NEPAL

Winds of change: Will they bring peace?

Peace talks must create a foundation for genuine human rights reform and accountability

ON 29 January 2003, the people of Nepal breathed a collective sigh of relief. After seven years of waging what they referred to as a "People's War", the Communist Party Nepal (Maoist) announced a much-needed cease-fire. There has been initial contact between the Maoists, King Gyanendra, and the political parties. Most observers are optimistic that these talks will succeed where the past three have failed. The leaders of Nepal's numerous political parties should make sure that the current peace talks create a foundation for genuine human rights reform and respect for the rule of law.

If any new developments are to be undertaken in the name of the people of Nepal, then the cycle of guerrilla violence and brutal state repression must be stopped and accounted for as soon as possible.

The project of ensuring that the human rights perspective is respected and assured during the dialogues is complicated by the fact that the two major players, the Maoists and the King, were also responsible for the gravest human rights abuses during the period of insurgency.

When the Maoists declared the ‘People's War’ on the Government of Nepal on 13 February 1996, they called for the abolishment of the constitutional monarchy and the establishment of a "genuine people's republic." In general, there is a consensus that the root causes of the ‘People's War’ lay in chronic social and economic ills such as poverty, unemployment, and endemic social discrimination resulting from the caste system and gender biases. Decades of foreign aid programmes (foreign assistance accounts for nearly 60 percent of Nepal's investment budget) had resulted in few improvements in the living conditions of most Nepalese, and government corruption had become the norm. The Maoists were hardly manufactures of discontent; rather they articulated the common sentiment of a need for social change and moved rapidly into a political vacuum that was left from numerous political squabbles between the monarchy and elected political parties.

The Maoists' tactics, however, relied equally on the use of violence, extortion, coercion, and psychological harassment. They engaged in widespread destruction of vital infrastructure such as district offices, community centres, power installations, roads, and schools. They regularly abducted and tortured suspected "spies" for the Royal Nepal Army. These suspected spies were frequently executed, sometimes by decapitation with a traditional long-bladed khukri knife. Wives, sisters, mothers, and female children of the Maoists' perceived enemies faced physical harassment or rape.

Despite the Maoists' claims to the contrary, it is also clear that they recruited children into their fighting cadres. Although they usually did not occupy combat positions, they did serve as messengers and carriers of bombs and explosives. Much of the funding for the Maoist fight came from levying a heavy tithe on all families within a given village or district. Those families that objected or refused to pay the requested amount faced the prospect of violent physical retaliation. Members or suspected members of the Nepal Congress Party, one of the major elected political parties in Nepal, were also frequent targets of Maoist attacks and harassment.

The Nepal Government and security forces responded to the Maoist insurgency by constricting the democratic space in Nepal and undermining constitutionally guaranteed procedures involving the rule of law. It is clear that as the Maoists gained in strength, numbers, and in geographical advantage, the response of the under-prepared Royal Nepal Army became increasingly defensive  and punitive.On 26 November 2001, King Gyanendra declared a state of emergency in accordance with Article 115 (1) of the Nepal Constitution. The King used his Constitutional powers to mobilise the army and the Maoists were declared "terrorists".

Articles 12, 13, 15, 16, 17, 22, and 23, all pertaining to people's fundamental rights, were suspended. Article 12(2) guarantees the rights to freedom of opinion and expression, freedom of peaceful assembly, and freedom to move throughout the kingdom. Article 13 provides for freedom of the press and of publication. Article 15 guarantees the right not to be held in preventive detention. Article 16 guarantees the right to information, and Article 17 provides for the right to own and dispose of property. Article 22 provides for the right to privacy. Lastly, Article 23 guarantees the right to Constitutional remedies.

In accordance with the recommendation of his Council of Ministers, King Gyanendra also issued the Terrorist and Disruptive Activities (Control and Punishment) Ordinance 2001 (TADO). TADO became a means for unlawfully detaining and torturing numerous suspected Maoists and journalists, lawyers, and human rights defenders. Although the right to file a writ of habeas corpus was not suspended under the state of emergency, human rights attorneys in Nepal will assert that most writs of habeas corpus were either rejected outright or allowed to languish indefinitely during the state of emergency.

Many individuals detained under TADO were minors, and many are still missing even months or years after the date of their (often undocumented) arrests. Several individuals who were released due to a successful writ of habeas corpus found that they were re-arrested minutes or hours after their "release."

Freedom of the press was curtailed, and several Maoist publications were shut down. Journalists who attempted to cover the growing violence between the Maoists and the security forces now faced the possibility of torture and arbitrary detention from both sides of the conflict.

Extrajudicial and summary executions became all but de-facto state policy in attacking the Maoist insurgency.

The Informal Sector Service Center (INSEC) of Nepal estimates that 81 percent of the killings that occurred during the emergency, which lasted from 26 November 2001 to 28 August 2002, occurred at the hands of the state.  After the state of emergency ended, the number of killings decreased, but the percentage that was killed by the state remained significantly higher than that killed by the Maoists.

The conflict with the Maoists has coincided with a decade of political instability in Nepal. A new democratic constitution was created in 1990, re-establishing the multi-party system of elections for the first time in nearly 30 years. The panchayat system, under which the king had sole power over non-party government councils (or panchayats), was abolished. Then King Birendra agreed to allow Nepal's government to become a constitutional monarchy in more than just name. The Nepali Congress Party (NC) won the first elections and Girija Prasad Koirala became Prime Minister in 1991. However, three years later, Koirala's government was defeated in a no-confidence motion and the Communist Party Nepal (United Marxist-Leninist) (CPN (UML)) came to power. In 1995 the government was again dissolved, and at this time the Maoists began their insurgency in certain rural districts of Nepal. By 2000, when Koirala returned as Prime Minister for the third time, he was the ninth prime minister to head the Nepal Government in ten years.

In April of 2001 the Maoists called their first Nepal bandh and brought the nation to a standstill with a general strike. On 1 June 2001, King Birendra and several members of the royal family were killed; it has been alleged that Crown Prince Dipendra opened fire inside the royal palace moments before taking his own life. In May 2002, the Maoists called another general strike, this one lasting for five full days. The new King Gyanendra dissolved Parliament that same month and Prime Minister Deuba, first expelled by his Congress Party and then welcomed back as head of the interim government, renewed the state of emergency. Although the interim government had promised elections by November 2002, in October 2002 King Gyanendra dismissed Deuba and announced that elections would be postponed indefinitely. Lokendra Bahadur Chand, of the royalist Rashtriya Panchayat Party (RPP), was appointed by the King to head the government until elections are held.

The parties in the present dialogue are a mix of monarchists (the King), militant Marxists (the Maoists), elected Marxists (such as the recently renamed Communist Party of Nepal (United Marxist-Leninist)), and elected liberals (such as the Nepal Congress Party). The King currently has the advantage of controlling the Prime Minister and cabinet, and the Maoists are currently at a military advantage, but the political parties must be included in the peace process if Nepal is to maintain any semblance of respect for democracy and its elected officials.

In previous dialogues, the Maoists submitted several demands to the government: (1) the creation of a new constitution; (2) the formation of another interim government by dissolving the present government; (3) the creation of an institutional republican state; (4) abolition of "unjust" treaties between Nepal and India; (5) opening the border between Nepal and India; (6) making the work permit system effective. It has since excluded the demand of a republican state. There is evidence that they may also be willing to compromise on issues involving India. Almost all parties are in agreement that the constituent assembly, the Maoists' main priority, is a necessary element. In this it appears that many Nepalis' optimism at the present talks is not misplaced.

Yet, given the seriousness and the frequency of human rights abuses that have occurred throughout the conflict, it is important that a code of conduct (or cease-fire agreement) not get lost in the political shuffle. Human rights NGOs and the National Human Rights Commission of Nepal have drafted excellent documents that could be used as a blueprint for sustainable peace.

The likelihood of the agreement's success would increase greatly with the presence of international human rights and humanitarian monitors or mediators. Some international actors have previously displayed a preference for military aid and weapons distribution; those with true concern for the people would do well to pay attention here.