Walk The Talk
The new Constitution of Nepal, written in 2015, significantly widened the scope of human rights protections—including through strengthening the guarantee of economic, social and cultural rights (ESCR). Nepal is also a state party to many key human rights treaties including the International Covenant on Civil on Political Rights and the Covenant of Economic Social and Cultural Rights.
When it came to human rights, the citizens in Nepal had two major expectations from the government. The first was ensuring a closure from past human rights violations under the framework of human rights. And the second was prompt action on the minimum essential elements of economic, social and cultural rights, denial of which caused the decade-long armed conflict in Nepal.
The government of Nepal made repeated commitments on human rights. Prime Minister K.P. Sharma Oli’s statement during the 73rd Session of the UN General Assembly was the latest example of his commitment to human rights.
However, there still remains a yawning chasm between what the Prime Minister has promised and what his government has achieved. Nepal’s efforts in addressing the causes behind the decade long armed conflict has been abysmal. The constitutional recognition of a significant number of ESCRs as human rights, combined with a timeline to adopt laws necessary to implement them, though is highly appreciated, nationally and internationally.
The international community has very little faith in the government’s ability to fulfil its human rights obligations, especially after failing to demonstrate substantive progress on transitional justice. Nepal’s Prime Minister has categorically, in his defence, stated that Nepal’s commitment to human rights is ‘total and unflinching.’ He said, ‘Nepal would not allow impunity in serious violations of human rights and international humanitarian laws.’
A few days before the deadlines set out by the Constitution, the government hastily introduced legislation, without meaningful parliamentary deliberations, and enacted them. To achieve this step, a few parliamentary rules were suspended. This action undermined broad-based participation and representation of citizens in formulating laws and policies, which is embodied in the International Covenant on Civil and Political Rights.
Looking at the content of the legislations, little change has been made in terms of addressing long-standing issues such as exploitative land relations, security of tenure, access to land and other natural resources. Though the seventh amendment to the Land Act contains a provision to provide land for landless Dalit household within three years, the Act fails to specify who is a ‘landless Dalit’ and how much land he/she will be provided.
The Housing Act similarly fails to ensure protection against forced eviction for those living in informal settlements. The Right to Food and Food Sovereignty Act lacks a strong implementation mechanism.
The Constitutional thematic commissions intended to address long-standing exclusion and discrimination faced by certain groups have not yet been established. The legal framework for pre-existing National Human Rights Commission has also not been updated.
A significant number of people affected by the 2015 devastating earthquake in Nepal continue to remain homeless. Migrant workers continue to face exploitations at home and abroad. Entrenched caste discrimination and practices of untouchability also remain key barriers for the enjoyment of human rights—particulaly, economic, social and cultural rights by dalits.
Transitional justice, which is one of the key commitments under the Comprehensive Peace Accord (CPA, 2006), completed 12 years on November 21st. It still has no substantive progress towards identifying truth and paving the way for justice to the victims of conflict-era violations.
Victims of sexual crimes and torture have been let down when it comes to access to justice and interim relief schemes. Though it has been in operation for over three and half years, the Truth and Reconciliation Commission and Commission on Investigation on Enforced Disappearance of Persons (CIEDP) have accomplished nothing beyond collecting complaints from victims.
As indicated by the countless examples proffered here, the government continues to fail to fill the gap in national legal standards on transitional justice.As a result, victims continue to be denied justice and access to effective remedies. In May 2018, the President, acting on the recommendation of the Oli government, pardoned former CPN Maoist leader Bal Krishna Dhungel, who was serving imprisonment for murder of a civilian during the conflict.
In June 2018, the government presented a draft bill to amend the Act on Commission of Investigation of Disappeared Persons, Truth and Reconciliation, 2014. The move towards introducing an amendment was welcomed. However, the draft has been heavily criticised for not implementing or considering the viewpoints of the public or other consultants and for its lack of transparency during the devising process. It has also been criticised for containing flawed provisions that infringe on Nepal’s international human rights obligations, commitments and the Supreme Court rulings.
Despite the repeated call for a more transparent and consultative process in drafting the law, the government has barely responded. There has been a continued lack of accountability for incidents of excessive use of force and extrajudicial executions, including a glaring failure to investigate the killing of more than 50 people during the protests in Tarai.
There have also been allegations of lack of investigations into the rape and killing of a 13 -year-old school girl in Kanchanpur. The government’s effort to curb the right to freedom of expression was evident protests Kathmandu were banned.
The Prime Minister had pledged that Nepal, as a member of UN Human Rights Council, would play a constructive role in delivering the council’s mandates. However, his commitments have failed to materialise. Nepal chose to abstain on a key resolution on the crimes against humanity committed against the Rohingya of Myanmar.
If the Prime Ministers’ commitment to human rights is ‘total and unflinching’—as he claims—the Government must abandon its selective approach to human rights. It should allow the transitional justice process to take its course and remain consistent with established international human rights standards.
The government must act diligently to fulfil its responsibility to ensure economic, social, and cultural rights in the country. Caste and gender-based violence and discrimination must be prevented and combated by ensuring effective enforcement of the law. The Prime Minister’s commitments must be real-they cannot simply be illusory.
Raju Prasad Chapagai is a South Asia Researcher at Amnesty International