Hope in the dark
Nepal - Building a generation of hope: towards a transformative justice
By Ram Kumar Bhandari
JANUARY 1, 2021
Nepal’s peace process has been hailed as a success both at home and abroad simply because armed conflict has not resumed. Domestically, political elites laud a successful transition through which they have re-established a polity in which all major political actors, from both sides of the conflict (1996 -2006), have consolidated their positions and ensured a continuation of patronage-based, corruption-driven governance.
On the 14th anniversary of the signing of Nepal’s Comprehensive Peace Agreement (CPA, 2006), it is useful to comment on the extent to which the current condition of both nation and state contradict the ambition of that document. While the political transition appears to be complete, the transformation promised by the CPA is as far away as ever. The CPA envisaged “progressive political, economic and social transformation in the country”, “eliminating the current centralised and unitary form of the state [and] ending discrimination based on class, caste, language, gender, culture, religion and region”, and “ending feudal land ownership”—ambitions that remain very far from today’s reality.
The CPA foresaw an addressing of horizontal inequalities that map on to caste and ethnic difference, precisely the fractures along which dramatic tensions remain and which have failed to be settled by the promulgation of the new constitution.
The failures of the transformative ambitions of the CPA reveal not only the political limitations of the peace process, but represent a lost opportunity to address injustice.
The impact of this failure is that a majority of Nepal’s population continues to be denied the opportunities granted to a minority, because of who they are or where they are. Presenting this failure of the political transition as a justice issue offers new opportunities for trying to advance a transformative agenda. International actors and donors appear to have largely abandoned a broader justice agenda, including social exclusion, in favour of the primacy of advocacy for a narrow agenda of judicial accountability for crimes of the conflict, despite the challenges to this in the current political environment. The government meanwhile is delighted to return to a post-conflict ‘business as usual’ in terms of a development agenda, from which issues of social exclusion are increasingly marginalised, and the continued flow of donor funds that can help sustain the political economy of patronage. The greatest threat of such an approach is that the divisions that drove the conflict remain, and continued challenges to the discriminatory state, as we have seen in the various conflicts, will emerge.
Transitional justice institutions
Some of the few novel institutions envisaged by the peace agreements (CPA) that have been created are the transitional justice commissions, the Truth and Reconciliation Commission (TRC) and the Commission for the Investigation of Enforced Disappeared Persons (CIEDP). Both however have been constrained in their work by a law that fails to meet international standards and the denial by government of the resources they need to operate. Efforts are continuing to amend the law that would ensure that the Commissions are not part of a process guaranteeing impunity, and which would permit significant support from international donors, including both resources and expertise.
Allowing the Commissions to be properly resourced and to work effectively would present the possibility of reconsidering what we mean by justice in transition, and including in their remit the issue of social transformation as a justice issue. While the TRC was created most visibly to address acts of violence of the conflict, its mandate appears to include a remit to investigate structural violence by examining violations of social and economic rights through consideration of “any kind of inhuman acts inconsistent with international human rights or humanitarian law”. This suggests that in addition to truth-telling about acts of violence during the conflict, the truth commission could investigate the rights violations of social exclusion, seeking to tell the history and record the impact of discrimination by caste, ethnicity, geography and gender that were the root causes of conflict. Victims of the conflict have consistently articulated that issues of livelihood and social and economic status are a priority for them.
The Act that created the Commissions sets out the role of the TRC to identify perpetrators, and initiate reconciliation and a reparations process. Given that reparation must include restitution, compensation, rehabilitation, satisfaction and guarantees of non-repetition for victims of such violations, this could provide a route for addressing social, economic and political exclusion. The human rights arguments for such an approach are rooted in guarantees of non-repetition that are arguably the key element of transitional justice as a future oriented approach to the past. All the mechanisms of transitional justice are intended to contribute to ensuring that violations do not reoccur, and this drives reform of institutions linked to violations, most notably the security forces and the government itself.
The root causes
The violations of Nepal’s conflict were driven by social, economic and political marginalisation of sections of society. This is true in both general terms—those who fought for the social transformation felt there was no other way they could change the fact of their exclusion, and in the specific—for example the disappearances in Nepal were embedded in a conflict over political conscience/thoughts.
Nepal seems likely to be condemned to continue to experience social conflict in the future as long as these issues are ignored. While the state seems able to ensure these do not explode again into large-scale violent conflict—as seen in the new movement for change recently—a failure to ensure some movement towards equality ensures a continuing institutionalisation of injustice.
In contrast to victims of acts of violence, the victims of such violations would have to be understood collectively, in terms of communities defined by geography, caste or ethnicity. The TRC would likely have to work with experts and academics who could support them by both reviewing the considerable existing data concerning exclusion and by conducting research among excluded communities. This could ensure an understanding of the nature and impacts of exclusion and community needs and perceptions that could inform a reparative approach. The role of the Commission would be to put the historical facts of such exclusion on record, ensuring that a state institution both records and acknowledges historical exclusion, with the TRC acting as a diagnostic lens on marginalisation, outlining its roots, drivers and consequences, to inform governments that have forgotten the commitments they made in the CPA. One cannot have an illusion that this would automatically lead the government to a radical and progressive approach towards realising the ambition of the CPA concerning exclusion. But it would put on the record the fact of such exclusion and constitute a first state institutional proposal towards addressing it. In the absence of any other apparent pathways to achieving the justice promised to the nation at the end of the conflict, this provides an understanding not only of transitional justice but of a transformative justice in the course of political transition elsewhere.
Hope in despair
Nepal’s transitional justice movement is at high risk of being undermined by the establishment, specifically from top level government bodies and security institutions. To marginalised victims and grassroots activists, these institutions are the root of corruption and impunity. The country has seen a major shift in the political environment from violent conflict to peaceful transformation. However, there has been little change in the structure of the government and society, and invisible change in the security sector regarding those who were directly involved during the armed conflict.
The security institutions were directly involved in some of the conflict’s worst abuses and violations of human rights that resulted in hundreds of enforced disappearances and other serious crimes. Many victims of the conflict and rights activists feel greatly threatened by the authorities. The new government has been repeatedly stressing the need ‘to move forward for stability’. However, the justice process cannot be sacrificed in the name of stability or whatever alliance to defend past crimes. The authorities have clearly failed to address structural and political violence in the protracted political transition over the past decades, and entering a so-called stable political phase without addressing those ‘remains’ of the conflict at the margins may produce a culture of alienation, grievance and revenge in the future.
Contested issues can be resolved through wider and open dialogue. If the government is really serious about providing a solution to the past and not repeating a cycle of violence or revenge in the future, we can develop the best path forward.
We can positively produce a new hope in despair that demands a collective effort, trust and true partnership.
A humanist feminist writer Rebecca Solnit writes:
“Together we are very powerful, and we have a seldom told, seldom remembered history of victories and transformations that can give us confidence that yes, we can change the world because we have many times before. You row forward looking back, and telling this history is part of helping people navigate toward the future. We need a litany, a rosary, a sutra, a mantra, a war chant of our victories. The past is set in daylight, and it can become a torch we can carry into the night that is the future."
Ram is a justice advocate and educator based in Nepal and Portugal. He has over a decade’s experience working with marginalized communities, in particular the families of the disappeared (his father disappeared in 2001), victims and survivors of conflict, ex-combatant youth, ethnic minorities, rural youth, and women’s groups. Ram helped launch a community radio station in Nepal, the Network of Families of the Disappeared (NEFAD), the Committee for Social Justice, and the Conflict Victims Common Platform among other organizations. He has also submitted petitions to the UN Human Rights Committee, the UN Working Group on Enforced or Involuntary Disappearances, and the Nepali Supreme Court. Ram has written extensively on victims' rights, disappearance, transitional justice and nonviolent conflict in English and Nepali. He is a PhD candidate at Nova School of Law in Lisbon.