Saturday, 3 June, 2023

Transitional Justice Deadlock

Mukti Rijal


Post-conflict peace process poses delicate and tenuous challenge tackling of which requires deft and dexterous moves and management. In a chat with this writer, Mr. Chris Spies – a renowned peace expert and facilitator from South Africa had made some prudent observations about conducting peace process through to a success, a few years ago. He had mentioned that the peace process in Nepal needed a very wise and conscious handling lest it relapses into renewed and expanded series of conflict. Chris Spies had been an anti-apartheid activist who had worked hands in gloves with the African National Congress (ANC) led by Nelson Mandela.
He had been in Nepal to facilitate the action research workshops on how to mediate and help resolve the disputes in which several stakeholders with opposing ideologies and interests have been involved. In response to a query relating to the prosecution and sentencing of the guilty of the war crimes committed during the conflict, he was forthright to remark that this becomes a very delicate and sensitive issue in the fragile post–conflict situation.
Those listed guilty of heinous crimes both from the side of state and rebels may be liable to prosecution. However those listed of guilty for heinous crimes especially in the case of Nepal particularly from the side of rebels and state can interpret it as being guided and motivated by vindictiveness, vengeance and conspiracy. This becomes an excuse to reignite the new spiral of conflict destroying the gains, achieved in the peace process, according to the South African expert.
In South Africa, Truth and Reconciliation Commission (TRC) led by Desmond Tutu had handled its responsibility successfully by ensuring that the very foundation of democracy, justice and peace was not derailed and jeopardised while achieving the objective of the transitional justice. In Nepal, the Truth and Reconciliation Commission (TRC) was constituted almost five years ago and this important body was headed by Surya Kiran Gurung until a year ago.
The commission has been thrown into critical lame duck position due to absence of the commissioners and officials to lead and carry forward the remaining tasks of the transitional justice. The panel formed to recommend the names for appointment of the chief commissioners and commissioners has been mired in controversy following the resignation of some of members. Moreover, the much sought after amendment of the TRC act has been stalled for some years.
The TRC in Nepal had been formed after eight years of signing of the Comprehensive Peace Agreement which formally halted the armed conflict that had claimed over seventeen thousand lives and destroyed precious public and private assets. Some provisions in the TRC act had been challenged in the Supreme Court contending that the amnesty provision to the perpetrators of heinous crime is against the fundamentals of the transitional justice and criminal liability.
The provision was struck down by the court laying down that this conflicted with the recognised principles of criminal justice. The Supreme Court decision has been
opposed by the political parties in particular charging that the court ruling goes against the fundamental value and spirit of the Comprehensive Peace Agreement. The government has made submission to the court to review its ruling since it would lead to create polarity among the political parties and pose obstacles in the process of concluding the peace process, among others. However, the TRC led by Surya Kiran Gurung had worked with determination, and carried out some basic tasks including receiving formal complaints from the conflict victims.
It is reported that over fifty five thousand complaints have been filed in TRC demanding trial of the perpetrators and seeking justice. Thus TRC led by Surya Kiran Gurung, had done fundamental work to formally invite the victims to file their complaints and thus prepared basic data to take forward the functions of the commission effectively, In fact, the number of those killed in the conflict had not been correctly and officially documented as the data collected by different agencies conflicted each other.
In fact, the then Ministry of Peace and Reconstruction (MOPR) that has been scrapped now following the promulgation of new federal constitution had recorded over seventeen thousand human casualties in the conflict. The Nepal Conflict Report submitted by the UN records 12,686 deaths. Besides, the human rights groups have no specific and accurate researched data of those killed in the conflict. In fact, TRC was able to verify and ascertain the accurate number of the conflict victims including those killed in armed insurgency which stands around seventeen thousand. In fact, it was a difficult task as there were several instances of fake and counterfeit victims to which the commission sorted them out. The task was, according to the former TRC chief, baffling as this has to be carried out after more than a decade of the cessation of armed hostilities.
Moreover, the issue of the re-evaluation of the wounded and amputated in the conflict is also very challenging. The revaluation helps to keep tracking of the present condition of those sustained disabling and serious injuries in the conflict. The conflict victims have several demands grievances and complaints ranging from the reparation, relief and compensation to training and employment. The wounds of the decade long armed conflict would not be healed unless TRC is reconstituted and allowed to work independently and effectively. The present government should not procrastinate to fill up the vacant position in TRC, make necessary and credible legal arrangement and enhance its capacity to accomplish the remaining tasks for the conclusion of peace process and fulfilment of the promise of transitional justice.

(Rijal, PhD, contributes regularly to TRN and writes on contemporary political, economic and governance issues. He can be reached at