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Why has the transitional justice process not moved ahead?

Why has the transitional justice process not moved ahead?

Prime Minister Pushpa Kamal Dahal is keen to conclude the transitional justice process under his leadership—and on his own terms. Ever since he came to power last year, he has been striving to conclude the long drawn-out peace process. Besides trying to bring internal stakeholders on board the process, he has also been trying hard to win support of the international community.

For the same purpose, he registered an amendment bill on the transitional justice Act in Parliament, but he failed to convince the conflict victims as well as the international community. A few days back, he expedited the talks with the Nepali Congress and CPN-UML to forge a consensus on contentious issues of the transitional justice process. He even offered some upper house seats to the main opposition, UML, but to no avail. 

But the reality is that the transitional process is unlikely to move ahead under Dahal’s leadership. The government is preparing to endorse the amendment bill from Parliament from the next session, but it is unlikely due to the position taken by UML and the international community. 

It seems the UML has hardened its position regarding transitional justice. In a recent interview with ApEx, UML Chairman KP Sharma Oli said that since Sher Bahadur Deuba of the Nepali Congress was the prime minister during the insurgency period and Dahal was leading the armed insurgency, one cannot expect a fair and just transitional justice delivery under their leadership.  

Oli went further by stating that the Maoist party aims to conclude the process by neglecting the suffering of the war victims. The key issue, the opposition leader added, lies in addressing the grievances of the victims, ending impunity, and establishing the truth before moving towards reconciliation.

Regarding the contents of the amendment bill, there are concerns from the international community. According to the Human Rights Watch, the bill expands the list of violations covered by amnesties, including those crimes that cannot be forgiven under the international law. 

For example, the bill has proposed a two-year statute of limitations on rape complaints. It also prevents prosecution for cases of enforced disappearance, which became illegal under the Nepali law in 2018. The bill has also failed to address the issue of child soldiers. 

The Nepali Congress, a key coalition partner in the Dahal government, has not shown any eagerness to resolve the transitional justice process, nor does it have any concrete position on the contentious issues of the bill. 

It appears that the fate of the peace process hinges only on the positions taken by the UML and the Maoists.

Over the past year, Dahal has been trying to secure the support of the international community in his plan to conclude the transitional justice process. He even tried to secure the support of UN Secretary-General Antonio Guterres, but the latter reiterated the position of the international community in his address to Nepal’s federal parliament. 

He clearly said that the UN stands ready to support the victim-centered process and its implementation in line with international standards and Nepal’s Supreme Court rulings. “Transitional justice has the greatest chance of success when it is inclusive, comprehensive, and has victims at its heart,” Guterres told the parliament.

The message of the international community is loud and clear: there should not be amnesty on serious human rights violations. But the Nepali leaders, through the use of vague and unclear language and maintaining a strong influence in the transitional justice bodies, are seeking amnesty even on serious violations.

Over the past eight years, two transitional justice mechanisms—Truth and Reconciliation Commission and Commission for Investigation of Enforced Disappearance Cases—have hardly made any progress, except for receiving around 63,000 complaints from conflict victims.  The two bodies are currently without any officer-bearers, which has severely affected their works. 

Although a parliamentary sub-committee was entrusted to hammer out the differences concerning the transitional justice process, it is clear that only the major political parties can take the final call.

Since 2006, political parties of Nepal have been using the transitional justice issue as a bargaining chip to reach to power. The Nepali Congress and CPN-UML have long been using the peace process as a leverage to negotiate power-sharing deals with the Maoists. 

This tendency shows that the basic approach of the major parties towards approaching the transitional justice process is flawed. Instead of delivering justice to the victims of conflicts, major parties are using the peace process as a tool to reach power. 

In case it fails to convince the UML, the Dahal government is planning to endorse the transitional justice amendment bill through a majority vote. But that is unlikely to bring about any positive outcome, as was evident eight years ago. 

The Truth and Reconciliation Commission (TRC) has registered 64,000 complaints from the conflict victims to date. So far, it has managed to conduct preliminary investigations of only around 4,000 cases. Around 3,000 cases have been left in abeyance due to a lack of concrete evidence. 

Similarly, the Commission for Investigation of Enforced Disappearance Cases has received a total of 3,288 complaints. Out of these, 277 were transferred to the TRC, 292 were put on hold, 136 complaints were found to be duplicative, and 48 cases were resolved. Presently, the commission grapples with 258 active complaints.