Transitional justice: An uphill task

For the victims, acknowledgment of the painful past is necessary for them to move on with their lives. Reconciliation should include the acknowledgement of past atrocities along with vision of a new society

Nepal’s Truth and Reconciliation Commission (TRC), a transitional justice body, is unlikely to accomplish reconciliation with its current approach and pace of work. The TRC has already disappointed many victims and their families since the first phase of the investigation is long overdue. Recently, the commission received a one-year extension after the two-year decree expired in February 2017.

The TRC first accepted complaints from victims for a three-month period in 2016. In 2017, the commission accepted a second round of complaints where more than 58,000 complaints were lodged against former military personnel and political parties. The grievances include alleged cases of torture, murder and rape.

Despite talks in 2006, the TRC was set up after much delay in 2015. The commission was formed after a law was implemented by the Constituent Assembly to investigate and find out what happened during the war and enable survivors to receive reparations and justice. The TRC is in accordance with the Enforced Disappearances Enquiry, Truth and Reconciliation Commission Act (TRC) 2014.

There are stark criticisms on the lack of progress and lack of commitment to socioeconomic issues by the TRC. The country’s reconciliation process is hampered by socio-economic and legal challenges, de jure and de facto impunity, weak centralised institutions and weak rule of law. Many think that none of the parties have any interest in delivering justice for victims. The highly awaited TRC report is likely to be released at a much later date.

In February 2015, the country’s Supreme Court held that the amnesty clause in the TRC act was unconstitutional. Since the ruling, some survivors and their families have appealed in court to amend the TRC Act in order for it to meet international standards.

Surya Kiran Gurung, the chairman of the TRC, has said that there is no legal provision in the country’s penal code to criminalise torture, hence making prosecution difficult.

Significant questions will remain about the transitional justice process if the amnesty clause is not amended. There are allegations that the perpetrators are being protected from criminal liability. Moreover disrespect for the rule of law and a culture of impunity has been created in Nepal. The Constituent Assembly should consider reviewing the legal clause on amnesty. The current provision is likely to leave thousands of victims without access to legal justice.

The TRC has promised to start an inquiry on the human rights abuses, dig out the truth and find information about missing people. Abduction, torture and murder were common during the war. Many Nepalis want to know what happened to their family members who were taken away by the Maoist rebels. The commission also aims to identify both victims and perpetrators since there is ambiguity on who the victims and who the alleged perpetrators are.

The commission’s members have admitted that it will be an uphill task for them to hear the thousands of cases in the next one year. Around 58,052 complaints of criminal infractions that took place during the civil war have been lodged at TRC. It will take years for the TRC to investigate and form facts behind all the cases.

One way of resolving the cases is by setting up community courts in local provinces such as Janakpur, Hetauda, Pokhara, Tulsipur, Surkhet and Dipayal. Community tribunals known as the Gacaca courts were set up in Rwanda to speed up the backlog of hundreds of thousands cases involving people suspected of genocide.

The community courts were formed in villages across the country and were adjudicated by judges elected from their own communities.

The five-member TRC consists of advocates, civil servants and academics stemming from different backgrounds. However, there is no civil society representative. Civil society representation is imperative in order for the TRC to implement one of its key recommendations.

A Victims’ Association is an essential part of a country’s path to transitional justice and reconciliation. They provide a wide range of support for victims and their families. Professional grief counsellors lend counselling support the victims need in order to let go of the past atrocities inflicted on them.

In 1999, the Maoist Victim’s Association (MVA) was formed by Ganesh Chiluwal that pushed the government for rehabilitation for victims. The MVA claimed to have around 27,000 members nationwide. However, Chiluwal was assassinated by Maoist rebels during a rally in 2003. Not much information has been documented on whether the MVA has made any progress over the years.

The government should consider setting up a brand new Victims’ Association or consider working with the MVA to provide rehabilitation and counselling support for victims.

For the victims, acknowledgment of the painful past is necessary for them to move on with their lives. Reconciliation should include the acknowledgement of past atrocities along with vision of a new society. It is a part of the country’s healing and joint sorrow process.

The idea of healing has become an inclusive part of post-conflict justice processes in recent decades. In Guatemala, many victims suffered from psychological and physiological repercussions even two years after the civil war.