Transitional justice remains one of the thorniest issues that Nepal has been trying to tackle since the signing of the peace agreement in 2007. On August a breakthrough was reached when the three major political parties had reached a consensus on a long awaited national transitional legislation.
Even though Amnesty International had defined it as a flawed step forward, after years of endless political shenanigans that exasperated the thousands of citizens who had been seeking justice, it finally seemed that the peace process could reach its final phase. Yet, the latest incarnation of Selection Commission in charge of identifying the members of both the Truth and Reconciliation Commission and Commission of Investigation on Enforced Disappeared proved, once again, incapable of carrying out its mandate. It is still unclear how the situation will be unblocked.
Let’s not forget that the process of transitional justice should be about accountability but also reconciliation and healing. Can a new approach to this process make the difference and unite the whole country by undertaking a holistic process of national healing that goes deep to the root causes of the conflict? The concept of restorative justice offers a powerful set of principles that, if applied, could radically change not only the frames through which the civil war has been debated so far but also help transform the society.
The system in which we live and our mindsets that shape them have been consistently based on an idea of justice centered on persecution and punishment. Anyone committing crimes, not only those with long lasting damages and sufferance on the victims but also those of pettier nature, must be held accountable. It is possible to do so without giving up on the hope that the perpetrators can undertake a process of personal transformation and become better human beings. At the same time, the victims can find closure in their pursuit of justice not only through punishment of the former but through a process of healing.
Interestingly, Nepal is at the vanguard of incorporating restorative justice within its legal judicial system. To better understand what has been done in the country in this crucial area, I interviewed with Ram Tiwari, one of the most prominent experts on the issue in the South Asia and beyond.
Tiwari who is the Founder and Executive Director of the Nepal Forum for Restorative Justice, walked me through the key concepts of restorative justice and how its application in a variety of field.
History of restorative justice in Nepal
I started my interaction with him by asking when restorative justice was initiated in Nepal.
“In 2014 there was a South Asian regional forum with Supreme Court Justices from throughout the region. It was noticeable that the attitudes of Nepal’s Justices attending the proceeding was very positive to the ideas and principles of restorative justice.”
“Since then,” Tiwari continued, “we made strides as important progress was made since when we started”.
“Now we have three legislations on restorative justice that were enacted in 2018, 2021 and 2023 respectively and for example now, at least on the paper, the whole juvenile justice system incorporates, in principle, key aspects of restorative justice”.
“The challenge ahead is in the implementation”, Tiwari explained. “Moreover”, Tiwari further said, “a new set of legislation, the Restorative Justice Procedures is set to be finalized by May 2025 at the latest. Approving these regulations is going to be paramount because it could strengthen the whole judicial system of the country. “The Directives on Restorative Justice Procedures, is going to be the most comprehensive national document on restorative justice in Nepal”, Tiwari shared.
But how could restorative justice mark a drastic difference from the current practices?
It’s about seeking truth
“The current system does not reward the truth, the deep causes that led to the perpetuation of offenses and the consequent suffering and traumas that still affect the survivors of alleged crimes and their families” according to Tiwari.
“Restorative justice is already well understood and, at least partially, internalized within the judiciary but we are not yet marking turning point, making the whole justice system much more victim centric”.
Restorative practices would offer opportunities for the perpetrators to come to terms with their misdeeds by facing the root causes of their actions while also attempting to reconcile with the victims.
The potential of restorative justice is huge if you think about it but it is essential to acknowledge that Nepal is living a paradox.
On one hand, the nation is well positioned to bring change to the whole judicial system by incorporating restorative justice; on the other hand though, the same principles struggle to gain traction.
One of the problems according to Tiwari is that too often in Nepal some of the key concepts of the process of restorative justice are misunderstood.
“If we really want to embed restorative justice within Nepal’s transitional peace process, then we need to demystify several aspects that have been persistently proposed in the domestic arena when we talk about bringing to a real end the peace process”.
Getting reconciliation right
For example, reconciliation that is central to the whole restorative justice approach, is misinterpreted. “There is a misunderstood grasp on what reconciliation really is and its implications”, Tiwari explains.
“Reconciliation is often thought in terms of mediation and this can be problematic. There are certainly linkages between the two but it is essential to distinguish them also because in Nepal mediation has its own separate legislation” Tiwari explained.
“Second, when we talk about persecution, the whole focus is on the offender and the ways this person has to pay for the damage created”.
Persecution can be effective only in the prospective of reconciliation, if victims and offenders alike can have a chance to recount their stories and express their emotions in what should be a joint healing process.
“We need to unpack these key elements and we need to seriously go beyond the traditional narratives surrounding them”.
Third, reparations are often thought only in terms of money relief. This is incorrect as it is just a very narrow view.
“When we talk about reparations, immediately the debate is centered on financial aspects,” he told me. Instead, reparations should be framed in much wider terms and more holistically because monetary compensations won’t just alone heal the traumas and the injustices faced by a victim and her family. Tiwari realized that truly embedding transformative justice in the ways the current system work will require a paradigm shift. “Yet we need really to be bold in our thinking and yes, we really have to re-imagine our justice”.
According to him, restorative justice has the power to truly reframe the whole conversation about transitional justice. Tiwari explained: “Restorative justice can truly bring hope that both the harmed one and the culprits can re-set their lives anew. Obviously, it is not easy and such approach will require a whole holistic approach”. It does not mean, he clarifies, that such process of interpersonal reconciliation will be based on forging or re-establishing a relationship between offender and victim at any cost. Forgiveness, after all, he added, is always pursued in a true process of restorative justice even though it is not always achieved.
Restorative justice on the ground
One practical example on how restorative justice can unfold is through one on one or community meetings. “At the core of the process of restorative justice, there is the possibility that victims and perpetrators meet face to face”, Tiwari explained. “After all, we need to re-establish connection before correction”.
Bringing in restorative justice practices and centering the whole transitional peace process on it might create a more conducive environment in which perpetrators from both sides of the conflict will have to face accountability in a more human centered way.
This has not happened yet in Nepal, at least not through any state mechanism. The NFRJ organized in the past some pilots in Kailali and Bardiya districts in which parties from both sides of the conflict did meet face to face in restorative dialogues. So, a blueprint, a possible model for facilitating such process of healing has been already piloted. “Out of 826 victims that participated in the exercise, only 6 among them opted for persecution and indicatively enough, they were all from urban settings.” Storytelling is another essential element in the truth seeking component and it can be an effective tool for healing and can offer an important contribution towards memoralization of the victims.
“The upcoming work of the two commissions should effectively promote storytelling as a meaningful way to address the pain, the traumas victims have been suffering”.
“At the same time, it can be a way for the perpetrators to channel their own feelings and emotions as well”, Tiwari told me. The above-mentioned methodologies won’t reduce or water down the accountability aspect and this is a paramount issue to be understood. People might be induced to think of it as a way to escape from accountability, a sort of runaway for perpetrators to dodge justice.
Far from it according to Tiwari, actually the opposite applies, he shared. “Restorative justice can create the conditions for real accountability” he shared. “And let’s not forget that a more holistic understanding of accountability is an indispensable element to ensure healing between harmed and offenders”. “Forgiveness might not always be achieved but at least we need to enable people to achieve closure and tackle their trauma”, he further highlighted.
Restorative justice does not sidetrack or minimize the prosecution aspect of the whole accountability dimension but it can be instrumental in better acknowledging the victims. There is also another aspect that restorative justice can help highlighting.
The national narrative about those responsible of the crimes committed over the civil conflict have been almost entirely focused on the former rebels. There has not been much discussions, in the public sphere that also law enforcement agencies are responsible for some of the atrocities committed.
According to official data from the Government of Nepal, out of the 17886 victims officially recognized, 12 000 of them were perpetrated by state agencies. Perhaps there has been a complicit silence, a tacit willingness at not highlighting the alleged responsibilities of the state.
Bringing in restorative justice practices and centering the whole transitional peace process on it might create a more conducive environment in which perpetrators from both sides of the conflict will have to face accountability in a more human centered way.
It is important also to get it right that restorative justice is not only applicable in the context of the conflict between the State and the former Maoist rebels. Tiwari highlighted other key cycles of violence that occurred in Nepal in which restorative justice can help bring justice while also help heal communities affected and impacted by the violence. “For example” Tiwari explained me, “there have been unsolved questions related to the Madhesh Movements in 2007 and 2008 and also in relation to the Tikapur Massacre in 2015”.
“We tend to talk about big transitional justice but there have been also other forgotten conflicts and restorative justice can help bringing up the truths about these violent situations”
A tool for community harmony
According to John Braithwaite, one of the most renowned experts on the subject, “restorative justice is not just about crime; it is about peace and a way of bringing up our children that is less punitive and more decent. It is a holistic philosophy”. That’s why, one of the key priorities of NFRJ is to work not only within the juvenile justice sector but also with schools.
“On juvenile justice, there is still so much to be done. Despite the fact that the 2018 Act Relating to Children embraces restorative justice, it is not uncommon to read news about structural issues affecting the juvenile centers in the country”, according to Tiwari. “These problems”, Tiwari explained, “start from lack of use of appropriate pedagogical approaches in the centers to overcrowdings”.
A paper published by the NFRJ, explains: “While the law includes potential for parole, probation, restorative justice, and non-custodial measures, procedures and resources for implementation remain absent.” Restorative justice can also impact and benefit the public education system.
Working with children is indeed a priority. NFRJ has recently established a collaborative partnership with Ward 5 of Kathmandu Metropolitan City, a work centered on understanding dynamics related to family violence. This work with communities is centered on the concept of Pedagogy of Care that offers a counter view to the common practices based on ensuring discipline and punishment at any cost.
In a way, restorative justice, if applied at school level, could truly forge better learning environments rather than being seen as a remedy to solve and deal only with what we commonly but mistakenly refer as “problematic” children.
Will Nepal take the opportunity of leveraging the potential of restorative justice and truly bring to end a decade’s long conflict together with other latent, unaddressed situations of violence that till now have been, quite conveniently, ignored? Could the whole juvenile justice be reformed and drastically changed thanks to restorative justice? Could we even dare to challenge the traditional practices that still permeate too many local schools?
There are not certainly easy questions to these answers. Yet with a lot of imagination, hope and determination, a different way of bringing justice to the people is possible. He wrapped up his final thoughts with a provocation. “Restorative justice can be time-taking, but it works much better than the retributive systems of punishment. Should we keep doing the same because it’s easy or should we opt for change if it works even if it takes time?”
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