Embargoed for: 24 January 2011
Review: 231/11

Nepal: The High Commissioner’s Human Rights Folly

 ‘‘OHCHR’s credibility (...) has not resulted from meek compromises, not from watering down reports or avoiding sensitive issues. On the contrary, its strength has come from a courageous and proactive independence (...) The only way to sustain credibility and legitimacy in Nepal is to keep doing that job, firmly and honestly and without compromise.’  - Evaluation of the work of OHCHR in Nepal, 12 November 2010, Liam Mahony, Roger Nash, and Indu Tuladhar.

In October 2010, the Asian Centre for Human Rights (ACHR) expressed concern that the United Nations High Commissioner for Human Rights, Navi Pillay was failing to support her own field office in Nepal (OHCHR-N).   ACHR was particularly concerned over her decision to agree to close OHCHR-N field offices outside Kathmandu. ACHR warned that the closure endangered the institution’s effectiveness and would further erode its credibility.  Most observers believed that the High Commissioner (HC) had, at a generous best, conceded too freely and without sufficient regard for the consequences, not least because OHCHR's own reporting suggested a deteriorating human rights environment.

ACHR’s concern also focussed on the HC's prolonged inaction to address OHCHR-N's strategic and managerial failings; failings that were in marked contrast to its earlier effectiveness and impact.  ACHR recommended that if OHCHR-N was to have a future, the HC must now demonstrate public commitment to her field office and, as a priority, expedite the appointment of new leadership.

ACHR's concerns are not new, nor particularly original. In 2008, the EU commissioned an evaluation of OHCHR-N’s work. It warned of a failing organisation along the lines described by ACHR.  Most recently, on 16 November 2010, a donor evaluation of OHCHR-N, carried out by respected independent human rights experts, once again echoed ACHR’s concerns regarding both performance, the implications of the withdrawal of field offices, and the imperative on new leadership to turn things around. It warned very clearly that a further leadership gap was ‘something OHCHR cannot afford to repeat’.

The HC’s response to these concerted expression of concerns raises further concerns.  The recruitment process for a new Country Representative has been quietly suspended.  This has been followed by the suspension of the appointment process for a Deputy Head of Office, meaning that whoever is in charge must focus not just on substance but equally be diverted by the time-consuming responsibilities of internal management. On January 10th the former Deputy Head took over as what has been obliquely described in the press release as ‘the Head’. The phrase ‘Country Representative’ is oddly absent.  What status the HC has granted the Head remains unclear.

In a media release on 20 January, in a move that has to have been approved by OHCHR Headquarters, OHCHR-N announced that: ‘OHCHR’s principal focus is to work closely with the Office of the Prime Minister and Council of Ministers in supporting the three-year National Human Rights Action Plan.’ (NHRAP)

This represents a very major policy shift and deserves examination. ACHR has real concerns about the political wisdom of the UN associating itself so unconditionally with the launch of a three year plan designed by a caretaker government of dubious constitutional legitimacy, headed by an unelected Prime Minister, dominated by the military and a clearly time limited expiry date.   

From a substantive point of view the policy runs counter to the recommendations of OHCHR-N's donor evaluation that underlined that such initiatives should not be a priority for OHCHR-N on the basis that:  ‘Unfortunately, the responsible state organs in Nepal lack sufficient political will to resist pervasive patronage networks.’  In the current context, where both the government and the Maoist opposition have actively supported measures that buttress impunity, the UN approach to the government on human rights issues and projects should be both cautious and conditional.

In the early 2000s, UNDP attempted to make a NHRAP the ‘principal focus’ of human rights activities in Nepal.  The NHRAP became the focus of a struggle in both the national and international community over how to address Nepal’s deteriorating human rights environment. The initiative failed. And it is broadly accepted that this was because responsible state organs in Nepal lack(ed) sufficient political will to resist pervasive patronage networks. External evaluation in 2004 warned of the NHRAP’s potential to be used by the government as ‘an alibi for further violation’.

The new strategy that emerged sought to establish an international presence of human rights monitors; what was eventually to become OHCHR-N.  In short, OHCHR-N’s establishment was based on an explicit rejection of what now has been announced as the OHCHR-N’s ‘principal focus’ and other cosmetic gestures of that ilk.

What failed then, will fail now. The earlier NHRAP failed at a time of greater respect for human rights, stronger institutions and greater checks and balances than are currently available in Nepal. 

Just as its predecessor became the Royal regime's principal defence for its appalling human rights record, it seems likely that the NHRAP will figure in the Government’s defence as it faces the Universal Periodic Review (UPR) in the UN Human Rights Council over the next few days from tomorrow i.e. 25 January 2011.

Whatever the content of this new NHRAP (and the only NHRAP available on OHCHR's website is the rejected 2004 version) the reality is that NHRAP, in the absence of political will to resist pervasive patronage networks, will function as a tool to cover up government failure; effectively an alibi for further violation.

OHCHR-N's support for the NHRAP is at best wrong-headed, and indicative of institutional crisis. If radical change is not announced, ACHR and many others in civil society will advocate for its closure.  It is equally unclear why donors should support what increasingly looks like some expensive folly.

It is time for a public debate in Nepal on how to tackle Nepal’s deteriorating human rights environment. It is a debate that should start within Nepal and Nepal’s donors should support this. But equally it would also appear an appropriate time for Nepal’s main human rights donors, as a group, to examine their priorities and strategies. They too need to urgently examine what has been achieved and what has not. They further need to examine a coordinated response to an uncertain future. There are five months until the renewal of the mandate. The UPR review would appear an appropriate place to take stock.