Saturday, February 16, 2013

Torture in Nepal: Practice and Challenges





“Dhol, Gawar, Shudra, Pashu, Naree,  Ye sab Tadan ke adhikari.
Drum, Illiterates, Dalits, Animal and Women are entitled to torture.
The lines explain how traditional Hindu society takes torture as commonly usable method to tame others.

Torture had three facets; Traditional, Structural and Domestic. The fourth; Globalization has been added under the titles of global Security and fight against Terrorism.

Background
Nepal is the party to Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment CAT ratified on 14 May 1991, and the Interim Constitution of Nepal criminalized torture in 2007, there has yet to be a separate and specific act for criminalizing torture. It has not ratified the optional protocol (OPCAT) in spite of strong demand from the civil society. Nepal is one of the first 7th countries of the world that  expressed commitment against  torture .Nepal had extend support when Sweden proposed a resolution against torture in the third committee on the UN general Assembly  in 1973 . After more than two decades of continuous pressures from human rights community, the “Torture, Degrading Treatment, Punishment and Compensation Act 2012,” which criminalizes torture, has been registered at the Parliament Secretariat.

In the political life of Nepal, Civil Society led by Human Rights Defenders has been instrumental in all political changes. That was the reason of ratification of most important human rights convention in 1991 by the interim government after dawn of democracy. But same thing could not happen after second Peoples’ Movement of 2005, which has brought drastic changes in the political life of Nepal; by declaring Nepal Republic and Federal. It shows how adamant are the political players towards correcting the predecessors culture and state structures of delivery of justice.

This law fails to meet normative standards to prevent torture. The main objective of the law is to compensate torture victims in a very limited way, not prosecute the perpetrators. The legislative framework in Nepal is does not have any additional provisions to prevent torture. It is not mentioned in the existing criminal law in the country.

Witness protection:
There is no witness protection law in Nepal. To make matters worse, it is neither a practice of the courts in the country to ensure any form of protection to the witnesses or to the victims when an accused is released on bail in a criminal case. It is common practice in Nepal for the accused in crimes, to intimidate and threaten witnesses and victims.

Nepal conflict Report
Recent document by OHCHR titled Nepal Conflict Report studied 9000 Cases based primarily on the Human Rights Documentation by several Nepali NGOs, National Human Rights Commission (NHRC) and Victim Profile posted by INSEC, has been instrumental to establish that the culture of torture was rampant during the decade old ‘Peoples’ War’. Most of the cases during that period fall under the War-Crime, thus considered Serious Crime against Humanity. The conflict report submits that out of 14000 cases 9000 were of very serious nature and attracts immediate redressed and justice. In the name of ‘People’s War’ by Unified Communist Party) UCPN (Maoist) and security by Security personnel serious crimes were conducted against perceived opponents and so-called informers ranging from heinous killing, torture, rape (molestation, maiming) and what not. Nepal law does not have any restriction on torture except that the victim is entitled to get relief if tortured within government custody. The worst form of torture is found within family. Domestic violence against women happens to be the biggest challenge. Surprisingly domestic violence is on rise every year where women are targeted victims. Cases of rape proves that our society have adopted Man-Hood as most cruel disorder.
Nepali Colonel Lama serving in UN Peace corps in South Sudan was arrested by British Government on 3rd January 2013 on the charge of torturing civilians during his command in 2005 at a district called Kapilvastu, the birth place of Lord Buddha. After his arrest we noticed hue and cry by the Prime Minister and his Party Chief Comrade Pushpa Kamal Dahal. They framed that none of the cases relating with conflict era should be examined by criminal justice system be it related with State or the Rebels. It gave an account of fantastic partnership of rebels and rulers.
Lack of accountability
Although torture is not a specific crime in Nepal, the Nepali government is bound by international law to ensure that serious international crimes such as torture are investigated and those responsible are prosecuted. The failure to prosecute these cases also contradicts the Nepal government’s public pronouncements about delivering justice for wartime atrocities and orders of the Nepali Supreme Court to investigate and prosecute wartime abuse cases. Several people alleged to be responsible for these abuses from both the Nepali security forces and the former Maoist insurgents have been promoted, some to positions in which they can directly interfere in criminal investigations[2].

Torture Still Continues
The perpetrators of the human rights violations continuously enjoy impunity and victims are routinely denied justice. This has only strengthened the culture of impunity and lowered the people’s confidence in the potential success of the People’s Movement. Popular calls for a comprehensive transitional justice mechanism have also been ignored. Nepal has witnessed a number of commissions of enquiry that have been empowered to investigate and reveal the facts of human rights violations; yet not a single recommendation has been implemented.[3]

The custodial torture has significantly increased in the percentage as per the latest reports. This increase is due to the ongoing political instability in the country and growing activities of armed groups in several districts of Terai region. Among others, there has been a significant increase in the percentage of torture on female detainees According to Advocacy Forum an organization documenting custodial torture in 5 thousand cases they monitored in 57 districts it is found that more than 35% were tortured in police custody. In 2011 and 1012 average tortured victims in custody is Male 22% and Female 12%. It is astonishing that 34% of the children in custody have been inflicted torture out of 474 cases.


Conclusion and recommendations
All victims of torture require a comprehensive holistic treatment from a multidisciplinary team to achieve complete reparation/rehabilitation. The government of Nepal should take immediate action to have a mechanism for reparation of victims of torture as Nepal has ratified the Convention against Torture; Torture is not considered as a criminal offense thus the law enforcing agencies are enjoying complete impunity. Nepal should take effective procedure to prosecute those responsible for “widespread and deliberate practice of torture” in coming days.

Upholding the value of Human Dignity, Pluralism and Human Rights can only make us free from fear and infliction of torture. Merchandising of politics and Globalization of Market has given free hands to the perpetrators.  Reforming values, upholding rule of law and solidifying people’s awareness can only bring solution.

For more information:


Informal Sector Service Centre (INSEC)
Kalanki, Syuchatar
P.O. Box 2726, Kathmandu, Nepal
Tel: +977-1-4278770 Fax: +977-1-4270551









[1]Paper Presented at the two day meeting of South Asia Network against Torture and Impunity (SANTI) at Bangladesh about the State of torture in South Asian countries, held on22-23 February 2013.


[2]http://www.hrw.org/news/2013/01/04/nepal-warning-rights-abusers
[3]http://nepal.ahrchk.net/pdf/AHRC-FP-011-2007-Nepal.pdf

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