“Now Is a Time to Lead:” Advancing Transitional Justice Initiatives through Local Governments in Nepal

7/13/2018

Elena Naughton and Kelen Meregali

This report aims to help local governments, victims’ groups, and other stakeholders in Nepal to understand the scope of and potential inherent in local governmental powers and to identify what local governments can do to design and implement initiatives that support victims of conflict. It concludes by offering detailed recommendations for local governments that are considering measures of reparation for human rights victims and other transitional justice initiatives.

Download the full report in English here.

Executive Summary

Recently, Nepal implemented some significant long-awaited changes to its structure of government that present new opportunities for addressing the justice needs of conflict victims. On September 20, 2015, a new Constitution came into effect, replacing the interim Constitution promulgated in 2007, soon after the conflict ended. That constitution introduced a new federal structure of government that, among other things, vests local governments with 22 powers and areas of responsibility over which they have broad authority. Many of these powers can be exercised to establish policies and programs at the local level for fulfilling victims’ rights to truth, justice, reparation, and acknowledgment for the human rights abuses victims suffered during the war.

Although local initiatives are not a complete substitute for a coherent national policy, these powers offer great potential for implementing measures to address promptly and directly a full spectrum of victims’ reparative needs, from the symbolic to the material. They encompass food, housing, employment and job creation, medical care, education, legal services, help obtaining official documentation, memorialization initiatives and other forms of public recognition, awareness-raising activities, and measures aimed at preventing the recurrence of human rights abuses. Many of these measures would fulfill fundamental rights guaranteed under the Constitution to all Nepal’s citizens, and additional rights secured there for vulnerable populations (such as the elderly, disabled, single women, those marginalized or indigent, and children). If designed to be reparative in nature, they could also fulfill victims’ rights to an effective remedy, including the right to “adequate, effective and prompt reparation,” as articulated by the UN General Assembly in its Basic Principles and Guidelines on the Right to Remedy and Reparation for Victims of Gross Violations of Human Rights Law and Serious Violations of International Humanitarian Law (UN Basic Guidelines). 

This report aims to help local governments, victims’ groups, and other stakeholders to understand the scope and potential inherent in these powers and to identify what local governments and others can do to design and implement initiatives that support victims of conflict and that fulfill this potential. To this end, this report looks closely at the provisions of the 2015 Constitution and the Local Government Operationalization Act 2074 BS (2017 AD). It also considers the essential role local governments can play in crafting and coordinating responses alongside national-level institutions that are advancing transitional justice processes, such as the Truth and Reconciliation Commission (TRC), the Commission on Investigation of Enforced Disappearance of Persons (CIEDP), and the National Human Rights Commission (NHRC). Additional consideration is given to the provisions of the Enforced Disappearances Enquiry, Truth and Reconciliation Commission Act (the TRC Act), 2071 (2014), and the requirements established therein for local government cooperation and engagement with ongoing transitional justice mechanisms.

With offices within or near victim communities, local governments in Nepal are well situated to tailor initiatives to address victims’ particular needs. Coming as they do from out of the communities they serve, most local officials, including many who are victims themselves, are familiar with realities on the ground and nuances in the economy and in community practices that may affect whether a policy will benefit or might unintentionally harm victims, or could even exacerbate tensions within families or between neighbors. Many local officials speak and read the local languages and dialects victims speak and read. Also, many are privy to crucial differences among survivors’ experiences of war, as well as their current life situations. With access to information about existing services and knowledge of what is required to get things done locally, local governments offer real potential advantages for understanding and effectively responding to victims’ needs and for building the kinds of relationships needed to help bridge divides not only between and among victim populations, but also between victims and nonvictim communities in Nepal.

With five-year terms in office (and eligibility for an additional term), local officials at each of the different levels of local government (e.g., municipal, village, and ward) should be able to plan and undertake not only short-term or targeted projects that respond to victims’ urgent needs but also long-term, subsistence-based projects that can provide victims with the benefits they need to create a more stable life for years to come.

Many of these initiatives can begin while national policymakers in Kathmandu continue working on a comprehensive approach to transitional justice. National and local dimensions of transitional justice are not mutually exclusive; there is no reason local efforts cannot be designed in a way that meet victims’ needs for redress, in particular for the most vulnerable populations, while still meeting other government obligations, including those at the central and provincial levels. In fact, local governments working effectively now might relieve some of the pressures on the central government, by meeting victims most acute needs and collecting data and testing policies that could be implemented later at the national level.

To do so, all levels of government across the federal structure will need to coordinate, communicate, and abide by the essential elements of good governance, including preventing corruption. Victim initiatives must be designed in such a way as to “do no harm” and to ensure that victims are treated fairly and with respect and dignity. As Nepal has learned from its experience implementing the Interim Relief Program (IRP)—which was hampered by significant shortfalls in design and implementation (including insufficient funding, a lack of coordination among key stakeholders, the exclusion of some categories of victims and the unequal treatment of others, and the politicization of application processes and eligibility determinations)—it is essential to consult with victims, to be sensitive to their needs and vulnerabilities, to acknowledge the violations they experienced, and to monitor and evaluate implementation to prevent discrimination. 

In all decisions and procedures, the safety, well-being, and dignity of victims must be considered and given priority. The victims will be paying attention. As one victim forcefully made the point, “We raise our voices. We do not give up. And we will not sit by in silence…I say to the government—listen to our voices, consider our demands.

The challenges local governments will inevitably face are innumerable. At each stage of the process, local governments will confront significant hurdles as they exercise their powers to design, plan, and eventually implement programs benefiting their constituents, including Nepal’s many conflict victims. This report highlights some of these major challenges based on feedback obtained during consultations conducted in preparation of this report in some of the districts where conflict victims live. Immediate steps should be taken to monitor, address, and mitigate the following challenges:

  • Need for greater clarity on the intersection between local powers and existing transitional justice mechanisms, including the TRC and CIEDP.
  • Lack of disaggregated data about individual conflict victims, their needs, socioeconomic status, and representation in state institutions. To address this gap in information, assessments should be conducted of victims’ basic needs to help governments set priorities over the short, medium, and long term. 
  • Lack of guidance from the central government and insufficient time for internal discussions and for reviewing, voting upon, and implementing policies and laws, including budget proposals and allocations. 
  • Challenges meeting victims’ high expectations and working with victims from both sides. 
  • Need for capacity building by stakeholders across sectors so they can better understand their role in addressing victims’ needs and in advancing transitional justice issues.
  • Avoiding politicization of local processes to favor one side of the conflict over the other. 
  • Assessing available capacity for meeting victims’ needs for services, including medical services.
  • Establishing effective outreach mechanisms for communicating with victims so they can seek assistance and learn about benefits once available.
  • Determining eligibility of victims for benefits in the absence of documentation.
  • Ensuring local initiatives are meaningful and have a reparative impact by distinguishing development objectives from reparative impact and by incorporating an unequivocal message that society recognizes that violations occurred and that victims suffered consequences as a result. Otherwise, the underlying reparative intent and message can be lost.
  • Ensuring that gender-sensitive approaches are taken to help improve opportunities for women to serve in government and in leadership roles in local organizations.

These challenges are likely to be made somewhat harder and confusing by parallel operations going on at the TRC and the CIEDP, both of which are tasked with fulfilling victims’ rights to truth, justice, reparations, and acknowledgment. At the time of the drafting of this report, the tenures of the TRC and the CIEDP had been extended until February 2019; the commissions had not concluded their operations or issued recommendations on reparations, which could form the basis for a future comprehensive reparations policy; and major amendments to the TRC Act were under consideration, which could provide further clarity about the form reparations will take and what categories of victims will be eligible to participate and how. 

Although the commissions and the associated policy debates could eventually affect some policy choices that local governments make, the commissions will ultimately be dissolved, and their recommendations taken up by ministries and agents of the government, including local government officials who are likely to be asked to assist with implementation. In the meantime, local governments continue to operate and can exercise their constitutionally granted powers to advance the rights of their constituents, including victims of conflict. Many local governments are already staffed and operating, with many designing and implementing initiatives that address the needs of victims. 

In fact, there is already much underway that is positive. ICTJ and JuRI-Nepal separately conducted a series of meetings and interviews to find out about those initiatives already in process to address victims’ reparative needs in Kathmandu and in conflict-affected districts, namely Kavre, Bardiya, Banke, Kanchanpur, Kailali, and Chitwan. Those interviews provide some useful insights into the approaches available to local governments for developing (and perhaps piloting) future reparations policies that address victims’ needs. Among the approaches worth noting are the following:

  • Including victim-focused programs and activities within municipal Policy and Action Plans;
  • Forming municipal-level conflict victim committees composed of victims from both sides of the conflict;
  • Raising awareness about victims’ needs, demands, and concerns; 
  • Making government offices more victim-friendly;
  • Undertaking memorialization initiatives with local government funding, including public infrastructure projects that incorporate symbolic reparations (e.g., naming roads after the disappeared);
  • Including victims as a priority group in education and health policies under development.

This report concludes by offering detailed recommendations for local governments that are considering measures of reparation for human rights victims and other transitional justice initiatives, including for promoting reconciliation and projects of memory. Recommendations are also offered to the national government and civil society for facilitating these measures and ensuring monitoring and consistency during implementation. These recommendations include the following: 

For local governments 

  1. Conduct a comprehensive assessment of conflict victims’ needs, disabilities, and experiences of harm, and create a database (“registry”) of victims.
  2. Develop policies and plans for providing reparations as a right to victims, in consultation with other local governments and officials at the provincial and national levels.
  3. Ensure meaningful participation and consultation with conflict victims when developing programs and policies and formulating local laws that have implications for victims.
  4. Earmark funds for victim reparation measures, perhaps by creating a separate budget heading for “conflict victims” and allocating monies annually to support initiatives that directly benefit victims and promote a culture of peace, justice, reconciliation, and human rights.
  5. Establish reparative measures, in consultation with relevant stakeholders including victims’ groups in their respective jurisdiction, that provide vulnerable victims in urgent need of reparations with immediate assistance and include longer-term and more comprehensive measures. These measures could include the following:

    a) Promoting cooperatives created and operated by conflict victims 

    b) Mobilizing and developing local cooperatives to benefit conflict victims

    c) Adopting measures to encourage entrepreneurship, self-employment initiatives, and income-generation activities involving conflict victims

    ​d) Establishing microcredit facilities for conflict victims 

    e) Implementing measures to facilitate access to education for conflict victims and their children, including scholarships, education, and vocational training opportunities

    f) Opening, reestablishing, or upgrading schools and health care centers to benefit conflict-affected populations

    g) Naming schools, roads, and local infrastructure in honor of the victims of human rights violations

    h) Prioritizing special incentives for victims engaged, or starting projects, in the agriculture and livestock sectors

    i) Devising and implementing health-related measures for victims, including psychosocial counseling, emotional support, free health checkups and treatments, free or low-cost medications, and nutritional support

    j) Devising and implementing social protection measures (e.g., care centers and in-home assistance) for those victims who are living in extreme poverty and who are disabled, elderly, or helpless

    k) Ensuring that government, including at the provincial and national level, develop processes that allow victims to access reparative measures easily and promptly

    l) Designing and implementing measures to promote a culture of peace, social reconciliation, harmony, and cohesion, including in relation to sports, arts, and literature

  6. Ensure that nondiscrimination and no harm principles for victims are fully observed when formulating and implementing local laws, policies, and programs, and delivering services.
  7. Consider creating a special committee or mechanism or entrusting the local judicial committee with the responsibility to look after local issues having direct or indirect implications for human rights, transitional justice, and peace.
  8. Support transitional justice processes, including by sharing information and providing recommendations to the TRC and CIEDP.
  9. Conduct oversight, monitoring, evaluations, and periodic assessments of justice-related processes, consistent with the provisions of the Local Government Operationalization Act 2074 BS (2017).

For the national government

  1. Amend laws to ensure consistency with the Constitution.
  2. Amend transitional justice legislation to explicitly empower the TRC and CIEDP to make recommendations to local governments for designing and implementing reparations, creating a conducive environment for victims, protecting witnesses and the confidentiality of victim information, facilitating access to transitional justice processes by conflict victims, promoting reconciliation, and introducing vetting and institutional reform measures.
  3. Conduct consultations on any proposed amendments to the TRC Act 2014 and trainings on those amendments when they are finalized. 
  4. Provide guidance and develop capacity  of local governments on justice issues, including Mayors, Deputy Mayors, Ward Chairs, and Ward Members.
  5. Improve the capacity of government bodies at all levels to conduct oversight and prevent corruption in the dispersal of reparations benefits and in the implementation of reparations policies.

For civil society

  1. Monitor local government initiatives on behalf of conflict victims. Create watchdog groups to monitor implementation of reparations for victims, keep victims’ organizations abreast of developments, and take action in support of implementation in the event nothing is done.
  2. Bar associations should provide free legal support to conflict victims
  3.  

Date published: 
7/13/2018
Type: