OHCHR in Nepal: An early warning for NGOs
As we upload this issue of the ACHR WEEKLY REVIEW, political parties in Nepal have been holding parleys to break the political impasse over the demands of the Maoists for the declaration of Nepal as republic and adoption of full proportional representative election system for the constituent assembly.
In last couple of weeks, Asian Centre for Human Rights has been receiving disturbing reports about the negative perceptions of certain Nepalese civil society organisations on the Office of the High Commissioner for Human Rights. A section of the Nepalese civil society organisations want the OHCHR to close its office in Nepal for reasons best known to them. Even some members of the National Human Rights Commission of Nepal have been expressing opinion that the OHCHR has made it ineffective.
These perceptions and accusations are naive and short-sighted. Civil society organizations must be able to read between the lines and have sound political judgements. Nothing could be more naïve than presuming that Nepal is back to normal and political parties or their leaders have changed their colours. While King Gyanendra must be deposed through a proper procedure, one must remember that these are the same political leaders who headed the governments at various points of time since the conflict with the Maoists broke out in 1996 and allowed gross human rights violations. The Maoists too were equally responsible for violations of international humanitarian laws.
Asian Centre for Human Rights believes that Nepal is in the throes of more conflicts and the OHCHR-Nepal remains indispensable.
I. No commitment of the government on human rights
During the 61st session of the Human Rights Council, the Permanent Representative of Nepal to the UN in Geneva vehemently opposed any country resolution on Nepal. When Asian Centre for Human Rights released its report The Case for Intervention in Nepal: A report to the 61st session of the United Nations Commission on Human Rights, the representative of Nepal was present to justify the Royal takeover.
The same representative after the overthrow of the monarchy eulogized the role of the NGOs for the restoration of democracy in Nepal.
However, on the first day of the meeting of the Third Committee of the General Assembly on 8 October 2007, the report of the OHCHR on Nepal was rejected by vote and therefore, the OHCHR report on Nepal could not be tabled at the General Assembly. The representative of Nepal to the UN in New York while moving the resolution stated that since the Human Rights Council was in transition, the 2006 OHCHR report was submitted to the Third Committee. This is despite the fact that the Memorandum of Understanding signed by the Government of Nepal mandated the OHCHR to “submit analytic reports to the Commission on Human Rights and the General Assembly”.
The present government of Nepal which also included the Maoists has no commitment on human rights, rule of law and accountability. The failure to appoint members of the NHRC for more than one year and the failure to implement the recommendations of the Rayamajhi Commission speak about their lack of commitment.
a. No National Human Rights Commission for over a year
On 9 July 2006, members of the NHRC appointed by the King resigned en masse. Until the Parliamentary Special Hearing Committee approved the new members of NHRC on 12 September 2007 pursuant on the recommendations of the Constitutional Council on 30 August 2007, the NHRC virtually did not exist. There was absolute protection gap in Nepal for more than a year.
b. Impunity: The Rayamajhi Commission
On 3 August 2007, the government tabled 1400-page report of the Justice Krishna Jung Rayamajhi Commission in the Parliament. The Rayamajhi Commission recommended action against 201 persons including the Chairman of the Council of Ministers (i.e. King Gyanendra) and 34 members of his Council of Ministers, five regional administrators, 13 zonal administrators, former Nepal Army chief Pyar Jung Thapa, National Investigation Department chief Devi Ram Sharma and Chief Election Commissioner Keshav Raj Rajbhandari for abuses and misuse of power to suppress the Peoples’ Movement. The Commission recommended enactment of new law to penalize some of the accused who enjoy immunity under the present laws.
The only punitive measure taken was the enactment of the Constituent Assembly Members Election Act which barred individuals named as accused by the Rayamajhi Commission from contesting the Constituent Assembly elections. But that too was struck down by the Supreme Court on 27 September 2007 on the ground that the Act was in contravention of the Interim Constitution.
It must once again borne in mind that those at the helms today are the same leaders who sat over Mallik Commission of Inquiry that investigated the human rights violations during the first Jana Andolan in 1990s.
II. Portents of conflict I: Polarisation of political parties
Following the withdrawal of the Maoists from the government on 18 September 2007 and subsequent cancellation of the Constituent Assembly elections, Nepal has been thrown into uncertainty.
Can the ongoing session of the parliament resolve the current impasse? Indian ambassador to Nepal H.E. Shiv Shanker Mukherjee held separate discussions today i.e. 31 October 2007 with Prime Minister Girija Prasad Koirala and Maoist Chairman Prachanda in an attempt to break the political deadlock.
In the Interim Parliament, out of the 330 members, Nepali Congress (Koirala-Deuba) has 133 members, Nepal Communist Party (United Marxist Leninist) has 83 members, Nepal Communist Party (Maoist) has 83 members (members including nominated by Maoists from civil society), Rastriya Prajantra Party has 8 members, Nepal Sadhbhavana Party (Anandidevi) has 6 members, Peoples Front Nepal (Lila) has 4 members, Ratriya Peoples Front Nepal (Chitra) has 3 members, Nepal Communist Party (Unified) has 2 members, Nepal Workers and Peasant Party has 4 members and United Leftist Front has 3 members. 
For the motions moved by the Maoists to be adopted in the interim parliament, the Maoist will require two-third majority – an impossibility in the current scenario unless complete polarization between the Congress in one side and communists on the other takes place. On 15 October 2007, the CPN-UML tabled two amendment proposals on the proposals submitted by the CPN (Maoist) at the parliament. In their proposals, the CPN-UML has demanded proclamation of Nepal as a “federal democratic republic” only by an elected Constituent Assembly and sought legal provisions to adopt fully proportional electoral system. 
If the parliament rejects the Maoists' motions, what would be the strategy or reaction of the Maoists? Everybody in Nepal believes that the Maoists will not return to the jungles. Does that mean that if they will one fine morning be so constructive and seek the mandate of the people through constituent assembly elections? Or would they hold Nepal to ransom and entice the military to intervene?
III. Portents of conflict II: Madhesis
On 30 August 2007, the government and the Madhesi Janadhikar Forum signed a 22-point agreement which included, among others, providing compensation to those killed during the Terai movement, guarantee of inclusion of Madhesis and other marginalised groups in the Constituent Assembly, granting autonomy to the states in the federal system.
But the Madheshi problem is far from over. The Maoists supremo Prachanda described the agreement as “full of conspiracy”. Both the Goit faction and the Jwala Singh faction of the Jantantrik Terai Mukti Morcha (JTMM) have vowed not to allow the Constituent Assembly elections to take place in Terai.
The riots which broke out in Kapilavastu and Rupendehi districts following the killing of Mohit Khan, leader of the Democratic Madhesi Front at Shivapur village in Kapilvastu district on 16 September 2007 is a testimony to the fact that the Madhesi conflict is far from over. It remains to be seen whether three-member judicial commission of inquiry headed by Judge Lokendra Mallik of Rajbiraj Appellate Court is able to fix criminal responsibility for the Kapilavastu riots which claimed the lives of at least 31 persons. The statement of the Inquiry Commission that only 14 persons were killed has not helped.
IV. Portents of conflict III: Indigenous Janjatis
After a series of protests by the indigenous peoples and 10th rounds of discussion, on 7 August 2007, the interim government of Nepal signed a 20-point agreement with Nepal Federation Indigenous Nationalities (NEFIN) and Indigenous Nationalities Joint Struggle Committee (INJSC). The agreement provided for at least one member from each of the 59 officially recognized indigenous nationalities in the Constituent Assembly, setting up of a national commission for the indigenous Janjatis; formation of a “state restructuring commission” that will suggest the Constituent Assembly on the restructuring of the state on the basis of ethnicity, language, geographic region, economic indicators and cultural distinctiveness; formation of a taskforce to ensure inclusive participation and proportional representation of all castes, indigenous nationalities, communities, genders and regions in all bodies and levels of the state; and ratification and adoption of the ILO Convention No. 169 etc.
Both NEFIN and INJSC are moderate and led by persons who espouse democracy. Yet, nobody knows better than the Maoists about the impact of the genie of sub-nationalism that they planted through Limbu Mukti Morcha, Rai Mukti Morcha, Tamang Munkti Morcha, Magar Mukti Morcha etc. The Madhesis were the first one to break away from the Maoists.
In the beginning, the Maoists were ambivalent, if not against, the demand for full proportionate representation. The experience with the Madhesis – the killings of 25 Maoists in Rautahat and complete loss of support base in the Terai made the Maoists strong believers of full proportional representation, an absolutely unclear and ambiguous concept in the lexicon of Nepalese politics.
V. Monarchy is not done yet
It is commonly believed including in the diplomatic circles that the monarchy has been done away with and basically requires the imprimateur of the parliament for its abolition.
There is no doubt that King Gyanendra himself made the monarchy irrelevant. Otherwise, monarchy still has relevance as a possible counter-balance to the political parties in Nepal.
The successors of Shabdrung of Bhutan, the de jure spiritual and temporal head of the ruling Drukpas of Bhutan still live in India. It was only in 1907 that the ruling Wangchuk dynasty of Bhutan was cropped up by the British.
If the successors of Shabdrung of Bhutan who have been ousted over a century ago are still considered as possible counter-balance to King Jigme Singhye Wangchuk of Bhutan, there is no reason as to why King Gyandendra with strong support from the Nepalese Army could not be considered so.
VI. Conclusion: OHCHR's indispensability in Nepal
Whether Nepal is declared as a republic or not is immaterial. It is a non-issue in real terms.
The key issue is no political party in Nepal can fullfil the aspirations of the people of Nepal as they failed in 1990s and ultimately led to the Maoists' uprising. Asian Centre for Human Rights believes that even if the Maoists were to come to power with two thirds majority after elections, they will still not be able to fulfill the aspirations of the Janjatis and Madhesis. Sooner or later, vicious conflicts will start.
Therefore, any suggestion that OHCHR is not required in Nepal is not only naïve but only supports the government of Nepal which has hardened its position as reflected from the resolution moved at the Third Committee of the General Assembly or those governments who believe that Nepal has achieved stability and therefore, funding of the OHCHR field mission (OHCHR field missions run on voluntary funding) is not the worth.
The arbiter on Nepal i.e. India also does not want any international actors in Nepal. India’s Foreign Minister Pranab Mukherjee described withdrawal of the Maoists from the government as “internal issues of Nepal to be resolved by Nepal itself”, only to send Prime Minister’s Special Envoy, Shayam Saran to Nepal from 11 to 13 October 2007. India opposes any role of the international community in the region including on Burma. Therefore, it is against any expansion of the mandate of the United Nations Political Mission in Nepal. India believes that election at any cost will resolve the problems in Nepal just the way it advised the military junta of Myanmar to establish an inquiry commission into the recent killings of the monks in order to scuttle international scrutiny.
The NHRC of Nepal is not undermined in any way by the OHCHR. The role of NHRC starts where the role of OHCHR and NGOs ends i.e. to fix criminal responsibility and intervene with judiciary for prosecution of the culprits. NHRC’s action on the Kapilavastu killings will be a test case for the new members.
The role of development NGOs in Nepal has not been undermined by UNDP nor has the role of child rights NGOs been undermined by UNICEF. Therefore, it is preposterous to suggest that the presence of a UN agency like OHCHR undermines the role of the human rights NGOs and the National Human Rights Commission.
The killings have drastically reduced but Nepal still remains absolutely lawless and failed state where only the writ of the Maoist' Youth Communist League runs. The admission of Maoists supremo Prachanda today i.e. on 31 October 2007 that the Maoists' cadres are responsible for the abduction of journalist Birendra Sah from Bara on 4 October 2007 and his continued holding in captivity shows that there are many Somali-type warlords out there in Nepal and they are not necessarily under the command and control of Prachanda.
It is in these situations that the OHCHR remains indispensable in Nepal. But it needs to re-define its role including re-assessment of the number of staff it requires or the identification of activities under the existing circumstances. It is no longer in the Jana Andolan situation.
Both the NGOs and OHCHR must recognise this.