Difficult
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As Nepal enters into a new political phase from conflict to compromise and peace, most difficult part now is how to heal the wounds of the conflicts and create complete social harmony and reconciliation in the society. With the mandatory clause of Interim Constitution, the government has proposed a draft bill of Truth and Reconciliation Commission – which stresses on finding out truth with a motive to build the reconciliation. But a new wave of opposition appears pressing to add punitive measures for the violators of human rights. Situated in a very unique geographical location with history of frequent violent rebellions, Nepalese society always survived not on hatred but love and not on vengeance but forgiveness. As pressure is mounting, the government has very limited choices as it can neither withstand the pressure of western countries and right activists nor take the risk of breaking the fragile peace
By KESHAB POUDEL
“We may never forget but we must forgive … to make peace with an enemy, one must work with that enemy and, that enemy becomes your partner,” - South African president Nelson Mandela.
“The simple most important factor which became the driving force towards a totally new dispensation in South Africa was fundamental, a change of heart ….. It was not a sudden change but a process – a process of introspection, soul searching of repentance…” - F.W. De Klerk, former president of South Africa in the book “Struggling To Forgive” written by Brian Frost.
Looking at the development of South Africa, Nepal needs to learn from that kind of attitude to create a situation for lasting peace and stability. A short sighted attitude to rule in the spirit of revenge or punishment will create more trouble in society.
South Africa shows how reconciliation between all the forces has paid off – in terms of its economic prosperity, stability and harmony. However, in Zimbabwe, rebel leader Robert Mugabe ruined the country by taking punitive act against the minority whites under similar commission of 1985.
Truth And Reconciliation
Nepal has a long history of importing the words. Now, the words like impunity, truth and reconciliation, inclusion and exclusion are in the market. Any catchy jargon or political/development phrase gets quick response in Nepal. But the problem is to embrace their true meaning in good faith and not be perverted by simply parroting them.
The words Truth and Reconciliation have broader meaning - balancing between revealing the incidents of human misdeeds and recommending for reconciliation.
Every citizen should have the right to know what happened during the long political conflicts when many people lost their near and dear ones. Hundreds were disappeared, thousands were injured and tens of thousands of population were internally displaced. Such commission can find out the truth. In most cases, it promotes for reconciliation but it also recommends for punishment if it finds gross violation of humanitarian law.
In accordance with the provision of Interim Constitution, the Ministry of Peace and Reconstruction drafted the bill to set up the Truth and Reconciliation Commission. The draft bill says an independent and impartial Commission will be constituted to bring the actual facts to the public by investigating the truth of persons involved in gross violation of human rights and crime against humanity committed by both the government and Maoists during the course of armed conflict between February 13, 1996 and November 21, 2006.
Draft Bill
According to the draft bill, the members of the commission will be appointed on the recommendation of committee constituted with the consensus of the political parties represented in the parliament. The commission is given authority to make reconciliation between the victim and the perpetrator, mutually, if any individual is found guilty while carrying out inquiry and investigation under the act. In the course of making reconciliation, the commission may ask the perpetrator to make an apology with the victim by regretting for his/her past misdeeds.
The commission can also recommend the government for necessary action against such persons who are found guilty. In another provision, the commission is empowered to make recommendation for amnesty even to such person who is found to have committed violation of human rights and crime against humanity in course of abiding by his/ her duties or with the objective of fulfilling political motives. However, the bill denies amnesty to a person involved in acts: any kind of murder committed after taking the victim under control or carried out in an inhumane manner, and cruel torture and rape.
“There are many blunders in the bill. Its consequence in the first place is that it has made politics and crime complementary/synonymous to each other. It has given license to/of committing any kind of gross violation of human rights including killings, murders, rape etc and crime against humanity to any person who performs public duties or is involved in politics,” said lawyer Bhimarjun Acharya.
In the mean time, the European Union and UN Human Rights Commission have already lodged protests on some clauses that seek to give amnesty to such persons who are found to have committed gross violation of human rights or crime against humanity. “Office of High Commission for Human Rights (OHCHR) – Nepal is deeply concerned about provisions which would amnesty the perpetrators of gross human rights violation of international humanitarian law, including extrajudicial execution, torture and disappearances. Amnesty provisions, which prevent prosecution for these offences, are inconsistent with Nepal’s obligations under International Law,” said Sandra Beidas, acting Representative.
European Union also expressed its concern over certain clauses in the draft, which seek to give amnesty to the gross violator of human rights and persons involved in the crime against the humanity.
Constitutional Limits
Despite the pressure from western countries and human rights organizations, the government has very limited options. The article 33 (T) of Interim Constitution obliges the state and the government to constitute Truth and Reconciliation Commission to investigate the truth against individuals who perpetrated the crime against humanity and violators of human rights and create a situation of reconciliation in the society by establishing the Truth and Reconciliation Commission.
“The mandate of the constitution is to investigate the truth about the violator of human rights and perpetrator of crime against humanity in order to create a climate of reconciliation. Where arise the question of punishment on which the article 33 (T) does not say anything about,” Minister for Peace and Reconstruction Ram Chandra Poudel told Spotlight. “Our peace process has a unique nature and it is different than all others in the world. We have settled conflicts on our own and we will manage this on our own.”
Under this clause, the government is mandated only to constitute the commission whose objective is limited to investigate and then establish reconciliation. “On what ground you are talking about punishment and granting or not granting amnesty,” asked a constitutional lawyer.
“Commission which is constituted by the government cannot travel beyond the constitutional limit,” said Minister Poudel. “If we started to dig the wounds, our society will continue to face conflicts. We have also provisions to punish serious violators of international humanitarian laws but our thrust will be for reconciliation.”
South African Model
South Africa’s leaders have shown how they can heal the wounds of past oppression and start the process of reconciliation.
Even former UN Human Rights Commission’s commissioner Marry Robinson in her foreword of the book “Struggling To Forgive” written by Brian Frost, writes, “In his one description of the day, president Mandela wryly noted that the same officer saluting him would, not long ago, have been rushing to arrest him. But, close to the president were prison officer as his guest, a sign that this man would not seek revenge on his prosecutor. Instead he has built his politics on his believe that -to make peace with an enemy one must work with that enemy, and that enemy becomes one’s partner.”
Although many criticize Sough Africa’s Truth and Reconciliation Commission for giving amnesty to all the violators of human rights and failing to compensate the victims, it has produced harmony in South Africa.
The term Truth and Reconciliation first appeared in Nepal’s interim constitution. Rarely anybody in politics has been bothered to formulate this concept into clear and concrete terms. Some experts and human rights activists have pressured politicians and policy makers to follow the example of truth and reconciliation commission of South Africa.
Those experts, however, ignore to explain to the Nepali people what the Commission meant in South Africa and other parts of the world. So far as our government knowledge goes, it means to safeguard the society from the politics of vengeance and reprisals.
“ South Africa is a country which has insignificant minority of white compared to the vast majority of blacks who constitute about 90 percent of the population. After change over to a new system, the white supremacy ended in the power but they were not haunted for the past deeds and misdeeds of that racist government. Not a single officer of any organ of the state was even transferred from one place to another place for their past deeds and not a single person lost the job whether it is in the executive or judiciary. This was not a miracle coming from heaven but was a man made result inspired by the universal dictum of live and let live,” said a political analyst.
“Yes the leadership had a credit for that and Nelson Mandela will be remembered forever but he didn’t claim anything like Asian leaders whether elected or nominated by some historical reasons. He retired from the power but not from Achilles of power. That will be inconceivable to Loktantrik leaders in Nepal whose sole objective has been power and to loose everything for power even at the risk of independence and integrity of nation,” said the analyst.
Conceptual Misunderstanding
It is not very clear yet about the conceptual base of the idea of Truth and Reconciliation. “If it is similar to the South African example, after the change there was no victor. There was neither victor nor victim between the classes of people. In contrast to that, the present change in Nepal has created a class of victors as well as a class of victims,” said the analyst. A witch haunting is going on since the day a class of people emerged as victors.
“ Nepal was at a turning point where its leader who had taken oath of the office of Prime minister and who had option to lead the nation in South African pattern of Truth and Reconciliation. But he was far away from his own august brother B.P. Koirala’s policy of national reconciliation and much far away from the politics of reconciliation adhered by Nelson Mandela in South Africa,” said the analyst.
People talk of Desmond Tutu also but he had neither the power of the state with him nor a wider appeal like that of Mandela who too had not heeded followers with venom or vengeance due to the cruelest atrocities in the past. But he had a strong will to withstand such extremist pressures as he proceeded by his subsequent character that the power was not everything for him. Noble ideas have their importance but there must be upright honest upholder of that. Unfortunately, Nepal does not have leader of that caliber.
Although the common people of this country have an ideal and reconciliatory attitudes among themselves and this multi-ethnic, multi-racial and multi-lingual country never had to go through such violence in the past, this peculiarity of Nepal should have its homegrown and spontaneous leadership which unfortunately has failed to groom up.
Recently some activities have been initiated by the Ministry of Peace and Reconciliation. The senior minister from Nepali Congress has to undergo political metamorphosis to initiate a real peace and reconciliation.
There is a challenge not only between the conflicting interests of the class of victors in power which is known as eight party alliance but this has to embrace persons of that category also who have yet been denounced as reactionaries and revisionists.
Having been trained in a democratic tradition of the party which had heritage of the noble idea of national reconciliation as pronounced by B.P. Koirala, it is not inconceivable to expect Minister Poudel to initiate a true peace and reconciliation.
“If you want to make new Nepal, you must develop certain attitudes of adjustment, accommodations and forgiveness,” said Poudel. “Our peace process has unique character and it was made possible by our own efforts. In this context, no model is applicable in Nepal. I myself suffered a lot, locked up in isolated place but I cannot recommend doing similar things for my enemy. I am not saying that gross human rights violators should be given amnesty.”
Question of Impunity
The concept of impunity is much talked abut theme in seminars and symposiums as well as in the press without elaborating much about its implications. If this concept is strictly applied in Nepal, at least there is nobody in the power at present who could be immune from the guilt of their past. Almost all politicians in this country have faced all kinds of criminal charges against them in their career in the past.
Even prime minister Koirala had countless charges against him in police records as he hijacked a civilian plane. Koirala got amnesty even during controlled regime of Panchayat.
Several leaders of CPN-UML had serious criminal charges against them including cold blooded brutal murders. They, too, enjoyed complete amnesty from court conviction. The recent group of Maoist leaders, too, have serious criminal charges against them and some of them have court convictions also, but they too are enjoying similar favor.
The same group of leaders in the government who had promoted the idea of political revenge, have slowly and gradually realized that for a better understanding between all shades of opinion in the country, political vengeance is not a proper course to follow.
Without considering intricacies of Nepal’s politics, several non-governmental organizations backed by foreign centers are, all the time making propaganda to implement the strict standard of punishment for the past crimes.
“It will take some time for the witch hunting propaganda to subside though some NGOs may lose their lucrative jobs in this regard. So far as the criminalities are concerned, the laws of Nepal have enough provisions to deal with that. Whatever happens in an abnormal political situation of the country, there will be many aspects to take into consideration. In its peculiar geo-political situation, it is very difficult to go into the root of the crimes of political nature and bring that into the court of justice. Courts of Nepal have been following all kinds of principles of fair justice including the presumption of innocence,” said the analyst.
A crime has to be proved beyond reasonable doubt and with all ingredients of motives and intention. “Nepal does not have that facility to dig out all covered deeds of political nature. Even if some cases are picked up and put into trial, that would ultimately prove to be a farcical one inspired by vendetta. The wisest and most practical thing to follow in Nepal at present is to concentrate mainly upon repairing the damages done in the past by all. They who were running the government in the past were using the same administrative machineries and security agencies which the rebels of past as leaders of government at present are using to restore peace and stability in the country,” said the analyst.
One has to understand the concerns expressed by European Union and other western countries because they have strictly law abiding sensitivities from top to the bottom, even the violation of traffic rules which are ignored in South Asian countries, are very strictly dealt with in those countries. They have reached to the highest state of governance whereas Nepal is among those countries which have to live in a handicapped situation. The ultimate goal for a democratic order is the same but journey to that for Nepal will have many ups and downs with unpleasant compromises on the way.
