Opinion (Spotlight Weekly)

Building The Capacity Of Nepal Human Rights Commission

By BIPIN ADHIKARI

A project aimed at building the capacity of Nepal Human Rights Commission (NHRC) is about to be launched in Kathmandu as a collective effort between the United Nations Development Program (UNDP) and His Majesty's. Their finding that there are some fundamental problems affecting the NHRC that need to be addressed if this statutory body is to be effective and win the confidence of the people is indeed timely.

Created as a statutory body, the commission is an independent organisation with a wide range of responsibilities. These responsibilities have become more challenging with the gradual decline in the quality of politics and normal functioning of the national juridical order. The components of this order are a police system, a prosecution system and a judicial system. These interrelated bodies are the primary agents for the protection of the people from violations of human rights and fundamental freedoms. This is a difficult time for us all.

Where impunity prevails due to an ineffective juridical framework, a national human rights institution like the NHRC trying to act as a substitute and provide redress is engaging in an impossible task. It is also doing the flawed juridical system a favor, by saving it from domestic and international criticism. Thus instead of dealing with the problems of the juridical system, attention is misdirected toward the national human rights institution - which even if functioning perfectly could not undertake the role of a proper juridical system. Under any circumstances, when a juridical system is fundamentally flawed an institution like the NHRC cannot do its work effectively, except in peripheral areas.

The efforts of the NHRC in such cases should be directed toward drawing the attention of the state to that condition of the legal system with a view to pressuring it toward reform. Nepal has ratified at least 16 international conventions in the area of human rights and liberties. It has also shown its commitment to various soft norms inherent in different body of principles and declarations including the Universal Declaration of Human Rights of 1948. We all have realized that the process of implementation of these international standards has been very slow. The Constitution of 1990 creates much space for this process. The legal system however lags behind in using this space for the consolidation of the human rights regime. Moreover, the government never devised an official policy to implement these international standards as a matter of priority.

Many of the existing laws and institutions need to be amended in the light of Nepal's international commitments. Some new laws and institutions must replace the laws which exist, but which cannot be given continuity even after some sort of revision. In some cases, there is an urgency of complete overhauling. We have more pervasive issues regarding bonded labors, women's rights, rights of ethnic minorities, Hindu castes, deprived children and people with graphical disadvantages. The NHRC needs to inform us of where we are in the process of developing the future program, and putting in place arrangements for further efforts.

With the Maoist insurgency that started about six years ago, and more particularly with the imposition of the national emergency, deviations in the law enforcement process have become the rule. Many constitutional safeguards for ensuring liberty have been indiscriminately violated. We also have seen various human rights groups asking the government to protect persons subjected to detention or imprisonment. Concerns have been expressed that basic principles for the protection of all persons under any form of detention or imprisonment or the use of firearms have been violated.

Torture and other cruel, inhuman or degrading treatments to the detainees have increased. Whatever code of conduct of law enforcement officials had been in place since long have been threatened. There is a call to improve facilities for urgent communications by victims. We also have realized that the capacity of the NHRC needs to be upgraded for dealing with violations within a short time, and thus protect the rights of people-particularly from encounter or extra-judicial killings, disappearances and torture. Where criminal investigations fail to adequately address large-scale concerns such as extrajudicial killings, disappearances and torture, the commission must expose the incapacity of the juridical system to deal with these violations and make the public aware of its recommendations for remedies. The case of Krishna Sen is a fresh example to show how fragile the legal system has become at the hands of security forces.

In the changed context, many people including UNDP professionals, around the world admit that poverty is the result of lack of human rights for a long time. The NHRC should be able to make the government respond in appropriate ways to this popular realization. Many social evils, including cross-border trafficking, gender and caste discrimination, and so on are direct offshoot of poverty and other economic factors. The commission should thus realize how important it is for it to upgrade its quality as an advocate.

If instead of doing this, the commission tries to undertake the functions normally reserved for institutions of administration of justice the scope of its activities will soon be so vast as to completely exhaust its resources and power. The commission is not a law enforcement agency, nor is it a part of the judiciary. Therefore, the very idea of it taking over the functions of the police, government attorneys, and court institutions conflicts with the NHRC's actual function as a monitoring body over the system of administration of justice. If by contrast the monitoring function is properly developed and carried out the institution can do an enormous service in promoting and protecting human rights.The relationship with the media, also known as the fourth estate, is crucial to achieving human rights goals. The NHRC can serve a great educational function if communication facilities available to the state- such as newspapers, radio and television-are used creatively and effectively for this purpose.

To that end, it should develop its own media and education units. Human rights education in schools and higher education institutions can also be improved through the intervention of the commission.A project aimed at building the capacity of the NHRC by implication contributes further to its ability to create more 'irritations' to the governmental bodies. Therefore, a sense of partnership needs to be developed with the government from the very beginning. The role of non-partisan civic organizations has always been appreciated around the world. In the specific case of Nepal, the donors have also sometime facilitated legal reform process making it an issue in their dealings with the government. Thus, the need to work closely with the international donors community to achieve these long-term goals is beyond question.

Some discussions are necessary on what kind of management approach should be adopted for programs like the present capacity development project. One has to begin with the end in mind. Institutions, values, norms and procedures grow step by step. There is never a miracle in this process. However, if the process is steady, and represents the interests of all and nobody is left out, it becomes sustainable as well. Normally, in the human rights field, this is what is called institutionalization, and is deemed a successful course most of the time.

The notion of a process where nobody is left out is also called participatory approach. Any reform or capacity development project in the area of human rights in Nepal must move ahead taking NGOs/civil societies and donor organizations on the one hand and the governmental bodies on the other. Their involvement is necessary for proper planning and development of strategies of various projects. For example, if we want to embark on developing alternative sentencing and prison management system, all the stakeholders must be brought together. The degree of their involvement may, however, depend on the nature and demand of the project.

To develop crime prevention, alternative sentencing and training strategies, for example, any proposed project will need to assess NGO/donor program (what, where, approaches) and their effectiveness. Some donors might be willing to participate in this review. It is practical to suggest NGOs to be involved in the training managers group in order to maximize training resources and to further develop training for police, courts and prisons. In this case, the question to be answered is: If† NGOs are willing to collaborate in the proposed activities, what kinds of resources might need to be made available under the project? What is the most appropriate mechanism for contracting arrangements? This is, however, something that can be answered only after thorough discussions.

To effectively manage and coordinate project activities and resources in partnership with stakeholders, including the provision of timely and relevant management information on project performance, the process must be assisted by supporting integration of project activities with the work or other stakeholders and by promoting capacity building within targeted local agencies, and ensuring accountability. As such, in the human rights perspective, the management approach might be to (a) establish project management capacity (staff, office, operational resources) (b) form project coordination arrangements, roles and responsibilities with stakeholders (c) re-establish project coordination meetings (d) establish monitoring, review and reporting systems, including performance indicators (e) devise and implement communication strategy, and (f) prepare annual plans on a rolling basis (covering each calendar year) (manage project resources effectively to deliver project supported outputs which contribute to development outcomes.

The principles should be (a) work in partnership with stakeholders to support local initiatives and capacity (b) support change management process allow project to respond to emerging needs and priorities (c) broaden the stakeholder base and (d) give priority to effective information management and communication with stakeholders. In an ideal case, stakeholders may mean police, courts and prisons, or NGOs, donors, other governmental departments, local governmental units, and even benevolent business groups.

(Adhikari is a lawyer. This article is based on views he shared with some senior professionals of UNDP Nepal)