, Children and Social Welfare, Hon. C. P. Mainali, members of parliament, the Truth and Reconciliation Commission, National Human Rights Commission, Commission on Investigation of Enforced Disappearances, leaders of political parties, representatives of civil society groups and the Resident Coordinator of the UN and the heads of UNICEF and UN Women. (See annex for list of persons met by the Mission)
Conclusions and Observations
The adoption of the 2015 new Constitution is a major step in Nepal’s democratic progress that brings with it both opportunities as well as challenges. The Constitution has guaranteed fundamental rights and set up various Commissions for safeguarding rights and to deal with past conflict related issues such as disappearances and transitional justice. While the adoption of the Constitution ended the legal and political uncertainty that prevailed following the ending of monarchy and the conclusion of the Comprehensive Peace Agreement in 2006, it was also followed by strong protest by sections of the population such as the Madhesis in the Southern plains region of the country, who feel that their interests were not fully accommodated in the new federal structure. Political divisions in the parliament also threaten the stability and continuity of Government. These are clear signs that this transitional phase is fraught with challenges that call for more serious efforts by the political leadership and other stakeholders to manage the transition in a manner that would bring lasting positive peace and stable democratic governance.
TRANSITIONAL JUSTICE MECHANISMS:
Truth and Reconciliation Commission
The establishment of Truth and Reconciliation Commission is a positive step. However, the law establishing the TRC was not fully compatible with international standards governing transitional justice process. Despite the limitations, it should be acknowledged that it is the first such initiative in the region and the level of its success and the standard of its performance will be of critical value for other countries in the region. The Commission has made commendable efforts to give maximum access to the conflict affected population and has reached out to victims of serious violations in all districts. The Commission has taken some steps to engage the affected women directly in the TRC processes. These efforts need to be strengthened, expanded and sustained.
The composition of the Commission whose members are drawn from different political parties may, nevertheless, raise concerns regarding the independence and impartiality of the Commission, and may adversely affect the perception regarding its credibility. The Mission has also observed that propositions concerning amnesty for conflict related crimes are still under discussion. This has raised doubts regarding intentions of all political parties to ensure accountability for past crimes committed during the conflict especially sexual violence. Any wavering of commitment on accountability would weaken the prospects for justice to victims and establishing lasting peace.
The Commission is likely to receive almost 60,000 petitions from surviving victims and relatives of deceased victims. It has only seven months left to complete its mandate with the possibility of an extension for one year. It is apparent that if all petitioners are to receive redress, not only would the Commission require extension of the mandated period, but adequate arrangements will have to be made to dispose of all petitions that are left unaddressed owing to the expiry of the Commission’s tenure. However, transitional justice initiatives to be effective laws must be amended to criminalize torture and enforced disappearances and remove statutory limitations for prosecution of conflict related crimes including sexual violence.
The international community should provide relevant support to the Commission for carrying out its work in areas where it finds that the quality and the standard of justice could be improved to conform to international standards.
Commission on Investigation of Enforced Disappearances
Despite limited resources and the complexity of the issues involved in dealing with enforced disappearances and the issue of missing persons, the Commission has made a good beginning in carrying out its mandate. It has made progress in seeking information and initiating investigation on disappeared/missing persons. Considering the number of cases that have been brought before it, the complex legal and technical requirements of investigation and of the final settlement of cases, the time allocated to the Commission is far too short. The extension of its tenure for a further period of one year would be most rational and reasonable. The Commission should also be provided with additional human and financial resources. In addition, it requires international expertise to adequately carry out its mandate. It may be pointed out that the nature of the work of this Commission being highly sensitive, it is incumbent on the government and state security apparatus to ensure that the there is neither any interference with the work of the Commission, nor is the safety and security of any member of the Commission, its staff or any person cooperating with it jeopardized at any stage.
National Human Rights Commission
Since 2000, the NHRC has made recommendations on 735 cases of grave human rights violations. It is, however, disappointing that many of the recommendations made by the NHRC have not been acted upon. The Government has so far acted upon only 106 recommendations that most of these dealing with compensation. Not a single case has been prosecuted by the Government. This is despite the Supreme Court judgment making it mandatory for taking action on NHRCs recommendations. A serious commitment towards the protection of human rights and the genuine intention to eliminate impunity for serious violations for human rights can only be demonstrated by respecting the mandate of the NHRC and giving full effect to its recommendations. The Government should, in particular, act upon NHRCs proposals for amending the relevant laws to ensure that prosecution is initiated based on NHRCs recommendations.
SAHR welcomes the work of NHRC in the area of trafficking. However, it should ensure effective and continuous functioning of the Office of National Rapporteur on Trafficking against Women and Children set up by it. On issues that have a regional dimension, such as trafficking, the NHRC may consider finding ways to engage with NHRCs of other countries in the region. NHRC should strengthen coordination with other Commissions particularly with the TRC. The NHRC should consider handling the petitions received by the TRC once the TRC mandate comes to an end. To ensure effectiveness and avoid duplication there should be greater coordination between Commissions dealing with human rights, transitional justice, women and dalits. The Commissions should streamline the process of receiving and handling complaints and expedite resolution of cases. This is particularly important since the judicial process involves expenses and delay which the ordinary people would like to avoid while approaching the Commissions.
The emergence of a strong women’s movement in Nepal has contributed to greater recognition of women’s rights at the political and institutional levels. However, the Nepalese women continue to face socio cultural and structural barriers to achieve equality in all spheres. The role of the judiciary in highlighting women’s right to equality, protection against violence and political participation through authoritative judgments is very encouraging. The present National Women’s Commission’s strong focus on violence against women should be further strengthened. The Government should increase its human and financial resources to ensure its affective functioning. The Ministry of Women’s Affairs should develop programmes contribute to further strengthen the gains made so far by the women’s movement.
While some programs have been launched to give effect to the UN resolutions on enhancing the role of women in peace building and on giving due recognition to their contributions in this field, Nepal has still to make more efforts to widen the spaces for women’s participation in mainstream peace and security discourse. Women’s inclusion in all decisions taken at political, social and economic forums that relate to security, conflict resolution, peace building and to determining modes of post conflict reconstruction is an imperative inherent in the Constitution of the country. Nepal has yet to give real and meaningful opportunities for women’s participation in this aspect of national life.
Child labour, child marriage and child trafficking continue as major concerns. Children particularly girl children were recruited as child soldiers during the ten year long conflict. The UNICEF in collaboration with various government departments has made considerable efforts to rehabilitate former child soldiers. UNICEF has also initiated innovative programme of setting up children’s clubs in rural areas to ensure that children themselves tackle problems like child marriage through peer pressure and by advocating against such practices with the elders. The Mission was particularly disturbed by accounts of children being used for political rallies by different political elements. It is unfortunate that public action based on political grievances of one or the other political party or group has negatively impacted the best interest of children. The Mission has also noted with regret that during the demonstrations in the Terai region by the Madhesi groups schools were closed for long periods and access to immunization and health care were denied to children. To safeguard the welfare and the best interest of children is the responsibility of the state as well as all responsible citizens. The Mission hopes that the government will take all measures necessary to ensure that children’s rights and welfare do not suffer because of political tensions in the country.
There seemed to be an acknowledgment by the political parties that inclusive political process and development is essential for building a stable and democratic state. However, the rhetoric of inclusiveness should be made functional through policies and their effective implementation. The prevailing economic, caste and ethnic based inequalities must be addressed to facilitate real inclusiveness in all spheres. In particular, the inclusiveness of women in all aspects of political governance as well as social and economic development would be an essential aspect of inclusiveness.
On behalf of the mission members
The SAHR Peace Mission was led by Hina Jilani and the members included Ms. Palwasha Hasan (Afghansitan); Prof. Sadeka Halim (Bangladesh); Mr. D. J. Ravindran (India); Ms. Afshan Latheef (the Maldives); Ms. Bharati Silawal – Giri, Ms.Priti Mandal and Mr. Dinesh Tripathi (Nepal); Ms. Hina Jilani (Pakistan); Ms. Deekshya Illangasinghe and Ms. Anushaya Collure (Sri Lanka).
Persons met by the South Asian Peace Mission
- Hon. K.P. Oli, the Prime Minister of Nepal
- Hon. Sushila Karki, the Chief Justice of Nepal
- Hon. Minister, Mr. CP Mainali, Minister of Women, Children and Social Welfare
- Hon. Mr. Surya Kiran Gurung, Chief Commissioner, Truth and Reconciliation Commission
- Hon. Mr. Anup Raj Sharma, Chief Commissioner, National Human Rights Commission
- Ms. Bhagwati Ghimire, Acting Chair, National Women’s Commission
- Prof. Bishnu Pattak and Mr. Bijul B.K. Dulal, Commissioners of the Commission on Investigation of Enforced Disappearances
- Ms. Valeri Julliand, UN, Resident Co-ordinator
- Mr. Ziad Shiekh, Country Representative, UN Women
- Mr. Tomoo Hozumi, Country Representative, UNICEF, UN House
- Members of the Parliament
- Members of the civil society