mercoledì 1 febbraio 2012

NEPAL: Delays in the implementation of UPR recommendations highlight the absence of a functioning democratic State.

February 1, 2012
On January 25, 2011, Nepal's human rights record was reviewed for the first time under the Universal Periodic Review mechanism. That mechanism was established by the UN General Assembly on 15 March 2006 through resolution 60/251 to "review the fulfilment by each State of its human rights obligations and commitments." On that occasion, peer countries raised concerns about ongoing human rights challenges and formulated recommendations to improve Nepal's human rights framework. Recommendations notably concerned ongoing reports of torture and violence by law enforcement agencies, persistence of gender-based violence, continuous caste-based discrimination, insecurity of human rights defenders in a context of overreaching impunity for past and present human rights abuses and with failing police and justice systems in the country. The government accepted a majority of those recommendations and therefore committed to take the necessary measures to turn them into concrete advancements in the human rights situation. The Government of Nepal has the primary responsibility to implement the recommendations it accepted as part of the review as the UPR ensures that all countries are accountable for progress or failure in implementing these recommendations
One year on, it is time to draw a first assessment of the state of implementation of those recommendations, as a measure of the government's commitment to the improvement of Nepal's human rights situation. We have found that the government has failed to take appropriate action in good faith and within an appropriate timeframe to translate most of the recommendations into concrete progress for the human rights situation of Nepal. Through 20111, hindrance of the peace and constitution-making process and reluctance to introduce accountability for conflict-related human rights violations have contributed to the fall of human right concerns low on the agenda of the government's priorities.

One year ago, the government committed to address the issues of torture, insecurity of human rights defenders and extrajudicial killings and to curb impunity. However, data has shown that torture has been on the rise since January 2011 , no steps have been taken to guarantee the security of human rights defenders and no investigation was launched into all allegations of extrajudicial killings. Perhaps more crucially, while Nepal has unconditionally committed to bring impunity to an end, the time elapsed since those commitments were taken has witnessed multiple attempts to suppress the rights to justice of victims of conflict-related human rights violations. Other recommendations relating to crucial issues to the development of a democratic and stable State have also so far been largely ignored.

This failure to improve Nepal's human rights record not only underlines government negligence toward the protection of human rights of the people it serves but more importantly points at larger institutional failures.
All recommendations, if they are to be implemented meaningfully, require institutional changes to foster the development of a strong and independent State capable of reaching out to all the citizens, throughout the country. Most of the recommendations relate to the substance of the functioning of State institutions and, if they are to be upheld, imply in-depth reforms to put concerns for human rights of the people at the heart of their functioning. The justice and policing systems still lack the strength, accountability and independence demanded from institutions supposed to safeguard human rights in a vibrant democracy.

For instance, torture will only be brought to an end provided intense reforms are undertaken to bring the police system effectively under the rule of law.  Introducing an independent complaint mechanism in order to bring an effective remedy to the victims of human rights abuses at the end of the security forces or adopting an independent police service commission to foster accountability in the appointment and promotion process of the police officers, strengthen its independence from political influence and curb corruption. Although those two elements have been specifically recommended, Nepal has not accepted those recommendations and a large debate is yet to emerge on those themes. In addition, in spite of commitment to criminalize torture in line with international standard, one year on a legal framework criminalizing torture and allowing the prosecutions of the perpetrators has not yet been adopted and strong concerns remain regarding the proposed draft legislation. (See our June 26 report "Criminalizing torture and bringing it to an end: a test for Nepal's democracy")
The relevant implementation of the UPR will further require an intense debate on the fundamental concept of justice and its centrality to the development of the Nepalese State. Although omnipresent impunity has been the major concern of the UPR and although Nepal took the strongest commitment to have a zero-tolerance policy toward impunity, multiple attempts by the government to shelter perpetrators of human rights abuses during the last year have revealed the emptiness of those commitments. Attempts to deny victims their fundamental right to a legal remedy, such as the recent recommendation made to introduce general amnesty in the Truth and Reconciliation Commission Bill are symptomatic of a State which flouts fundamental principles of justice and equality of all before the law. As far as wartime and present human rights violations are concerned, it is part of a series of interventions from the executive in judicial processes, in violation of one of the most cardinal dogmas of democracy: that of the separation and balance of powers. An independent judiciary with a strong and respected authority remains to be built. Many of UPR recommendations addressed that fundamental aspect and Nepal committed to ensure the implementation of all orders by the judiciary, to end political interference to facilitate the victims' access to justice. All those different elements imply to overhaul the justice system and its place in the institutional structure of Nepal.

Without in-depth reforms to ensure the independence and strength of the criminal justice system, attempts to protect the rights of the citizens of Nepal and implement "some" of the UPR recommendations would be at best patchy and ineffective. One of the major recommendations to be implemented by the government within this year has been the adoption of a law criminalizing caste-based discrimination. Nevertheless, efforts to ensure the smooth administration of justice for the persons affected by caste-based discrimination have been few and far between, as was underlined by an OHCHR report in December 2011 and the law has therefore made little difference in the everyday life of the Dalit community.

Moreover, the government approach so far to the UPR reflects the inadequacy of the human rights dialogue in Nepal at the moment and the lack of coordination among institutional stakeholders and the civil society, although indispensible if the country is to have a comprehensive human rights policy.

For instance, as of December 2011, the recommendations that the government had accepted and committed to implement had not been translated into the local language and diffused largely across the country making it more difficult for grassroots activists to monitor the implementation process.

In April, the government published a "National Action Plan on implementation of UPR recommendations" listing the activities to be undertaken to concretize the different recommendations and the government bodies in charge of the implementation. Although that initiative could be seen as a welcome move to comprehensively and in a coordinated manner address the recommendations made to ensure the success of the UPR process, the voluntary vagueness and lack of concrete commitments in the plan ensured its ineptness. It does not specify any timeframe for implementation of the recommendations other than "due course of time" or "on-going", nor does it provide with measurable indicators of results. Except in a handful of cases, it does not lay out specific activities to achieve the goal of the recommendations, but limits itself to paraphrase them. Civil society organisations were not consulted at the time of the formulation of the plan and merely "informed" of its content, in clear contradiction of Nepal's assertion that it "remains committed to engage the civil society and stakeholders in the promotion and protection of human rights".

We encourage Nepal's government to integrate initiatives from the civil society in its plan to implement those recommendations and to engage with civil society actors in every stage of the fulfillment of its international obligations. In particular, dialogue with the civil society should place the adoption of the UPR recommendations in the restructuring of the judicial and policing system. Only then would have the UPR proven a useful and meaningful exercise.

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