Truth Commissions Practices Over the World and a Case of Nepal
BY TRANSCEND MEMBERS, 26 September 2016
Shree Prasad Devkota – TRANSCEND Media Service
20 Sep 2016 – Since the early 1980s, the conception of the truth commission has gained prominence as a mechanism for explaining the history and addressing human rights violations. Argentina’s National Commission on the Disappearance of Persons 1983-84 began the process, and the 1993 report of the UN Commission on the Truth in El Salvador, From Madness to Hope, sharpened the focus on truth recovery processes. Most of armed conflict affected countries established Truth Commissions (TCs) since 1971 to investigate history and address human rights violations.
There is no definition or defining parameter of truth commissions that have yet been identified. There have been various studies and explanations about the TCs. Different conflict experts have outlined its definition as per their context. Valdez states that TCs usually are created to study facts, find out the causes, and determine responsibilities (Valdez, 2001). He further adds TCs acts committed during a period of armed conflict or under a dictatorial regime but are part of a transitional process and do not replace the national prosecutor’s office or the judicial branch. One more conflict specialist, Hayner defines that TCs scrutinize the abuses of the armed conflict record human rights abuses and violations; provide space for the victims to expose their experiences officially recognize and condemn wrongdoings and make the necessary recommendations to prevent future violence enhance justice and respect for human rights (Hayner, 2001). Some other conflict experts define difference between what TCs are and what its roles are. Among them, transitional justice expert Priscilla Hayner describes TCs as “bodies set up to investigate a past history of violations of human rights in a particular country – which can include violations by the military or other government forces or armed opposition forces”. Teitel states that Truth commission is an official body, often created by a national government to investigate, document, and report upon human rights abuses within a country over a specified period of time (Teitel, 2003).Agreeing with them, it can be said that the TCs is an investigatory body established by the State or by a dominant (and often dissenting) faction within the State, to study the truth about pervasive human rights violations that occurred in the period of armed conflict, and to discover which parties may be responsible for their involvement in perpetrating such violations over a specified period of time. TCs is a short-term body that created in a post conflict situation to scrutinize past atrocities, issue findings of responsibility, and make future-oriented recommendations designed to foster and consolidate democracy and a human rights culture (Borer, 2005). So, TCs is also taken a part of a societal process of settlement that helps people mourn, both individually and collectively.
A total of 54 post-countries have experienced transitional justice mechanisms (Truth Commission and Disappearance Commission) to support conflict victims (Pathak, 2016). They are: Angola, Cote d‟ Ivoire, Eritrea, Ethiopia, DR Congo, Ghana, Kenya, Namibia, Nigeria, Somalia, Sudan, South Africa and Zimbabwe (13 countries in Africa); Cambodia, East-Timor, India (Jammu-Kashmir), Indonesia, Nepal, North Korea, Pakistan, Philippines, Sri Lanka and Vietnam (10 countries in the Asia-Pacific region); and Albania, Armenia, Azerbaijan, Bosnia-Herzegovina, Croatia, Cyprus, Georgia, Kosovo, Macedonia and Russia (10 countries in Europe). Similarly others are: Algeria, Argentina, Bolivia, Chile, Colombia, El Salvador, Guatemala, Haiti, Honduras, Mexico, Nicaragua, Peru and Uruguay (13 countries in America); and Egypt, Jordan, Iraq, Iran, Lebanon, Libya, Kuwait and Morocco (8 countries in Middle East). This paper highlighted some countries experience on TCs that has been practiced. This paper has tried to explore the situation of peace process after CPA and the establishment of the commissions for the justice in Nepal. Furthermore, it has tried to analyze the role of the commissions and the challenges ahead for the successful completion in Nepal.
In December 2001, the parliament of Ghana passed a law to set up the National Reconciliation Commission for the purpose of study accusations of human rights abuses during the period the armed conflict. The law, known as the National Reconciliation Commission Act of 2002 (Act 611), goes through into force on January 11, 2002. The President John Kuffuor appointed nine members of commission with six men and three women. It was chaired by retired Supreme Court Justice K. E. Amua-Sekyi. The directive of the Commission, as set forth in Act 611, is to inquire about and endorse national reconciliation among Ghanaians by establishing a truthful and complete historical record of human rights violations and abuses related to the killing, abduction, disappearance, detention, torture, ill-treatment, and seizure of properties within the armed conflict time(March 6, 1957 to January 6, 1993). The commission clearly mentioned that any person could apply to have the commission investigate specific issues within its mandate. The commission was also empowered to make recommendations for readdressing of victims and institutional reform. As per assigned work, the commission finished its final report in October 2004 and it was made public in April 2005.
The Commission heard testimony from 2,129 victims and from 79 alleged perpetrators from witnesses including the former president, John Jerry Rawlings and the former National Security Advisor, Captain Kojo Tsikata. It convened over 2,000 public hearings. The commission highlighted in its report that the colonial government contributed to the legacy of human rights abuses during the period of armed conflict. Similarly report concluded that the armed forces were responsible for the highest percentage of abuses. It added some recommendations for providing comprehensive compensation program including apologies, a memorial, and monetary compensation. The report mentioned the amount paid to victims was to be based on type of violations suffered and focused on funding sources for the future survives for victims. The commission suggested reparations for approximately 3,000 victims of repression under Rawlings’ rule.
Accordingly the Lomé Peace Agreement, the government of Sierra Leone and the rebel Revolutionary United Front calls for the establishment of a truth and reconciliation commission within 90 days after the signing of the agreement on July 7, 1999. Article XXVI of the Lome Peace Agreement provided for the establishment of a Truth and Reconciliation Commission to meet these different needs. But the commission was enacted only in 2000 by the President and Parliament. The Truth and Reconciliation Commission was comprised of seven commissioners: four men and three women, of whom four were Sierra Leonean and three were internationals. It was chaired by Bishop Dr. Joseph Humper. The mandated of the Commission was established is to create an impartial historical record of violations and abuses of human rights and international humanitarian law related to the armed conflict in Sierra Leone, from the beginning of the Conflict in 1991 to the signing of the Lome Peace Agreement; to address impunity, to respond to the needs of the victims, to promote healing and reconciliation and to prevent a repetition of the violations and abuses suffered.
The final description of the commission was given to the President of Sierra Leone on October 5, 2004 and presented to the United Nations Security Council October 27, 2004. Howard Varney, Chief Investigator for the Sierra Leone Truth and Reconciliation Commission Produced an overview, findings, and recommendations on November 12, 2005. The final report is over 5,000 pages long and includes the names of responsible persons of the armed conflict. The commission highlighted that the main cause of the war in Sierra Leone was corruption and an overpowering control of the management. The main victims of armed conflicts were adult males and perpetrators also singled out women and children. The leadership of the RUF, the AFRC, the Sierra Leone Army (SLA) and the Civil Defense Force (CDF) were responsible for human rights violations against civilians. These forces were responsible for innocent peoples’ displacements, abductions, arbitrary detentions and killings, plundering, and looting. Mainly, the leaders of the National Patriotic Front of Liberia (NPFL) and the RUF, Charles Taylor and Foday Sankoh, played pivotal roles in the conflict and RUF was responsible for the highest count of human rights violations in the conflict, followed by the AFRC, the SLA, and the CDF. Similarly, the report highlighted that consecutive governments also abused the death penalty and misused emergency powers against dissidents.
The commission’s key recommendations concerned the fight against corruption, the creation of a new Bill of Rights developed in a participatory constitutional process, the independence of the judiciary and strengthening the role of Parliament. It also focus on stricter control over the security forces, decentralization and enhanced economic autonomy for the provinces as well as the government’s commitment to deliver basic public services and the inclusion of youth and women in political decision-making. Moreover, it also highlighted the establishment of a reparations program and an implementing agency, as it was already suggested in the Lomé Agreement.
The Commission of Truth and Reconciliation was set up in 1995 by the South African parliament to investigate human rights violations during the apartheid-era between 1960 and 1994. The TRC was comprised of seventeen commissioners and among them; nine were men and eight were women. Anglican Archbishop Desmond Tutu chaired the commission. The commissioners were supported by approximately 300 staff members, divided into three committees (Human Rights Violations Committee, Amnesty Committee, and Reparations and Rehabilitation Committee).The mandates of the Truth and Reconciliation Commission were to examine gross human rights violations that were perpetrated during the period of the Apartheid regime from 1960 to 1994, with abductions, killings and torture.
The commission took the testimony of approximately 21,000 victims; and 2,000 of them appeared at public hearings and received 7,112 amnesty applications. Amnesty was granted in 849 cases and refused in 5,392 cases, while other applications were withdrawn. This report also highlighted the structural and historical background of the brutality, individual cases, regional trends, and the broader institutional and communal situation of the apartheid system.
The commission moreover made some recommendations for the reparations and reconciliation of the victims. The commission proposed that each victim or family should receive approximately $3,500 USD each year for six years. It also recommended that South Africa’s society and political system should be transformed to include faith communities, businesses, the judiciary, prisons, the armed forces, health sector, media and educational institutions in a reconciliation process. It also mentioned that Prosecution should be considered in cases where forgiveness was not required or was denied, if proof existed.
The Rwandan armed conflict began in October 1990 when the Tutsi Rwandan Patriotic Front attack Rwanda from Uganda to topping the government of President Juvenal Habyarimana. Juvenal lead government controlled force attached minority Tutsi and moderate Hutus. In turn, the RPF invaded many Hutu innocent people and reportedly recruited school going children. After signing the Arusha Accords in 1993, the armed conflict was officially ended. Despite the implementation of Arusha Accords and the agreement on power–sharing, tensions continued between Hutu and Tusti factions. As a result, in 1994, President Habyarimana was assassinate, which ember the genocide that estimated 100000 people lost their life within 100 days.
As per the Arusha agreement of 1993, all parties were ready to establish the Commission of Inquiry and National Commission on Human Rights to investigate human violations. Article 16 of the 1993 Arusha Accords provided for the establishment of a Commission of Inquiry and National Commission on Human Rights to investigate human violations during the armed conflict. But intervening armed conflict had affected to set up until 1999, until when it was set by the new Transitional National Assembly.
The commission consists of twelve Rwandan members and currently chaired by Mr Jean Baptiste Habyarimana and Ms.Fatuma Ndangiza holds the position of the executive secretary.
The commission was empowered to promote reconciliation, culture of peace and human rights and denounce any ideas aimed as disunity. Commission was tasked to make awareness Rwandese on their right and the rights of others and respect and observe the policy of national unity and reconciliation that introduce as per Arusha Accord.
The Commission’s reports reveal that political and social-economic factors are more responsible for separation to any fundamental differences between Hutus and Tutsis. Aloisea Inyumba (former commissioner and executive secretary of Rwanda’s Unity and Reconciliation Commission) stated that “Rwandans are now discovering, to their surprise, that the ethnic differences which have been so much magnified in the past are not the real differences. The issue in Rwanda was bad governance, the culture of impunity and social injustices by successive ruling clique. These have affected almost every Rwandan in one way or another”. And the Commission proposed a law to the parliament that would punish all forms of discrimination. The Commission also recommended that the Minister of Education adopts ‘A history book’ in the school curricula.
In November 1994, President Chandrika Bandaranaike Kumaratunga appointed three diverse Commissions for the study of Involuntary Removal or Disappearance of Persons, each assigned to cover a different geographic part of Sri Lanka. The Commission mandates were to investigate whether individuals had “disappeared” during armed conflict, to study the reason of the disappeared and to bring about charges against those responsible for the abductions. Beginning in January 1995, every commission worked separately. Jointly they studied and investigated over 16,700 of cases of disappearances, presenting a final report to the president in September 1997. Finally the final report was made public, recompense paid to the relatives of some of the victims, and over 400 members of the country’s security forces were duly charged with human rights violations.
Nepal’s Peace Process
In 1996, the then CPN (Maoist) formally waged armed conflict against the state, which lasted for ten years. According to data presented by various human rights organizations in Nepal, 13,276 people were killed during this conflict by the state and Maoists party. Armed conflict resulted in the violation of massive human rights and humanitarian law perpetrated by both the government and the Maoists. Thousands of people were disappeared during this conflict period and have been attributed to both sides of the conflict, resulting in a total of 933 disappeared persons so far. In addition, mainly ordinary and innocent people were abducted and they were torture, maiming, intimidation, forced displacement, persecution and extortion by both conflicting party.
Nepal’s ten years armed conflict ended in 2006 with Comprehensive Peace Accord (CPA) in November 2006. After the peace agreement between seven agitated parties and Maoist, there was an initial commitment to confront the abuses the country has suffered. To do so, the political leadership at that time put forward proposals for establish two separate commissions: a Truth and Reconciliation Commission (TRC), and a Commission of Inquiry on the Disappearance of Persons (COID). As a result, CPA and the Interim Constitution include necessities to set up a TRC and a commission to investigate disappearances. Clause 5.2.5 of the Comprehensive Peace Accord (CPA) signed in 2006 clearly mentioned the provision of establishment of truth commission to investigate the violations of human rights and abuses during the conflict time.
Unfortunately, unstable political situation and political parties’ confrontation affect the late formation of the transitional justice bodies. Political parties were seen to fulfill their political interest than conflict victims’ need. The question of truth and justice is being compromised by the politics of crime. The perpetrator-led transitional justice process is not supportive of the victims of violence and has failed to address victims’ needs. It is because the parties have set up transitional justice mechanisms as part of a political package deal, and failed to establish a victim-centered approach to justice. Such mechanisms will not address the root causes of the conflict, grave violations of human rights and politically motivated crimes such as rape, torture and enforced disappearances. Nepal’s transitional justice laws and the new Constitution have both failed to punish those people that they were involved in torture and enforced disappearance as a crime against humanity. Instead, state institutions have given protection to criminals and the state’s denial continues. As a result, truth for victims has been systematically ignored and repressed since the end of the armed conflict a decade ago, particularly for the families of the disappeared. For the families of the disappeared, the suffering continues as long as the many impacts of disappearance remain unaddressed.
Only on 25 April 2014, the Parliament of Nepal passed the Act on Commission on Investigation of Disappeared Persons and Truth and Reconciliation (“the Act”) for creating the Commission on Investigation of Disappeared Persons (COIDP) and the Truth and Reconciliation Commission (TRC). The Act was published on 21 May 2014. On 10 February 2015, the Government of Nepal established these two Commissions.
Eight years after the Maoists and the government signed the Comprehensive Peace Agreement (CPA), a Truth and Reconciliation Commission (TRC) and a Commission to Investigate Enforced Disappearances has finally been formed. This marks an important milestone in Nepal’s peace process. Surya Kiran Gurung was chosen as Chairman of the TRC and Lokendra Mallick was chosen as a chairperson of the CIEDP.
Truth and Reconciliation Commission (TRC) and a Commission to Investigate Enforced Disappearances closed complaint registration with over 60,000 cases collected in the four months. The commissions, still, are yet to receive the complaints sent through snail mail. Both transitional justice bodies’ chairman committed to complete their task in six months. They have started receiving complaints from the armed conflict affected people in mid-April, after 14 month of their appointed tenure. The Truth and Reconciliation Commission (TRC) and the Commission of Investigation on Enforced Disappeared Persons (CIEDP) now have six months in hand to establish truth, investigate into rights violations and make recommendations for action. The transitional justice bodies, which were established with a two ear mandate, have to complete their tasks by February next year.
It has been already 10 years of the Comprehensive Peace Accord which has ended the armed conflict and transitional justice was started in the country. Though there are establishment of commissions for providing justice and punishment for the related persons after 8 years of CPA, but there are several challenges ahead to complete the task. Till the date, there is only 5 months for the completion of the total task of the commissions, TRC and CIEDP. The work done by these two commissions is remarkably great but still the task couldn’t be completed within this short period. The complaints of 60,000 people regarding the different incidents of the armed conflict are registered within these commissions. It needs qualified experts of the same field, high level human resources, infrastructure, budget, international bodies for monitoring and evaluation etc for the successful completion of investigation of these registered cases. But if we see the present scenario, there are less number of human resources, not adequate facilities and not enough time for the investigation and it is not possible within just 5 months too. “We have written to demand the hiring of some specialists and need a budget of Rs 550 to 600 million” said Surya Kiran Gurung, chairman of TRC. Additionally, Gurung said the timeframe for completing the task is not enough. “It is not possible to provide justice to the victims within such a short duration. If we really are to provide them justice, the current level of support from the government is woefully insufficient,” he further added. So, this is the major challenges on true investigation of these cases.
The resources are limited and not adequate for the overall investigation within the certain time framework. CIEDP spokesperson Prof Bishnu Pathak told “The commission, of course, is a high level body so to speak but has failed to fulfill its responsibilities due to lack of cooperation and support from the government.” Pathak further said, “Earlier, we had to wait for eight months to get an office and now that we’ve got it, neither the government nor the international community is ready to help us”. “It was the United Nations that was so vociferous in calling for the formation of the commission and finally when the commission has been formed the UN is assuming a mysterious silence,” added Pathak. This seems that the urgent need of the fulfillment of this issue is seen. The commissions are formed just to fulfill the political commitment without effective implementation. The Government is ignoring on providing adequate resources and support. In the other hand, the victims are appealing for their rights and justice. This seems mismatching on the needs and fulfillment. The challenge here is only establishment of the commissions is not sufficient, but the efficient work and environment is needed.
There is strong desire and request of the family whose members are disappeared, killed, tortured and injured. They want to know the whereabouts of their loved ones, and they are asking for an answer to know whether their loved ones or relatives are alive or not at present. They want to know what is done for these cases, and they want the perpetrator to be held accountable for what they did. And they are demanding for justice for conflict-related human rights violations in Nepal. The major question is about how to know if the perpetrators would get punishment or will be granted amnesty. In one hand there are victims seeking justice, in the other hand there are commissions for addressing these issues without adequate resources and the other side is government, which is seeing this issue only for fulfilling the political commitment. This seems that without the coordination of these three parties, support and help from all aspects, the investigation and the justice would not be provided.
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Shree Prasad Devkota is a member of the TRANSCEND Network for Peace, Development and Environment. He is a Kathmandu University graduate, has a Master’s in Mathematics Education and M.phl in Development Studies. Currently he is chairperson of SDEF–Sustainable Development and Empowerment Forum, and has worked as a lecturer. He is researcher in the field development sectors in Nepal and has worked as consultant, monitoring and evaluation expert in different I/NGOs. Devkota has been working in the field of education of children, marginalized and socially excluded groups, especially on conflict management regarding the post-conflict situation in Nepal. He has published several research articles in national and international journals. Books: Teacher’s Lived Experiences and Contextualized Mathematics, LAP Lambert Academic Publishing, Germany, 2012. Education in Nepal from Dalit Perspective, LAP Lambert Academic Publishing, Germany, 2013. Conflict in School and Its Management by Shree Prasad Devkota and Shiba Bagale, Scholars’ Press, Germany, 2015.
This article originally appeared on Transcend Media Service (TMS) on 26 September 2016.
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