By Binod Ghimire in Kathmandu Post, November 25, 2020
The commissioners at the Commission of Investigation on Enforced Disappeared Persons and the Truth and Reconciliation Commission, mandated to look into the conflict-era human rights cases, are already lobbying for the extension of their terms that end in three months.
And this time, they want an extension of four years saying that it will take at least that long to complete the investigations. The duration of the tenure is at the government’s discretion.
But without political commitment, it is unlikely that the investigations into the 2,506 complaints of disappearances and 63,718 cases in the truth commission will ever be completed.
“Finding out the whereabouts of the disappeared from years back is a challenging job,” Ganga Dhar Adhikari, spokesperson for the disappearance commission, told the Post. “The commission needs at least four years to complete the investigation.”
The Comprehensive Peace Agreement was signed fourteen years ago and had envisioned making public information about the disappeared or those killed during the decade-long armed conflict within 60 days of signing of the deal.
But it took over nine years just to establish the two commissions. And although it’s over five years since the transitional justice commissions were formed, not a single case has been investigated so far.
“The process won’t move ahead unless there is a political will,” said Govinda Bandi, a human rights lawyer. “Political parties still aren’t serious about concluding the transitional justice process.”
Incumbent commissioners at the two commissions are the second set of office bearers after two two-year terms of the first ended in 2019 and they were appointed in early 2020. But they have not made much progress and the Covid-19 pandemic has come as a welcome excuse.
The commissions took four years just to receive the complaints from the victims.
Human rights defenders say the existing leadership cannot make any decision against the parties’ will because they are political appointees.
According to spokesperson Adhikari, they have already put forth their demands for a four-year term extension of the commissioners before Minister for Law and Justice Shiva Maya Tumbahangphe, Nepali Congress President Sher Bahadur Deuba and Nepal Communist Party deputy parliamentary leader Subas Nembang.
The two commissions have received complaints against Nepal Communist Party (NCP) chair Pushpa Kamal Dahal, who was the commander of the rebel force, and Deuba, under whose prime ministership an emergency was imposed in the country at the height of the conflict. The highest number of enforced disappearances is reported during Deuba’s tenure.
Former Speaker Daman Nath Dhungana, a civil society leader, said concluding transitional justice needs the people with high political and social stature like Desmond Tutu in South Africa.
“The parties didn’t choose the established people because such people wouldn’t listen to them,” he told the Post. “The existing team of commissioners is neither capable nor free to carry out investigations.”
Unlike the disappearance commission, the truth commission has not made any formal decision about the term extension but its officials say it is clear that completing the investigation is not possible in a year or two.
“There is so much load that it is impossible to complete [investigations] in a couple of years,” Govinda Sharma, a member of the commission, told the Post. “However, we haven’t made any recommendations on the term extension yet.”
In its four years of tenure, the previous truth commission received 63,718 complaints and completed a preliminary investigation that involved recording of statements from only 3,787 of the complainants.
Similarly, between 2015 and 2019, the disappearance commission received 3,223 complaints from family members saying their loved ones had disappeared during the decade-long conflict. Of these, the commission is investigating only 2,506 complaints saying others didn’t fall under its jurisdiction. The commission has completed preliminary investigation into the complaints from 67 districts.
Officials at the Law Ministry say although they are aware that the two commissions need an extension, the period remains undecided.
Rishi Rajbhandari, secretary at the ministry, said the extension process is yet to begin.
But more important than appointing commissioners is the amendment to the Enforced Disappearance Enquiry, Truth and Reconciliation Act-2014 as ordered by the Supreme Court in 2015 since it does not adhere to international principles of transitional justice.
Existing legal provisions give the transitional justice commissions room for amnesty even in serious cases of human rights violations. The 2015 order said convicts in cases related to rape, extrajudicial killing, enforced disappearance and torture cannot be granted amnesty.
But according to Rajbhandari, no work has yet been done for the amendment even five years after the court order.
“The law will not be amended without an agreement among the parties,” said human rights lawyer Bandi.
Sharma of the Truth and Reconciliation, on the other hand, expects the amendment to happen soon.
“We expect that the Act will be revised as per the Supreme Court decisions while deciding about the tenure of the commissions,” said Sharma.
The commissioners request, however, is unlikely to be fulfilled.
“I don’t think it is possible to extend by four years,” said Rajbhandari
It is not only victims and the human rights campaigners within the country that are concerned about the lack of progress in transitional justice.
Last week, on the eve of the 14th anniversary of the signing of the peace deal between the government and the rebels, the New York-based Human Rights Watch and Kathmandu-based Advocacy Forum jointly published a report expressing concern over the lack of progress in transitional justice and warned this could invite international jurisdiction.
The international community has already acted on violations during the decade-long conflict.
In 2013, Nepal Army Colonel Kumar Lama was arrested in London for his alleged involvement in illegal arrests, disappearances, torture and extrajudicial killings during the insurgency. His charges were cleared in September 2016.
In July 2016, then CPN (Maoist Centre) chief Dahal was forced to cancel his visit to Australia fearing arrest on the charges of abductions and extrajudicial executions that took place during the insurgency after some civil society members filed a complaint against him with the New South Wales state government.
Dahal, who was scheduled to inaugurate a convention of the People’s Progressive Forum Australia, his party’s foreign wing, in Sydney, promptly pulled out of the event.
Rights observers say these two incidents had then prompted the political leadership to attempt to find a resolution to transitional justice in the homeland.
But there has been little progress since.
But Dhungana has a warning for Nepal’s political leadership that the world is watching the transitional justice process in Nepal and there could be a foreign intervention if victims appeal to the international community.
“It is already too late,” said Dhungana. “It is possible that the cases of human rights violations from the war era will be internationalised and tried in international courts.”
https://kathmandupost.com/national/2020/11/25/transitional-justice-commissions-lobby-for-term-extension-as-justice-eludes-victims
