Eight years after the Comprehensive Peace Accord, the Truth and Reconciliation Commission (TRC) and the Commission on Enforced Disappearances (CED) have now been finally formed, its chair and members appointed. But serious concerns remain as to how they will operate, despite the decision of the Supreme Court
on 26 February, in the light of existing legislation or the lack of it.
Nepal has still not criminalised torture, nor has it defined extra-judicial killings as crimes against humanity
. This places those responsible for torture and killings at an advantage in any legal procedure. There has been no revision of the 1959 Army Act, which required a court of inquiry board and a court martial for any violations of the Act but contained no provisions regarding the obligations of the army to release full and complete details of court-martial proceedings and any judgments arising therefrom.
The Army has already manipulated the provisions calling for army inquiries and courts martial in order to avoid accountability before civilian courts, and the Government of Nepal has made use of this in representations to the British authorities in the last two years to prevent the trial in the UK of Colonel Kumar Lama
. He is currently charged by the Crown Prosecution Service for alleged torture of at least two prisoners during the Maoist insurgency while officer-in-command at the Gorusinghe Barracks on Kapilvastu in 2005.
The Army has also obstructed police investigation into alleged extrajudicial executions and other abuses. In the case of Maina Sunuwar
, the army refused to share the results of the court martial with the police and her family, despite a court directive. The Public Security Act of 1989 Section 22 also provides immunity for any acts committed by State officials in good faith during the course of duty.
There is a real risk that these protective laws in favour of the police and the army will play a significant role in thwarting the truth and reconciliation process
, even if the TRC adopts a robust position as regards its mandate, which must be in question. The most likely outcome is not a confrontation with the Army, government and the Maoists but a continuing delay in addressing specific cases.
The trial of Lieutenant Colonel Lama
, already delayed for two years as a result of efforts by the Government of Nepal to have the matter settled out of court, began eventually on 24 February at the Central Criminal Court (the Old Bailey) before a judge and jury. The opening statements by both the prosecution and the defence were heard, as was my own evidence as an expert witness on the political and security situation during the conflict and on human rights in Nepal. On 18 March, however, the trial was halted and the jury discharged, on the extraordinary grounds that despite strenuous efforts ‘a reliable qualified interpreter could not be found’.
It would seem that this was not so much for Colonel Lama as for the two prosecution witnesses and alleged victims of torture – Janak Raut and Karam Hussein (both Madhesis and one a Muslim) whose command of Nepali was presumably considered insufficient for the usual corps of interpreters. The significance that the victims, although Nepali, speak a different language from the man they accuse of having ordered and overseen their torture has yet to be considered by the court and all concerned.
The two men had already begun to give evidence and Raut, whom the Prosecutor Bobbie Cheema QC had previously explained was a medic who worked in a private health clinic and was not a Maoist, had told the jury that while in detention his hands were tied with rope, he was blindfolded, and his head was repeatedly hit against a concrete wall. He also said he was beaten so hard with a bamboo cane that it snapped in two. On one occasion, Lama allegedly told his men to keep beating Raut otherwise they would be sacked. They were also told to replace the bamboo canes with an iron bar. Raut broke down while giving evidence.
There is to be a court hearing on 10 April at which a new trial date will be set, likely in the summer. Yet another delay in the pursuit of truth and justice, let alone the wider objective of reconciliation.
If those seeking truth, justice and reconciliation in Nepal hope to find inspiration in the archetypical example of South Africa, they must recognise that 20 years on the TRC experience is very mixed. There are no apartheid politicians from the 1980s in jail in South Africa, and Dr Wouter Bason, known as ‘Dr Death’, who ran the apartheid government’s chemical and biological warfare program has continued to practice in Cape Town and only now faces being struck off the medical register, having been found guilty in 2013 of ‘unprofessional conduct’.
Eugene de Kock, commander of a notorious death squad in the 1980s who was sentenced in 1996 to 212 years in jail and two life sentences for 87 crimes and is one of very few apartheid figures to have served time - is now being considered for release and a possible presidential pardon. It is perhaps significant, however, that those calling for his release are not died-in-the-wool right-wing White Afrikaaners but largely the widows of his Black victims and other relatives.
From his cell, Eugene de Kock has tried to atone by volunteering information to families of victims, and has also helped to find the bodies of missing anti-apartheid activists. Twice last year he accompanied investigators to a river bank near Zeerust, north-west of Johannesburg, to locate the shallow grave of Phelemo Ntehelang, a young ANC fighter who was captured, turned into a police informer, beaten with a snooker cue and then smothered, at the instigation of Eugene de Kock.
Perhaps, in the long run, there is room for truth, justice and eventually reconciliation. Let us hope so.
The Gadfly recently spent three weeks in South Africa, where he writes for the monthly magazine, Amandla, and works with the Alternative Information & Development Centre (AIDC).
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