Open letter to PM G.P Koirala

Reg. no. 877 SWC no.21886

Ref: Truth and Reconciliation Commission Bill 17th July 2007

Date: 20th December 2007

Dear Right Honourable PM G.P Koirala,

Protection Desk-Nepal (PD-N) is a national NGO, registered with the Nepalese Government no. 877 and affiliated to the Social Welfare Council no.21886. PD-N works in conjunction with Protection International in the implementing it’s Mainstreaming Protection Programme. The aim of this programme is to support human rights defenders in improving their own security management and establish effective mechanisms for their own protection. The main elements of PD-N’s work are carried out through capacity building workshops and through the organizing of seminars and meetings. For over a year PD-N has been working with victims groups directly under the umbrella of the same mainstreaming programme.

In line with this ongoing programme to support victims of Nepal’s 10 year conflict PD-N recently organized a meeting of some 30 regional representatives of victims groups in order to discuss the protection provisions, Article 18, of the Truth and Reconciliation Bill 17th July 2007. The main objective of this meeting was to give the victims themselves the chance to review, evaluate and develop protection measures that would enable them to participate fully in the development of the Truth and Reconciliation Commission (TRC) and by extension any other transitional justice mechanism that the Government is intending to develop in its attempt to bring an end to impunity for past human rights violations in Nepal.

PD-N is concerned, as are many, that victims are not being consulted over basic issues that will affect their ability to participate in this transitional process. The lack of government sponsored consultations was of grave concern to PD-N, of even greater concern is the seeming complete disregard for the victim’s security demonstrated by the protection provisions included in the Bill. PD-N is also concerned that the openly hostile environment in which any commission be established, whether Truth or Reconciliation or Forced Disappearance, will actually hinder the work of the commission, something that representatives of the victims groups confirmed during discussion in the meeting. The representatives came to the conclusion that now is not the time to be holding any form of commission as the violence so prevalent in the society will prevent the truth from being established and therefore the perpetrators from being brought to justice and punished. According to the same representatives whilst the violence in the Terai continues, violent strikes continue to be common place and there is no broad consensus between the political parties on how to proceed with the process of transition towards democracy the effectiveness of the Commission will be severely limited.

The outcome of this meeting are a series of recommendations made to the Nepalese Government suggesting various measures that need to be implemented in order to create the right conditions for the commission or any other such mechanism.

One of the prime obstacles to the success and effectiveness of the commission is the perceived lack of political will prevalent in Nepalese society to establish the truth and see justice done. This is perhaps demonstrated by the lack of protection measures for victims included in the first draft of the Bill. All of the representatives admitted to having received threats and to suffer from intimidation and fear because of the work they are doing exercising their rights. Many complained of the general lack of public awareness about the TRC and that the lack of protection measures and prior consultations with victims groups has excluded many not only from actively participating in activities organized to publicize the TRC but also from the ongoing transitional process itself.

Recommendations in order to create the necessary conditions for any form of commission to establish the truth surrounding past human rights violations:

1.The representatives call on the government to find a negotiated, political settlement to the situation of violence in the Terai. Special attention should be given in those negotiations to the respect and security of human rights defenders.

2.The Government of Nepal should assume its responsibility and develop outreach programmes that will inform not only the victims but also wider society about the importance of the TRC as a mechanism to bring an end to impunity in Nepal and reconcile the society

3.The Government of Nepal should give the necessary political recognition of the important role of victims in rebuilding Nepal; acknowledging their legitimate rights to Truth, Justice and Reparation.

4.Development of an effective and comprehensive protection programme for witnesses/ victims protection to include the specific requirements relating to cases of human rights violations and that has a gender perspective.

Recommendations as to the improvement of Article 18 of the Truth and Reconciliation Bill of 17th July 2007:

Sub-section 1

1.The selection process of commissioners and its staff should be impartial, transparent. Wide consultations with victims groups should be carried out in order to ascertain the suitability of the Commissioners and Staff.

2.The Bill should include provisions for the creation of regional and district level representative offices in order to better coordinate with witnesses and victims.

3.The timeframe for witness and victim protection should be clearly stated in the TRC Bill, i.e. what is to be done regarding protection before, during and after the Commission. Sub-section 2

1.The Bill should include provisions for the creation of an independent committee for the security and protection of witnesses and victims. The committee should come under the supervision of the Truth and Reconciliation Commission.

2.Members of the committee should either be experts in Protection or be trained in protection methods.

3.Funds should be allocated for the provision of protection to be administered by the independent committee.

4.The Bill should allow for the creation of “safe houses” in order to protect the witnesses and victims during the hearings.

5.Individual protection plans should be drawn up in close consultation with the victims and their families. No action should be taken without prior consultation and agreement from the witness/victim.

6.The Independent Committee should actively seek the collaboration of networks of national and international human rights organisations, civil society organisations, civilian authorities such as the Ministry of Law and Justice and State human rights institutions such as the National Human Rights Commission in the implementation of protection measures.

7.The independent committee should be able to respond in the case of emergency and also provide for more long term protection of witnesses and victims.

Sub-Section 3

1.See above “witness protection programme”.

Sub-Section 4

1. The Bill should provide for a fund to be established for transport, food/lodging, compensation of wages, physiological support for the victims in the form of accompaniment whilst attending the hearings and child care for those victims giving testimony.

Sub-Section 5

1.The Bill should provide for the use of video footage and screening in the Hearings in order to protect victim’s identity and prevent undue fear and intimidation of the victim whilst giving testimony. The wishes of the victims should be paramount in any decision regarding the method of giving testimony.

The representatives of the victims groups were all very clear that they are keen to see a TRC established in Nepal and that they willing to cooperate yet given the current protection provisions in the Bill they do not foresee a future without fear of reprisals. This fear will in effect prevent them from participating in the TRC and consequently limiting its effectiveness as a tool against impunity. It is the hope of the undersigned victims groups that the Government of Nepal will take up the challenges of making the TRC as comprehensive and effective as possible by listening to their recommendations and adapting the all proposed legislation accordingly.

Signed:

Victim Group Surkhet, Victim Group Lamjung, Victim Group Udayapur, Victim Group Kanchanpur, Victim Group Baglung, Victim Group Morang, Victim Group Dhanusha, Victim Group Bardia, Victim Group Dhading, Victim Group Kathmandu, Victim Group Banke, Victim Group Rupandehi, Victim Group Kapilbastu, Victim Group Kaski.

Cc: Government Ministers, Members of the House of Representatives, National Human Rights Commission, Members of the Diplomatic Community accredited in Nepal, UN Agencies, National Human Organisations, and International Human Rights Organisations.

For Further Information please contact Protection Desk-Nepal thank you.