Nepal: wrong trail, right track

The return to democracy in Nepal after the decade-long civil war has been bumpy. The question of amnesty for crimes committed during the war now faces the new Maoist-led government with a key choice, says Meenakshi Ganguly.
Meenakshi Ganguly
20 September 2011

Nepal now has its fourth prime minister since the constituent-assembly election in April 2008 that followed the abolition of the country’s monarchy and the end of the civil war of 1996-2006. The appointment of Baburam Bhattarai came on 29 August 2011, a day after a vote in the assembly dominated by his Unified Communist Party of Nepal (Maoist) party. Bhattarai, long regarded as the Maoists’ intellectual heavyweight, has promised (as have his predecessors) to redress all the wrongs of the past and deliver Nepal its long-delayed new constitution.

The prospects of delivering this promise seem less bright than they were at the time of the election, in which the Maoists won a decisive victory. For most Nepalis the taste of democracy has been anything but sweet, and a proposed amnesty plan threatens to throw justice further off course.

More than three years of political bickering has left Nepal in limbo. The economy has continued to sink, with chronic power-cuts and a collapsing infrastructure. Most Nepalis are not seeing many tangible benefits from the new political system. While few are calling for a return of the monarchy, many now talk nostalgically about the past, to the shame of the main political parties. The assembly has remained largely dysfunctional, achieving little but the initial declaration of a Republic of Nepal on 28 May 2008.

The first post-election prime minister, Pushpa Kamal Dahal - a Maoist leader known by his nom-de-plume Prachanda - resigned in May 2009 after his unsuccessful attempt to replace the incoming army chief. The chief had been accused of being deeply implicated in human-rights abuses (as had been Maoist military commanders). The Maoists went into opposition, deliberately paralysing both the constituent assembly and the two feeble governments that followed. At the time, one interior minister told Human Rights Watch that he agreed with our recommendations over how to address the human-rights situation in Nepal, but was powerless to do anything until the Maoists returned to government.

Now that they have, Bhattarai and the new government - which took two weeks to form following the resignation of his predecessor Jhalanath Khanal, chairman of Unified Marxist Leninist (UML) party, on 14 August 2011 - have much to do. A priority is to finalise the draft constitution, which is the main reason they were elected in the first place. There has long been agreement over its language on human rights and the separation of powers; but there is still dispute over the shape of a federal state that would recognise the status and rights of Nepal’s various ethnic groups and create a model for the devolution of power to local communities.

Nepalis also expect the new government to face the issue of accountability for the bitter legacy of the decade-long civil war in which 13,000 Nepalis were killed - including widespread extra-judicial killings, torture and ill-treatment, enforced disappearances, and other serious human-rights abuses.

Many of the disappeared remain unaccounted for. The cases of Maina Sunuwar and Arjun Bahadur Lama are typical of the continuing lack of justice. Maina, a 15-year-old, was tortured and killed by army officers, who continue to evade prosecution. Arjun Bahadur Lama was picked up by Maoist combatants, paraded through villages, and never seen again. Most likely he was killed. His captors too are yet to be arrested.

The perils of amnesty

On this issue, the Bhattarai government has made a disastrous start. The four-point agreement between the Maoists and its coalition partners calls for the withdrawal of criminal cases against people affiliated with the Maoist party and other movements (of the Madhesi, Janajati, Tharuhat, Dalit, and Pichadabarga); as well as a general amnesty, including for people who committed serious crimes and human-rights abuses. This would deny victims of violations and their families their fundamental rights, including the right to an effective remedy. It also threatens the principles of judicial independence and the rule of law.

More widely still the proposal to withdraw cases is unacceptable under international law if the amnesties concern crimes such as war crimes, crimes against humanity, enforced disappearances, and torture. This is clear in two respects. First, such amnesties contravene provisions in Article 24 of the United Nations’s updated set of principles for the promotion and protection of human rights through action to combat impunity (2005).

Second, they are incompatible with Nepal’s obligations under the International Covenant on Civil and Political Rights, as affirmed by the UN Human Rights Committee. Moreover, Nepal’s supreme court has affirmed this position in several cases.

Baburam Bhattarai has since clarified that he would withdraw only “politically motivated” cases, but has yet to articulate what that means and how that determination would be made. He and his party have a strong interest in a broad amnesty, since the Maoists - like the army - committed systematic abuses during the war. If the new government believes in the principle of judicial independence already agreed in the draft constitution, it should avoid passing laws affecting the administration of justice. The withdrawal of cases is a matter that should rest with the courts and independent prosecutors, not political parties.

The new government has a chance to break with the past and end Nepal’s long history of impunity. It should make the rule of law a priority and public security the foundation of a sustainable peace. Bhattarai was a senior leader during the Maoist rebellion, which the Maoists claimed was fought to end injustice. Now that he is heading the government, it is time to keep those promises. The Sunuwar and Lama families, and thousands of other victims, deserve no less.

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