NEPAL: Commitments to accountability and justice continue to be jeopardized in 2011 

A Statement by the Asian Human Rights Commission on the Occasion of the International Human Rights Day, December 10, 2011

On the occasion of the 63rd Human Rights Day, the Asian Human Rights Commission is releasing its annual report on the state of human rights protection in Nepal through 2011. The report is available here.

Given the continuity of challenges presented in this report, the AHRC wishes to take the opportunity of its publishing to restate the crucial importance of a continuous OHCHR presence in the country to ensure that the issues of accountability and justice are not sacrificed to political considerations. We therefore urge the government to extend the OHCHR’s mandate to ensure its capacity to monitor the human rights situation in Nepal until the completion of the transition process.

2011 began with the Government of Nepal committing before the international community to uphold the rule of law and defend the human rights of its people. During the United Nations Human Rights Council’s Universal Periodic Review assessment of human rights in Nepal, held in late January 2011, the government claimed to have a zero-tolerance policy concerning impunity, pledged to investigate and prosecute all allegations of human rights violations, and to provide equal access to justice for all its citizens, without distinction. It also committed to eradicate social gender-based violence and caste-based discrimination from the country’s society.

For several years, the Asian Human Rights Commission (AHRC) has been closely following the state of human rights in Nepal and the struggle of the Nepalese people to develop a democratic system that protects rights through an effective rule of law framework. The gains achieved in this several-decade long struggle are fragile and remain under threat. In 2011 the extreme politicization of all aspects of civilian life, political instability, high levels of insecurity, impotent institutions – including a decaying policing system and a toothless judiciary – have all contributed to the inability of the State to make significant progress concerning the protection of human rights. At the time of writing of this report, although some progress was achieved in the peace process, most pressing issues relating to the democratization of the country and to the protection of human rights remained in abeyance. The Constitution, which has been in the process of being drafted since 2008, has still not been enacted, and transitional justice remains an abstract concept. To be able to uphold the law as a shield against abuses of power protecting the rights of all the Nepalese equally, deep structural reforms of State institutions will be required. Until these issues are settled, State institutions will not be sufficiently strengthened to ensure that any gains in the protection of human rights will be achieved and be irreversible.

Of particular concern to the AHRC in 2011, have been the repeated and calculated attempts to ensure that commitments concerning accountability for past human rights violations are fulfilled. The end of the political blockade brought a perceptible change in the attitude of the government toward past human rights cases, switching from ineptness and inaction to actively exploiting all the channels at their disposal to prevent prosecutions. The government indicated that it was planning to withdraw human rights cases dating from the conflict en masse, sought amnesty for a lawmaker convicted of murder, and alleged perpetrators of human rights violations were nominated as Ministers within the government. In addition, the criminal justice system proved unable to pursue accountability. Orders by the Supreme Court to investigate human rights violations remained unfulfilled, while the police neglected or proved unable to conduct thorough investigations into past allegations.

The following report looks into the mechanisms underpinning the continuing impunity for past human rights violations and addresses the current human rights violations that have taken place throughout the year. The reign of impunity has continued in 2011, as the State’s apparent inability and unwillingness to provide redress to victims of past human rights violations opens the door to further abuses. Perpetrators are encouraged by a situation in which those that violate fundamental rights do not face any sanctions.

Reports of torture were on the rise in 2011 and allegations of the extra-legal use of violence by the security forces have typically not been investigated. The absence of any effective checks and balances that would be used to hold accountable police officers who do not fulfil their duties, means that Nepal’s citizens do not benefit equally from the protection of the law. Victims of gender-based or caste-based violence often find themselves without access to any legal remedies.

The adoption of legislation criminalizing caste-based discrimination was a great achievement in 2011 for the Dalit community, who had long been advocating for this legislation. However, this legislation runs the risk of being rendered meaningless, if no tangible rejuvenation of the justice system takes place.

In addition, in light of the findings presented in the report, the AHRC urges the government of Nepal to:

  • Uphold its commitments to accountability and justice by ensuring the investigation and prosecution of all conflict-related human rights violations. It must order the police to register and investigate promptly all such cases of human rights violations and clearly and publicly state that such cases fall under the jurisdiction of the regular criminal justice system.
  • Adopt without delay the bills establishing the Truth and Reconciliation Commission and a Commission of Investigation on Disappearances, and guarantee their independence, while prohibiting amnesties for human rights violations. It must ensure the right to truth for victims ensure effective prosecutions of all alleged perpetrators, in order to ensure lasting peace and reconciliation in society.
  • Commit to refrain from any attempt to provide amnesties or withdraw cases pertaining to human rights violations
  • Take all necessary steps to strengthen the criminal justice system, in particular to ensure that all court orders are binding to all, and are implemented without undue delays.
  • Initiate impartial investigations into all allegations of extrajudicial killings  and bring to justice the alleged perpetrators
  • Adopt legislation criminalizing torture without further delay. Actively involve civil society in all stages of the discussion concerning the law, and ensure that its legal provisions are in line with internationally accepted human rights norms and standards. Enhance the current investigation mechanisms to ensure their independence and effectiveness. Establish a police service commission, as per the recommendations formulated to Nepal during the UPR.
  • Give clear instructions to the police to register and investigate all complaints of threats or harassment against human rights defenders and journalists, and develop the police’s protection capacity, while speeding the process of the adoption of a special programme to protect HRDs and journalists. Involve civil society in all stages of the development of such a programme.
  • Closely monitor the implementation of the law criminalizing caste-based discrimination and untouchability. Develop Dalit Watch Centres in all of Nepal’s regions.