Submit your Article

Lack of seriousness on the part of political par­ties and their ‘delay tactics’ have increased the risk of ‘international intervention’ in Nepal’s Transitional Justice (TJ) process, which has not made substantial progress since the sign­ing of the Comprehensive Peace Agreement (CPA) in November 2006. Experts and observers say failure to amicably settle war-era human rights cases would attract the wrong kind of international attention. Avert­ing such a scenario requires Nepal to address the issue through credible national mechanisms by taking all stakeholders on board. But major par­ties that have been in power since the start of the peace process seem indifferent.

Of late, the international community has piled up pressure on the government to settle the tran­sitional justice process, a vital part of the peace process, at the earliest. In January, the United Nations in Kathmandu, together with nine foreign embassies, urged the government to clarify how it intends to take the TJ process forward, to great annoyance of the government and the ruling party leaders.

This month, five special rapporteurs under the United Nations High Commissioner for Human Rights wrote a 10-page letter to Foreign Minister Pradeep Gyawali seeking transparency and close consultation in selection of members of the two transitional justice mechanisms, namely the Truth and Reconciliation Commission (TRC) and the Commission on Investigation of Enforced Disappeared Persons (CIEDP). Gyawali has repeat­edly assured the international community that there will be no blanket amnesty, but the commit­ment has not been translated into action.

 'I have an impression that the army will keep its cards close to its chest until there is a broad political agreement'

Binoj Basnyat,a retired Nepali Army major-general

Dare not fail us

Conflict victims, though divided on some issues, are getting impatient and losing hope. “Parties want to derail this process by employing delay tactics. They are yet to consult with us on how to amend the law and conclude the TJ process,” says Suman Adhikari, former Chairman of the Conflict Victims Common Platform, an umbrella body of activists seeking justice and repa­rations.

Conflict victims say if national mecha­nisms fail them, they will have no alterna­tive but to internationalize this issue. In fact, some have already approached the UN and other international organizations for justice. The recent visit of the Nepal Communist Party Co-chairman Pushpa Kamal Dahal to the US, ostensibly for his wife’s treatment, also highlights the gravity of the TJ process. A complaint was filed at the Federal Bureau of Investigation to arrest Dahal and investigate war-era human rights violations, which forced the US government to issue a ‘no investigation’ circular.

Those complicit in rights violations can be arrested anywhere in the world under the principle of ‘universal jurisdiction’ of human rights. Earlier, Kumar Lama, a senior Nepal Army official, was arrested in the UK on charges of war-era violations. (He was later tried and acquitted.)

“If the ongoing national process fails to end pervasive impunity and deliver justice and reparations to the victims, they will knock on the doors of the United Nations or international courts,” says Geja Sharma Wagle, a political analyst who has been closely involved in the peace process. “But internationalizing the TJ process would be suicidal for the government as well as the ruling and opposition parties. As such, this process should soon be concluded by tak­ing conflict victims into confidence.”

It has been almost 13 years since the CPA was signed, but one key aspect of the peace process—providing justice to conflict victims—is still prickly. As per government data, around Rs 166 billion has already been spent on the peace process. But there has been little progress on the TJ front. The office bearers of the two commissions—the TRC and the CIEDP, which were set up in 2015—recently took retirement, and the government has formed a panel for new appointments.

Deadly delay

Experts, however, say having new faces would not be sufficient. They are of the view that the TRC Act should be amended in line with the Supreme Court verdict, which means the TJ process should meet interna­tional standards, and amnesty should not be given on serious rights violations such as rape, torture, killings, and disappearances. Additionally, the commissions should be empowered to recommend legal action against those involved in grave violations.

A former TRC member blames lack of support from political leadership, failure to amend the law, and inadequate resources for the two commissions’ dysfunction. No amendment to the law means a continu­ation of the same tendencies for the next five years. “It seems that some ruling party leaders think they can kill this process by using delay tactics, but that is not possible. The delay would only erode trust in our national mechanisms and attract interna­tional interest,” says a high-level official familiar with the process.

Mounting international and domestic pressure has made some leaders from both the ruling and opposition parties realize the importance of concluding the TJ process through national mechanisms. But ex-Mao­ist leaders are reluctant to go by the SC ver­dict. By and large, the former rebels want to settle the process through reparations, but this alone will not be acceptable to the international community or to the conflict victims. Although the erstwhile CPN-UML leaders are receptive to the idea of amend­ing the law in line with the SC verdict, Prime Minister KP Oli is under pressure from co-chair Dahal not to do so.

Among others, the issue of transitional justice was one reason for the unification in 2017 between the two communist par­ties led by Oli and Dahal respectively. Oli has reportedly assured Dahal that no case would be filed against him in national or international courts.

On war-era cases, the Nepal Army and the main opposition Nepali Congress hold sim­ilar positions to that of the government. NC President Sher Bahadur Deuba had served as the prime minister while the Maoist conflict was at its peak and had imposed an emergency; he fears he could be dragged into war-era cases, and therefore prefers almost blanket amnesty in those cases.

Binoj Basnyat, a retired Nepali Army major-general, says, “The army proceeds as per the government’s decision regarding gross rights violations during the conflict. So, first, a common political direction that meets international principles and national rules on human rights needs to be charted. I have an impression that the army will keep its cards close to its chest until there is a broad political agreement.”

The politicization of war-era cases in the past decade has also complicated the TJ process. Initially, the cases were used by the parliamentary parties against the Maoists as a bargaining tool. Mainly, the former insur­gents were threatened that war-era cases could be taken to international courts. Not only political parties, some human rights groups and individual activists also created unnecessary uproar about transitional justice. While some advocated blanket amnesty, others talked about international courts, both of which were against the principles of transitional justice. Now, such voices have become faint.

Currently the two transitional justice commissions are without leadership. The government on March 25 formed a five-member committee led by former Chief Justice Om Prakash Mishra to select two chairpersons and members. The govern­ment claims to be working to amend the transitional justice laws in line with the SC verdict, but there is no public discussion on it. Together, the two transitional justice commissions have received around 66,000 war-era complaints but preliminary inves­tigation has been conducted on very few of them.

 By Shambhu Yadav | Siraha / Raj Karan Mahato | Mahottari

  Dukhani Sadaya from Lahan municipality in the district of Siraha is now 65, an age when she becomes eligible for social security allowance. But she is still struggling to get a citizenship certificate, which is a prerequisite to apply for government services. Her son Rajkumar Sadaya, 35, and daughter-in-law Anita Sadaya, 32, do not have citizenship certificates either. In fact, no one from the Sadaya family has a citizenship card.

Dukhani’s husband Banhu Sadaya, who passed away last year, had knocked on the doors of government offices numerous times to get a citi­zenship card, but all in vain. Banhu’s father Munar had also faced similar problems, which means the family has been deprived of government ser­vices for three generations.

 No one from the Sadaya family has a citizenship card

Rajkumar has one daugh­ter, Bhagwati, and two sons, Rakesh and Mukesh. When Rajkumar applied for birth certificates for Bhagwati and Rakesh, the erstwhile Village Development Committee (VDC) did not demand their parents’ citizenship certifi­cates. But the authorities asked for those certificates when Rajkumar applied for a birth certificate for his young­est son Mukesh. Because Mukesh’s parents did not have citizenship cards, he could not get a birth certificate.

Mukesh attends the village’s primary school, but he is not formally enrolled as he does not have a birth certificate. Says Rajkumar, “Even though we have visited various gov­ernment offices, nothing has come of it. My forefathers could not get citizenship cards, so we are facing difficul­ties now. The government pol­icies make us feel stateless.”

Rajkumar works as a man­ual laborer in the construc­tion business. Although he dreams of building his own house with his hard-earned money, it looks unlikely, both because he lacks a citizenship certificate and because what he makes barely covers his household expenses.

In contrast, Kisani Sadaya and Khajani Sadaya from another ward in Lahan munic­ipality received their citizen­ship certificates in 2006. But because their husbands do not have citizenship cards, their sons could not get birth cer­tificates. As such, they cannot enroll in a school.

Traditionally, members of the Musahar community worked for local landlords, and getting citizenship cards was never an important con­sideration for them.

“Nobody made them aware about the significance of get­ting citizenship certificates, so they are facing problems now,” says rights activist Binod Bisuke. He suggests the government carry out a sur­vey of the Musahars and issue citizenship certificates to bona fide citizens.

Chief District Officer Rudra Prasad Pandit says that if anyone presents a document proving that their family has lived in Nepal for three gener­ations, it can be used to sup­port their case for acquiring a citizenship certificate.

On the other hand, 23-year-old Manjaya Sadaya from the district of Mahottari is happy to finally receive his citizen­ship certificate after struggling to obtain it for six years. “Now I will try to get a government job,” he says elatedly. Earlier, he could not enjoy govern­ment services, open a bank account, vote in elections or avail himself of scholarship opportunities because he did not have a card to prove his citizenship.

With the intent of building mutual understanding and developing greater cooperation with their neighbors, the Chinese are proposing a ‘win-win’ formula. Some Chinese offi­cials say, albeit indirectly, that Asia should lead the world. It’s certainly true the Chinese are enjoying rapid prosperity. Driven by feelings of nationalism and ‘Asia first’, they are pursuing development on a war footing. They see all this as a step toward global supremacy.

Based on my conversations with Chinese officials and academics here, I sense that China is hungry for global leadership. To some extent, it has embraced western ways and liberalized its society. Still, Chinese leaders are not used to listening to any kind of criticism. They may not say it, but their displeasure is reflect­ed in their faces.

Claiming they are already estab­lished in Europe, America and Afri­ca, the Chinese are now eying the markets of South Asia and West Asia (aka Middle East). To that end, they have chosen Nepal as a ‘launch pad’—even though they accept this is a daunting task. There may be another reason why they picked Nepal. Until recently, the Chinese were aloof with Nepal’s domestic politics, but they are now a force to reckon with in almost every sphere of Nepali politics and economy. The calculation could be that they are well-placed to influence events here.

China has been making a case for greater connectivity between South Asia, South East Asia and other regions through railways. It is actively working on reviving the old Silk Route and connecting with South Asian and South East Asian countries. China’s haste is evident; it wants to rapidly expand its market, and subsequently its supremacy, in these regions.

China intends to enhance regional and global connectivity, which it sees as key to development, through its Belt and Road Initiative (BRI).

The trilateral trick

Speaking to some journalists from Nepal, Singapore, The Philippines, Sri Lanka, Pakistan, Mongolia and Myanmar in the last week of March, Zhang Zhixin, Division Director of Asian Affairs at China’s Ministry of Foreign Affairs, said his country is keen on promoting mutual collab­oration, development, peace and prosperity. He said China is looking to connect with Nepal via railways and expressed his happiness that the project to extend the rail link from Kerung to Kathmandu has been dis­cussed at the highest level. “But such a costly project will not be feasible with grants alone,” he said, while also pointing out the importance of expanding road networks between the two countries.

In reference to the Indo-Pacific Strategy being pushed by the US, Professor Zhu Caihau said China is more concerned about charting its own path than competing with America. “It’s not for China to talk about the US Indo-Pacific Strategy. The onus is rather on individual countries to study it.”

What about accusations of a debt trap that China faces? “The BRI has been connecting maximum num­bers of countries. It is not only a transport network but also an eco­nomic one. China takes into account what its neighbors want and offers help accordingly,” says Zhu.

She stressed that China is par­ticularly interested in lifting Asian countries up. Speaking about Nepal, she said, “If Nepal plays its part well, the concept of trilateral cooperation between China, Nepal and India can succeed.”

Although India hasn’t signed on to the BRI yet, the Chinese are confi­dent that the Indians will eventually come around. Senior Researcher Me Xinyu said, “China can move ahead only with the help of its neighbors and friends”. Citing the example of the China Pakistan Economic Corridor (CPEC), he said, “Of the 22 projects, nine have been completed and 13 are in progress. The project has created 70,000 jobs for Paki­stanis.” He said he was saddened by the negative publicity around the BRI projects in Pakistan and Sri Lanka. “There is such publicity even in Nepal. The problems arose not because of the BRI, but because of internal reasons in Pakistan and Sri Lanka.”

Qi Xin, Senior Researcher at the Institute of Economy and Trade Cooperation under the BRI, said trilateral cooperation between China, Nepal and India would provide an easy means for Nepal to pursue development. “Transport facility, fuel sup­ply, free trade and infrastructure development will all improve if trilateral cooperation moves ahead.” Almost all Chinese participants said there would be no problems if Nepal deals with its two neighbors on an equal footing.

China seems hungry for global leadership and has embraced western ways to some extent

 Although India hasn’t signed on to the BRI yet, the Chinese are confident that the Indians will eventually come around

Always a yam?

During the 1962 Sino-India war, India was concerned that Nepal was covertly supporting China. There were similar fears in 1973 when Nepal accepted Chinese aid for the construction of the Ring Road in Kathmandu. Westerners share the Indian suspicion that Nepal leans toward China. To dispel such doubts, some Chinese recommend that Nepal lay stress on trilateral cooperation, which they take as a part of the BRI.

During the last days of the Rana rule, in April 1947, US President Harry Truman had sent to King Tribhuwan a letter that explicit­ly recognized Nepal’s indepen­dence. At the time, India had the support of another superpower, the Soviet Union. Since that time, Nepal has been a geopolitical pawn in big-power rivalry.

Perhaps we can make the Chinese see that American presence in Nepal predates the start of the communist rule in their country, and Nepal will never allow its soil to be used for any anti-China activity. The Americans too could be more receptive to the idea of close cooperation between two age-old neighbors and the huge benefits that closer Nepal-China ties offer to a poor, landlocked country. The Indians, for their part, should be made to understand how serious Nepal is about trilateral coopera­tion and turning the country into a ‘vibrant economic bridge’.

Lalit Bahadur Budha, Surkhet

I witnessed a curious scene a couple of weeks ago when I visited a Raute settlement in Ratekhola in the mid-west­ern hilly district of Surkhet. Sitting on a river bank, Raute children were learning Nepali alphabets. Some were sitting in a circle and singing “Kapuri Ka”, a famous children’s rhyme. A few others were writing. They were also learn­ing English alphabets.

Raute children are fearful that their Chief might see them if they study near their settlement, so they go a little farther away to the banks of the Bheri River. “If our Chief comes to know about this, he will get angry. He tells us not to study but we have gone against his command,” says Birkha Bahadur Shahi sitting with his friends on the river banks. Nobody in Birkha’s family is literate; in fact, they believe studying is sinful.

 'There was a time when our Chief used to disapprove of us wearing slippers. But now we are wearing shoes. Times are changing. Soon we will also get to go to school'

 Dish Bahadur ShahiA Raute adolescent

Raute children, until some time back, used to get scared when they saw strangers. They hesitated to speak to anyone from outside their commu­nity. But with time they are becoming more outgoing and gregarious. Besides socializing with people from outside their community, these children are also keen on studying.

Two teachers have been assigned by the Social Service Center, an NGO, to teach the Raute children. “We are learn­ing Nepali and English alpha­bets. Soon we will start learn­ing numbers,” says Birkha Bahadur. “Eventually, I want to become a doctor. Or maybe a driver.”

Durga Khatri, one of the two teachers, says there has been a noticeable change in the children’s behavior since they began their studies. “They are showing greater interest in learning and are also more careful about clean­liness,” she says.

 Raute children tell visitors about their dream of going to school and getting a job

As Rautes are a nomadic tribe, Khatri says she follows the children wherever they go. “But we have to persuade the Rautes to settle in one place, which will help get their chil­dren to school. It might take time, but it is not impossible,” says Khatri.

Deepak Shahi, a Raute teen­ager who cannot go to school although he wants to, says, “Now we need to study; oth­erwise we will not get jobs.” He talks about his dream of becoming his group’s leader when he gets older and the changes he intends to intro­duce. “When I become Chief, I will ensure all children in my group go to school.”

Every day, the Raute settle­ment attracts a number of vis­itors. While some go there just to take photos, others visit to learn more about the nomadic group. Children in the settlement tell them about their dreams of going to school and getting a job one day. Peo­ple are awestruck when they hear this.

“Now it is hard to find game in the forest. And felling trees is strictly forbidden. So it is important that we study,” says Dish Bahadur Shahi, another teenager from the settlement. “I want to go to school and join the police force when I grow up. There was a time when our Chief used to disapprove of us wearing slippers. But now we are wearing shoes. Times are changing. Soon we will also get to go to school.”