Following a decade of conflict, a gross violation of human rights, lack of accountability and pervading impunity, current political shift, and transitional justice initiatives in Nepal appear to be crafting renewed prospects for transitional justice processes both at the national and federal level.
Given the context of Nepal where the national TJ process has been delayed, a holistic and devolved approach to transitional justice seems to be equally imperative, particularly now under the federal structure and acknowledging the experience of people’s war from length to breadth of the country.
With the provincial and local government making efforts for engagement with victims, their participation and announcing reparation schemes, a whole new dimension and window of opportunity is opening up to forge ahead towards a decentralized discourse in transitional justice efforts.
Furthermore, with the federal structure and powerful provincial and local government in place having a wide range of powers and responsibilities under the present constitution of Nepal, only national or central level TJ efforts may neither be effective nor logical hence a devolved operation is needed, even for the achievability and convenience of national level endeavors, further, promoting accountability in Nepal’s new governance structure towards conflict victims.
Dragging towards the 16 years of official process and signing of the Comprehensive Peace Accord signed on 21 November 2006, finally, at the national level, the new minister of law, justice and parliamentary affairs, Govinda Sharma Bandi has been appointed and tasked to expedite and facilitate the conclusion of the TJ process and amend the heavily challenged TRC act in line with verdict of Supreme Court of Nepal.
A devolved and federalized direction and the process can further provide a broader and holistic field for national transitional justice efforts and interventions, from a narrow legalistic approach to TJ.
Most recently the TJ bill has been registered in the parliament secretariat after the consultation and dialogues conducted both at the national and provincial levels, collecting suggestions/recommendations/feedback from relevant stakeholders and conflict victims.
Subsequently, at the provincial and local level, initiatives are sprouting, with various reparation schemes and funds for victims being conscripted by the concerned provincial government, thus, acknowledging the human rights abuses victims suffered during the war.
Recently under the initiative of Bharat Shah, Minister of Internal Affairs and Communication of Madesh Pradesh, Madeshi Shahid Pratishtan (Madesh Martyr’s Foundation) has been established ensuring reparation and recognition to the conflict victims.
Previously the foundation represented only those victimized during the Madesh movement however after Bharat Shah became the Minister he believed it was not sufficient hence, amended the guidelines of the foundation to include people who became victims during the people’s war.
To operate the foundation, Bharat shah himself is the chairperson, with members including one man and one woman each from the victim’s family of the Madesh movement and people’s war thus, making the foundation inclusive and ensuring meaningful participation and discussions with victims while developing plans and policies favoring victims.
According to Bharat Shah, “more than reparation, it is social recognition and an important form of official acknowledgment for the victims.
Earlier they were called victims but now they are called martyrs. The initiative has not only been recognized legally but also socially and slowly the act will add social relevance to their status”.
On the occasion of Janyuddha Diwas (peoples war day), 4 to 5 victims representing each district of the province were provided 1 lakh each.
Lately, Madeshi Shahid Pratisthan to support the initiative announced monetary support of monthly 21 thousand for victims and other reparative measures.
Madesh Pradesh has become the first province to create separate reparation funds for conflict victims and address their rights. The victims are not just the recipients of benefits but also actors in the process.
Similarly, Lumbini and Karnali Province, too, are not behind when it comes to introducing reparative measures for conflict victims.
A range of reparative measures and symbolic benefits for victims, like medical and psychological services, memorialization, building of parks and status, livelihood funds, vocational training, educational scholarships and support, and health care services are being provided at the local level.
Province 5 had also initiated, reparation implementation and management guideline 2076 suggesting various reparation schemes for victims of the Maoist insurgency.
Different reparation packages were suggested under the guidelines including 6 different types of vocational training and providing associated machinery tools and equipment related to the training.
The provincial government is also initiating on developing a separate and reformative reparation policy for conflict victims.
Hence, it becomes important to develop more formal mechanisms and also initiate an exchange program of lawmakers of different provinces for the possibility of undertaking such initiatives in their respective provinces to support such reparation initiatives and encourage interprovincial coordination and cooperation to address the rights and needs of conflict victims and understand how reparations policies could contribute to addressing the root causes of the conflict and human rights violations.
These reparative measures are just not about providing compensation, monetary support, or symbolic benefits to conflict victims but reflect a genuine unpretentious effort to repair the relationship between the government and victims of conflict.
Such federal initiatives must be diagrammed and charted and taken as the beginning and framework for the national holistic TJ process.
Overly technical and driven by the jurisprudence of criminal justice and international law, the TJ mechanism in Nepal outdoes the need to address and prioritize socio-economic features of conflict and other components of justice such as reparation, reconciliation and memorialization.
Though it won’t be an exaggeration in a general sense to call TJ mechanism and process a national genesis and obligation, nevertheless, the possibility of adopting a more broadened, holistic and federal approach and encompassing provincial or local level processes can be fundamental amidst the condemnation of the effectiveness of the centralized approach to TJ.
In “Rethinking Peace and Justice Institute for Integrated Transition, 2019, a paper written by
Louise Mallinder, professor of law, International human rights law and criminal law and Ron Slye, professor of law, Director of International and Comparative law programs, the authors observe and mention “how international legal and policy frameworks governing states obligations following the commission of international crimes and serious human rights violations provides flexibility to the pursuit of justice which has also been expressed in the Belfast Guidelines on Amnesty and Accountability” and “at the same time most states enjoy discretion in how they remedy human rights violations”.
Hence, a nationally led multilevel approach is required for holistic transitional justice measures. A devolved and federalized direction and the process can further provide a broader and holistic field for national transitional justice efforts and interventions, from a narrow legalistic approach to TJ.
Professed to be a complex phenomenon, the aim of the TJ process should be driven by a holistic socio-economic change.
While looking at some of the devolved TJ approaches across other nations, the famous state-led local process can be seen in Rwanda and Timor- Leste.
In Rwanda the customary Gacaca court system was adopted as a traditional dispute resolution forum, bringing perpetrators and victims face to face and contributing to reconciliation, truth-seeking and healing.
Similarly in the Timor-Leste community reconciliation program, to address the less serious crimes at the grassroots level, the non-judicial mechanism was adopted, offering a restorative TJ model, involving community service, apologies, or reparations.
Furthermore, in Peru, several regional offices were opened up by the truth commission to collect testimonies, conduct investigations as well as carry out sensitization and education efforts.
A decentralized process of hybrid truth-seeking and reparation offering initiative in the form of Amnesty Caravans was set up in Brazil to recognize past state crimes and build democratic transition.
It is also important for all the TJ stakeholders to engage and participate in good faith with a politically complex yet delicate and sensitive process for a transparent and genuine reconciliation in the country and move the TJ process towards its logical conclusion.
The caravans were organized by Amnesty Commission carrying out memory sessions and public hearings and apology/acknowledgment.
In Northern Ireland, following the Belfast Agreement of 1998, a unique set of local programs with decentralized TJ efforts emerged and the agreement draws attention to the legitimacy of a variety of conditional amnesties.
Similarly, the Commission for Truth and Reconciliation of the Democratic Republic of Congo, provided for the formation of provincial and local committees, with the objective of amnesty applications and collecting testimonies and consultations with local stakeholders.
Though it won’t be an exaggeration in a general sense to call TJ mechanism and process a national genesis and obligation, nevertheless, the possibility of adopting a more broadened, holistic and federal approach and encompassing provincial or local level processes can be fundamental amidst the condemnation of the effectiveness of the centralized approach to TJ.
It may further open better and different opportunities to reach out to victims at the microscopic level, whose reparation needs and other rights have been highly neglected.
A federalized TJ approach will not only support to encourage the holistic and victim-centric TJ process but at the same time create an equilibrium with the national initiatives and processes by bridging the gaps.
With an equal focus on four pillars of the TJ process including truth, justice, reparations and guarantee of non-recurrence, Nepal must take a holistic, inclusive and bottom-up direction, while also complementing the national initiatives to accomplish objectives as envisioned in the CPA.
It is also important for all the TJ stakeholders to engage and participate in good faith with a politically complex yet delicate and sensitive process for a transparent and genuine reconciliation in the country and move the TJ process towards its logical conclusion.
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