The Moment of Truth
An effective Truth and Reconciliation Commission in Nepal would require additional bodies working alongside it – from prosecution and accountability mechanisms to reparation and reform programs.
The Himalayan state of Nepal, wedged between two giants – China and India – has been plagued by conflict, instability and intractable political divisions for years. The Federal Democratic Republic of Nepal – which it is now officially known as – experienced its second elections since the abolishment of its 240-year-old monarchy in 2006, following the 10-year revolt led by the Communist Party of Nepal (Maoists). The country has been running under an interim constitution since 2008.
The previous elections, which were held on April 10, 2008, saw the Maoists elected to power and forming a coalition government after having won the largest number of seats in the Constituent Assembly (CA). Unfortunately, the Maoists were unable to cope with the challenges. In May 2009, their government was replaced by another coalition government and a virtual musical chairs of power followed till fresh elections were held in November 2013 under an interim government led by Chief Justice Khilraj Regmi.
A clear majority was not achieved by any political party, leading to a deadlock, which was resolved in midFebruary when Nepal's parliament picked a social democrat as its new prime minister after a last-minute power-sharing deal. Sushil Koirala, the head of the centrist Nepali Congress party, was elected with support from the communist UML party, which holds the second-largest number of seats in the CA.
Koirala faces two major challenges
– drafting a new constitution for Nepal and dealing with the Truth and Reconciliation Commission (TRC). The commitment to form a TRC was part of the 2006 Comprehensive Peace Accord, which ended the decade-long conflict between the state and Maoist forces. The TRC was tasked with investigating human rights violations that occurred from 1996 to 2006, during which at least 13,000 people were killed and 1,300 went missing. An independent report by the International Commission of Jurists found that both parties to the conflict – the Nepalese Army and members of the former Maoist rebels – committed grave human rights violations.
While drafting the new constitution will be an uphill task because of political differences, the TRC is an equally difficult challenge. Framing a new constitution is an internal matter of Nepal but the TRC is under the microscope of international human rights organizations, the UN and various donor agencies.
After considerable delays, on March 14, 2013, the government of Nepal approved the TRC titled Ordinance on Investigation of Disappeared People, Truth and Reconciliation Commission, 2069. The ordinance calls for the immediate creation of a two-year Truth and Reconciliation Commission comprising five independent commissioners. Under the ordinance, the Commission’s functions include “bring[ing] the real fact before [the] public by investigating the truth of the cases in relation to the events of serious violation[s] of human rights including disappeared persons in the course of armed conflict,” and “reconcil[ing] the perpetrator and the victim.”
The Commission would investigate both known human rights violations as well as violations brought to its attention by or on behalf of a victim. Some hearings may be public and, upon its conclusion, the Commission would release a report on its findings and recommendations for individual perpetrators to be either granted amnesty or be prosecuted by the attorney general in Nepal. The Commission would also provide recommendations to the Nepalese government on the appropriate compensation for identified victims.
The ordinance has faced serious controversies. The most knotty issue with the TRC is the legal provision authorizing the Commission to recommend amnesty for perpetrators of human rights violations.
The UN and the donor community also expressed their reluctance to support a TRC that does not meet international standards. Some other serious objections are that the ordinance was finalized and approved by only four of Nepal’s political parties, with even officials of the National Human Right Commission claiming to have been denied access to the ordinance’s final version. It was perceived that the TRC took cognizance of only political considerations.
It has been pointed out that structurally, the Commission lacks guarantees of impartiality and independence that are required to ensure a meaningful and effective process for national reconciliation. These concerns stem in part from the requirement that the Commission is supposed to attain government permission before obtaining any international support, which effectively serves as a built-in dependency on the government for funding and resources. The Commission’s potential has also been curtailed by its work being limited to only two years, which limits its chances of successfully addressing a conflict that spanned ten years and resulted in thousands of deaths and disappearances.
Unsurprisingly, only a fortnight after the passage of the bill, the Nepalese Supreme Court suspended the TRC from taking effect, pending a further review of the planned Commission. The court ruled that the provisions of the ordinance concerning amnesties, limitations on criminal prosecution and a 35day limit for filing cases contravene fundamental rights guaranteed by the constitution of Nepal, its justice system and international law. It also ordered the Commission to meet international standards, including guarantees of autonomy and impartiality and to ensure the involvement and protection of victims and witnesses.
As a neutral observer of the proceedings, one can’t help wonder why an exercise aimed at achieving reconciliation has hit serious snags even before it could take off.
Perhaps Nepal could learn a lesson or two from the TRC of South Africa, which had endeavored to reach the truth through a free and fair dialogue. The Commission would require the participation of neutral officials, who could enable the healing process. The first step would be the creation of a safe and open space for stories to be told and the installment of strong social-support mechanisms for those who shared their experiences, a necessary part of this process. The participants must not fear retaliation or reprisal for their narrative, which is essential for fact-finding.
Secondly, frustration among conflict victims regarding their limited participation in the formation processes of the current ordinance might further shape and reduce their future engagements with the TRC. Furthermore, the objections of conflict victims to amnesty are based on their observation that the truth produced by the TRC cannot replace the different and additional truth established in the court, one of an individual’s legal responsibilities to conflict-era crimes.
For a fractured society like that of Nepal’s, the process of reconciliation and healing can only take place if the root causes of the conflict are addressed and when a brighter future, free of conflict is visible. The societal divides will have to be bridged and inequalities and injustices addressed. An effective TRC in Nepal would require additional bodies working alongside it, from prosecution and accountability mechanisms to reparations and reform programs.
The quest for truth and reconciliation should be based on a genuine desire for durable peace. The canvas of the TRC must be broadened and various state organs, especially the judiciary and other support mechanisms, must be strengthened. The task for Sushil Koirala, the new incumbent in the prime minister’s office, is not going to be easy, especially because he heads a coalition government. If he wants to leave his mark on history as one who brought peace to the Nepalese people and remolded them into a united nation, he will have to give utmost attention to the working of the TRC.