NEW DELHI: During the Maoist insurgency and counter-insurgency of 1996 –2006, 13,172 individuals were killed and 1,385 disappeared. These statistics do not take into account those who were raped, maimed, widowed, orphaned and otherwise robbed of their rights.

The Nepali government relied heavily on the Nepali army during the counter-insurgency and atrocities were committed by members on both sides of the conflict with an estimated 62 per cent of all insurgency-related deaths by the end of the war caused by the state. According to the government the peace process is a “success story” however justice has still not been delivered to the majority of conflict victims and the political situation has played a major role in this lack of accountability.

It is believed by Advocacy Forum, Nepal and many Nepalese that the Maoists and Nepali Congress, two of the major political parties who form the current coalition government in Nepal, agreed to form a new government on a number of conditions. One was that the conflict era cases pending against the Maoist cadres would be withdrawn.

Another condition was that the Truth and Reconciliation Commission Act, established to enact the post-conflict transitional justice system, would be revised in favor of the Maoists with wide scope for amnesty provisions. This agreement would mean that many perpetrators of conflict-era injustices would not be held accountable for their acts.

The Nepal Supreme Court on February 26, 2015 rejected the possibility of amnesties being granted for perpetrators of serious human rights abuses committed during the ten year conflict. Despite repeated calls by the human rights community, conflict victims and the international community (including the UN) to amend the TRC Act in compliance with the Supreme Court’s verdict and international best practices on the transitional justice process, the government has failed to do so.

It is not only the reluctance of parliament which hinders the progress of human rights cases, but the organizations and mechanisms which have been set up to record and commence proceedings for conflict victims and their families. The Truth and Reconciliation Commission (TRC) and Commission of Investigation on Enforced Disappeared Persons (CIEDP) have both issued public notices to register complaints pertaining to conflict era cases.

More than 60,000 complaints were received and though both commissions put in place directives and plans for investigating these cases, no consultations have yet been held with stakeholders, including the conflict victims. It appears no effective action has been taken in light of complaints and with no credible mechanisms in place to investigate the complaints filed, there is much doubt as to whether truth and justice will be delivered.

The Colonel Lama case is clear evidence of the failures of the transitional justice system. Colonel Lama was convicted in Nepal of inflicting torture in 2005 but his punishment amounted only to his promotion being suspended for 6 months.

Having escaped effective punishment in Nepal, Lama was arrested in the UK in 2013 under the Criminal Justice Act which defines torture as a ‘universal jurisdiction’, meaning a perpetrator of torture can be tried anywhere regardless of whether that country was involved in the incident. Though the UK Courts did not convict Lama, this case is significant as it demonstrates that high ranking officials may be held accountable for their actions internationally where the Nepali state fails to do so.

The seemingly hopeless situation in relation to conflict era cases has been further engrained by the fact that many of those who are accountable continue to hold positions as political leaders. Even those who have been successfully convicted freely enjoy impunity and use political power for their protection. Bal Krishna Dhungel, a Maoist leader, was convicted of murder by the Supreme Court in 2010 and sentenced to life imprisonment.

However Dhungel did not serve his term and despite the Supreme Court issuing a seven day arrest warrant against him in April 2017, he is still yet to be arrested. He has publically threatened to physically attack the judges who issued the verdict against him as well as the family of the victim. However he has been protected by the Maoist party who have purported that his was a political case that should be dealt with by a transitional justice body.

After 13 years of legal pressure by the conflict victim’s family and human rights organisations, three out of four accused in the Maina Sunwar case have finally been convicted and sentenced to 20 years imprisonment, however Maina Sunwar’s mother has articulated her anxiety that the ruling will be “limited to paper”. She fears that the convicted perpetrators will continue to walk free as Dhungel and so many others have.

This case involved the torture and murder of a 15-year old Maina by the Nepali army in February 2004. The army arrested Maina after her mother spoke out about witnessing the rape and murder of her 18-year old cousin (Reena Rasaili) by army forces.

After army forces could not find her mother, Maina was taken from her home under the accusation of being involved in terrorist activities with her mother. Having undergone hours of water boarding she had an electrical current administered through her body. This brutal torture resulted in her death. Before burying her, army personnel shot her corpse to simulate an attempted escape. In Reena’s case security forces came looking for her brother, a Maoist partisan. When they could not find him, they dragged her outside, raped and beat her over several hours before shooting her in her head, chest and eyes.

[Family members of conflict victims gather at Advocacy Forum offices to discuss their frustrations and the progress of their cases]

In the preamble to the 2015 Nepali Constitution there is a promise of 'an independent, impartial and competent judiciary'. The state’s failure to implement court decisions already demonstrates that this promise will not be met. Issues in the relationships between the systems of state are also evident in the lack of separation between judiciary and executive.

The attempted impeachment of the Chief Justice after the Supreme Court overturned the government's choice for inspector general of the police demonstrates this. As the judiciary asserts its independence from the political sphere, the executive attempts to exact its power over the judiciary by interfering when its political agendas are inhibited.

Internal relationships within the political sphere also contribute to the culture of impunity as the continuous stalemate between party leaders has resulted in damaged efforts to implement human rights policies. The Constituent Assembly elected in 2008 was dissolved in 2012 without delivering a new constitution and this political instability is still prevalent today with changes in government in 2016 resulting in the ninth government being formed in the last ten years.

The first local elections of the last twenty years are to be held this year. This is clearly a momentous event in Nepal’s political career, especially at the local level. However how do those who have been most failed by the political systems of the last twenty years – who have unsuccessfully been seeking justice for over a decade - feel about these elections?

Nepalis will be going to the ballot box without the support of the Madhesi (an ethnic group from the Terai region of Nepal), who are still protesting at their under-representation in the Constitution Government. The Madhesi community has been threatening to boycott the local polls for this election unless the constitution is rewritten. This has in turn forced the government to split the vote into 2 phases with a month in between. The first election was held on May 14, 2017 and the 4 provinces which are considered to be the potential flashpoints for violence in the upcoming elections will have their elections on June 28, 2017.

These local elections present not only the possibility of disruption if the demands of a political settlement with these Madhesi parties are not met, but also the risk of poll rigging, ballot capturing, riots and threats to the general public, polling personnel, candidates, social volunteers and political party workers. Such threats are not only from the politically active groups, but from security forces themselves through disproportionate responses to civil unrest. In March this year security forces killed at least three and injured dozens through the unlawful and arbitrary use of lethal force in the Saptari district of Terai.

The government has decided that the Nepal Army will be mobilized and an anticipated 226,000 security personnel will be deployed, with a focus on the Terai region, to ensure a peaceful election process. Ostensibly this should increase security over the coming period. However this in fact poses a risk particularly to conflict victims who have filed cases against members of the security forces.

It is possible that members of the security forces who are undergoing trial for acts committed during the conflict may use this as an opportunity to take revenge (by threats, intimidation or violence) on victims who have sought justice. With the attention of police and army forces focused on the local elections, it is possible that the risk of such individual incidences of retaliation will be overlooked.

Devi Sunwar (Maina Sunwar’s mother) articulated her personal anxiety over army mobilisation: “it created a risk for us. People were fearful, especially for the conflict victims. The security forces are our past perpetrators”. Bikash Basnet (Program Manager at Advocacy Forum) added that while in conversation with victims, he felt that their sense of safety and security had diminished. However he stated: “this might be because of the trauma imprinted on their minds which is yet to be healed”.

Despite the apprehension, the first set of elections went by largely peacefully with a reported turnout of 71 per cent, including 115 year old Batuli Lamichhane at Matra Village in Nuwakot district, Nepal’s oldest participant.

There was some sporadic election-related violence reported in certain districts including Dolakha, where one person was killed after police opened fire to control a mob that tried to disrupt the election. Polling was postponed in 3 centres (Dolakha, Kalikot, Kavre) by the Election Commission due to violence breaking out and fresh dates for re-polling are yet to be set. In Bharatpur there has been a writ petition filed at the Supreme Court against the Election Commissions decision to conduct a re-polling after 90 ballots were allegedly torn up by the Maoist Party. The petitioners state that if this decision is not annulled then criminal activities will increase in future elections as this sets the precedence that if any votes are destroyed, a re-polling will be announced.

Whilst the May 14 elections presented only minor issues in terms of security, the June 28 elections merit more concern as the Terai region is more politically volatile. Whilst certain organizations, such as Advocacy Forum, are making efforts to relocate those particularly at risk (for example the victim of the Colonel Lama case), there are many others for whom this protection cannot be provided.

The June election date has already been changed twice to accommodate the Ratriya Janata Party, the newly united party of six Madhes-based forces. This date falls bang in the middle of Nepal’s monsoon season which is an added challenge to the second phase elections as since February 18, 1959, no polls have ever been held in the rainy season.

The Results so Far and What They Mean for Conflict Victims

The election results so far have shown that both past perpetrators and conflict victims have been elected as local representatives. This has obviously been met with mixed feelings in local communities. Advocacy Forum has spoken to a number of conflict victims in the aftermath of this first set of results. Reacting to the appointment of perpetrators as local representatives, Gita Rasaili (Reena Rasaili’s sister) said: “we have psychological terror. Perpetrators regained their power at a local level through this local election”. It is clear that the immediate threat of the mobilisation of security forces has been extended to an ongoing threat as perpetrators win local seats.

When asked if this election provided them with an opportunity for their voices to be heard, the conflict victims interviewed had differing opinions. Devi Sunwar (Maina Sunwar’s mother) criticized the fact that perpetrators have not been held accountable in their political careers: “past perpetrators should not have been given the chance by political parties to be locally elected. They are politically protected, which is unjust”.

Gita Rasaili was more concerned with the power these elected representatives would hold but she also sees these elections as an opportunity: “the local representative holds a powerful position and I am personally not optimistic. However, this election is a platform to localize our issues. We need to seize this opportunity”. Suman Adhikari, the chairperson of Common Victims Common Platform (CVCP), defined these local issues as: “education, health, acknowledgment, recognition at a local level”.

Devi Sunwar shared Gita Rasaili’s and Adhikari’s opinions that issues need to be further localized, however in relation to human rights issues thinks this opportunity has come too little too late. In relation to the culture of impunity and current lack of accountability she stated: “local representatives have limited scope as my case is already recognized at a national and international level. They might work for the perpetrators rather than working for victims”. Adhikari confirmed this by pointing out that human rights weren’t prioritized during these local elections: “the issue of development dominated other issues i.e. the rule of law, human rights, corruption, good governance which had to come together”.

Conflict victims are looking for more commitment from the new government and political parties. An extension of the terms of the CIEDP and TRC may give these victims some hope as to justice being finally delivered. However, many are concerned that a simple extension of terms is not enough in terms of progress and that members of the TRC are too overly concerned with their individual political disputes to do an effective job, whether the terms are extended or not.

Suman Adhikari clearly holds a heavy feeling of skepticism in relation to the local elections and the government as a whole: regardless of who is in power “it is crystal clear that the government is not committed to resolving past human rights violations. The transitional justice commissions are state controlled and no substantive initiative has been taken by the government to make these mechanisms independent, credible, acceptable, resourceful”.

Devi Sunwar shared in this pessimistic long-term view stating that “the recent political developments are just foul play and the country is heading towards further confrontation”. The one point that all our sources were united on was the potential of these local elections to give a voice to local issues, even if for human rights issues greater and more systematic change is required.