Critical Reflection Following the KOFF roundtable on Challenges for Human Rights Defenders: Reflections from Nepal Dipendra Jha, Chairman, Terai Human Rights Defenders Alliance Anna Leissing, Program Officer, Centre for Peacebuilding KOFF, swisspeace Challenges of HRDs increasing risk for HRDs is to become victims of false accusations and unfair legal trial and At the KOFF Roundtable on Challenges for conviction. Human Rights Defenders: Reflections from In Nepal, one can argue that HRDs are at risk of Nepal, three inputs were made by Dipendra Jha, facing five major challenges. First, the state Advocate of Supreme Court of Nepal and security forces and ruling elites of the specific Chairman of Terai Human Rights Defenders country tend to ignore the work and identity of Alliance, Martin Stürzinger from the Swiss HRDs themselves. These persons, including Federal Department of Foreign Affairs, Human lawyers and journalists, who investigate such Security Division and Anna Leissing from the unlawful activities are subject to regular threats, Centre for Peacebuilding KOFF. The roundtable inflicted violence and arrests by the police.1 highlighted specific challenges which human rights defenders (HRDs) in Nepal face. It also Second, once human rights defenders create took a step back and reflected on some common power through their work, they risk co-optation by challenges that cut across different contexts. state agencies that offer them appointments within the state structure. Third, the HRDs who According to the UN Special Rapporteur on the are not co-opted and continue their human rights situation of human rights defenders, HRDs are protection work, risk to be defamed by the state subject to violations of their human rights in every agencies and elements that serve the interests of region of the world. Their situation is often the state. especially precarious in countries where there are legal restrictions on the work they do; when Fourth, an increase of power and visibility is often legal and/or institutional protections and faced with backlash. Rumors are circulated that guarantees of human rights are not fully assured accuse HRDs of being corrupt, misappropriating or do not exist at all. HRDs worldwide risk being the target of killings, torture, beatings, death 1 Dipendra Jha was threatened last year by a senior threats, harassment and defamation, arbitrary superintendent police officer due to his involvement in a arrest and detention, as well as restrictions on case lodged with the Supreme Court regarding an extra- their freedom of movement, expression, judicial execution. He was told not to pursue the case, association and assembly. These acts of failing which his life would be in danger. This incident was aggression are often in violation of both reported on the first page of the Kathmandu Post. Please visit: international and national law. However, some http://www.ekantipur.com/the-kathmandu- countries adopt restrictive domestic legislation post/2011/08/11/top-story/state-of-nepali-state-govt- that hinders the work of HRDs and is often used officials-harassing-us-madhesi-activists/225066.html to criminalize their activity. Therefore, an 1 funds or of having made mistakes in their instance, in the form of the UN Office of the High personal lives. After experiencing defamation, the Commissioner for Human Rights from 2006 to work of HRDs in bringing cases to light and 2010), with many HRDs and their organizations prosecuting them becomes limited due to lack of being able to work with the support of various funding, credibility, reputation and human donors, HRDs face a threat to their continued resources. Many HRDs experience existence as they have largely failed to impact destabilization at this stage of activism. The fifth public opinion on human rights. In particular, civil challenge is a risk of elimination through a and political liberties are not given priority in the physical attack, which is accompanied with other national conversation, with development issues significant issues. taking the forefront instead. HRDs in Nepal risk facing these five challenges; There has been little democratic reform in Nepal raising questions on whether this is applicable to since the Comprehensive Peace Agreement was other parts of the world as well. The KOFF signed in 2006. For example, problems of roundtable heightened fears that these are institutional failure remain entrenched, and there challenges that are widespread for HRDs the is a continued obstacle to restructure the feudal world over. At the same time, reflections on system of ownership. This further leads to an emerging guidelines on HRD protection unsatisfactory relationship between development- highlighted that there is some discussion, oriented objectives and human rights objectives. acceptance and international recognition on risks In this post-conflict context, unlawful activity faced by HRDs and how it is important to remains rampant and systemic. At best, the establish tools for their protection. security apparatus remains incompetent in its investigative capacities and is inefficient. At its Brief political background of worst, the security forces corruptly dispense Nepal justice for the elitist, the rich and the powerful while abusing the innocent and the marginalized. Nepal is currently undergoing a transition from Against this backdrop, HRDs have faced several the decade-long Maoist insurgency from 1996 to challenges in negotiating, monitoring and 2006, which was formally ended by way of the documenting unlawful activity. Comprehensive Peace Agreement signed on 22 December 2006. Thereafter, the Maoists’ Absence of strong legal political front, in the form of the political party, the Unified Communist Party of Nepal (Maoists), re- mechanisms joined the democratic electoral process. Nepal’s In Nepal torture is legally taken as a civil problem Interim Constitution of 2007 still remains in force, not a criminal offense.3 Thus, the Courts do not with the first Constituent Assembly (“CA”) having have criminal jurisdiction to punish perpetrators been dissolved in May 2012. Baburam Bhattarai, of torture because torture by the State is not the then Prime Minister, admitted that the four recognized as a crime in Nepal’s penal law. The years long effort to write a new constitution had courts are also not adequately empowered to ended with the "collective failure" of the country's compensate the victim in terms of arbitrary politicians.2 Parties were unable to reach an detention. While the Nepal Police has a human agreement on divisive issues such as federalism. rights cell in its headquarters, it does not have The second CA is currently working towards functional independence. While the National meeting the deadline of January 22, 2015 to Human Rights Commission does have some promulgate a new Constitution. Despite the power to investigate such allegations of unlawful presence of the United Nations in Nepal (for activity and competent members, its recommendations remain largely unimplemented. 2 The Economist,'Ad hoc Country, An election is called, but The lack of effective accountability mechanisms political stability remains a distant dream, June 22, 2013, available athttp://www.economist.com/news/asia/21579882-election- called-political-stability-remains-distant-dream-ad-hoc- 3 Please see Nepal’s Torture Compensation Act, 1996 country? http://www.lawcommission.gov.np/site/en/content/compens Zid=309&ah=80dcf288b8561b012f603b9fd9577foe. ation-relating-torture-act-2053-1996 2 to hear complaints within the criminal justice 24 hours of arrest. This is another obstacle that system largely diminishes the ability of HRDs to prevents the due course of a full and impartial effect meaningful change and redress. This investigation. Efforts need to be made in Nepal shows the lack of legal mechanisms to prosecute on better accountability mechanisms of the police human rights violators in Nepal. Sometimes, fear force. For example, it would be important to have of antagonizing the police also prevents the filing provisions in the new constitution regarding an of compensation claims for torture. independent police commission. Such a commission could be a major step to improving Extrajudicial execution has also the same protection and minimizing threats to HRDs. problem; police's indirect refusal to provide required information creates problems in impartial investigation. The nexus between armed groups, Rumors and threats as tools to police force and political groups often leads to defame HRDs cases not being investigated. To-date, there have been no charges brought against police accused Using rumors and anonymous emails to defame of carrying out extrajudicial executions.4 In many is one tool that is used against HRDs and their cases, HRDs are denied access to the activities. This is likely to be used in a critical information necessary to investigate cases moment of a just process. Defaming a change effectively (such as access to post-mortem agent in Nepal is normal and it often happens reports and information about the perpetrator).5 when there is impact of activism. Right to This makes it impossible for a full and impartial freedom from the perspective of citizens' investigation to be carried out. participation in the national political process, among other things, is basically concerned with In order to commence criminal investigations freedom7of opinion and expression, freedom to (including prosecution of the police themselves), assemble peacefully and without arms, and First Investigation Reports (FIRs) are to be filed. freedom to form unions and associations (Art 12, However, in practice, these are rarely filed when Interim Constitution of Nepal, 2007). In Nepal, we unlawful police action is involved6. This problem have a large number of cases. For example, C.K is exacerbated by the fact that FIRs are to be Raut is a Madhesi activist who spoke openly to filed at the police office closest to the incident, the Madhesi People (people residing in the resulting in the paradox of the perpetrator filing southern plains) about their need for an an FIR against himself, or his colleagues doing autonomous state; he was arrested without a so.