Nepal: Community mediation - boon or bust?
|Publisher||Integrated Regional Information Networks (IRIN)|
|Publication Date||5 July 2012|
|Cite as||Integrated Regional Information Networks (IRIN), Nepal: Community mediation - boon or bust?, 5 July 2012, available at: http://www.refworld.org/docid/4ffec1c02.html [accessed 13 February 2016]|
|Disclaimer||This is not a UNHCR publication. UNHCR is not responsible for, nor does it necessarily endorse, its content. Any views expressed are solely those of the author or publisher and do not necessarily reflect those of UNHCR, the United Nations or its Member States.|
Community mediation as an alternative to the formal justice system is gaining momentum in Nepal, revealing its successes and its shortcomings in a country without a constitution and an increasingly protracted transition out of a decade-long civil war.
A 2008 report by the Geneva-based NGO, International Commission of Jurists (ICJ), found many Nepalese living in "governance, law enforcement and justice vacuums - much more pronounced than in the period before the conflict".
The civil war between Maoist insurgents and the government killed almost 18,000 people between 1996 and 2006, according to recent government estimates.
"Disputants' rights to a timely remedy are not being respected by the formal justice system," said Frederick Rawski, the ICJ representative in Nepal. "This certainly has a role in affecting the support-seeking behaviour of communities."
Procedural and managerial issues make the country's justice system - which has only one court per district, or 75 in total - cumbersome, time-consuming and expensive. Official statistics list eight out of 10 people as living in remote areas, and 12 districts still have no access to roads.
Courts are virtually inaccessible to a large percentage of the country's 27 million people, particularly the rural poor and the marginalized, said a 2009 US Agency for International Development (USAID) assessment of the rule of law in Nepal.
Nepal has a long history of traditional arbitration, and community mediation builds on this, said Mukti Rijal, of the Institute of Governance and Development, a Kathmandu-based NGO. Traditional village arbiters, at times seen as elitist, are being replaced by volunteer mediators.
"You now have mediators trained in negotiation, dispute resolution, and specializing in identifying the interests of disputing parties," said Rijal. In the past decade, local NGOs, with the support of the UN Development Programme (UNDP) as well as the UK and Japanese governments, have helped establish community mediation services.
"We're at the stage where cases and requests are coming in from neighbouring VDCs [village development committees, a unit of local government] where programmed mediation services are lacking," said Sundeep Bista of the Access to Justice programme run by UNDP.
"We must recognize the cost impact of the courts on an individual," said Ramesh Kumar Adhikari, Under-Secretary of the Ministry of Federal Affairs and Local Development. Nepal's annual per capita income is less than US$650 while legal fees in Kathmandu, the capital, can cost up to $1100 per case.
Community mediation programmes in dozens of village development committees are run by five donor agencies in Nepal, who usually require at least 30 percent of mediators to be women, and that members of marginalized ethnic groups such as Dalits, who are still widely viewed as an untouchable caste, are also included.
Less than 8 percent of registered legal professionals nationwide are women, according to 2009 data from the Nepal Bar Association. But as women mediators assume new leadership roles, they become trusted and respected members of the communities that may have ignored or shunned them.
"Women mediators are being selected by male disputants and are often the recipients of the Best Mediator awards [given by recently formed mediators' societies] because communities are acknowledging that it's the skills that are most important, not the sex or the caste," said Rijal.
Usha Malla Pathak, 42, has practiced mediation in the capital region for the past 10 years. "While it can be a difficult job, when I am able to successfully bring two disputing parties together… the community is thankful to me for facilitating the transformation - this kind of social prestige cannot be purchased."
Typical issues handled by community mediation include money and marital disputes, road and irrigation accessibility, theft, property inheritance and, increasingly, physical assault and domestic violence.
Taking a husband to court exposes a woman to family and community ostracism and can put their sole source of income at risk, said Rijal. The formal justice system is widely seen as patriarchal and an obstacle to enforcing women's rights, the ICJ's Rawski noted. Nepal has no dedicated family courts.
A recent report by the National Women's Commission of Nepal pointed out that a 2008 Supreme Court ruling extending the statute of limitation on prosecuting marital rape beyond 35 days has yet to be implemented.
The national parliament disbanded in late May this year due to political disputes. Many laws await final passage or enactment, but the Domestic Violence and Punishment Act (2008) allows victims to seek justice through mediation.
"Court decisions are very difficult to implement," said Rijal. "Community mediation is becoming popular because it's an interest-based, win-win system."
Risk of impunity
However, mediation - which does not seek prosecution - risks strengthening the impunity of people who perpetrate violence against women if police refuse to file a complaint and instead send them to mediation, said Kirti Thapa, of the Gender-Based Violence Unit at the Office of the Prime Minister and Council of Ministers.
More government oversight is needed to ensure mediation does not increase impunity in a country where "patriarchal values… are deeply entrenched", according to a report on access to justice, funded by the UK Department for International Development ( DfID). In cases of gender-based violence, "even if the case is reported to the police, priority is given for settling it within the family or community before taking it further."
The 2011 Mediation Act seeks to expand mediation services, but Kumar Sharma Acharya, of the local Centre for Legal Research and Resource Development (CeLRRD), said more groundwork is needed.
"The Mediation Act 2011 is an umbrella act that focuses mainly on court-referred mediation. The only chapter on community mediation lacks sufficient procedural provisions."
In 2012 CeLRRD conducted research on the effectiveness of court-referred and community mediation as opposed to formal justice. Acharya, an author of the report, cited a lack of political will to professionalize mediation, "reflected in the absence of a government agency directly responsible for its operational procedures and integration".
Donors and the government have expressed concern about how long a volunteer-based initiative can last. The USAID assessment noted that mediation was intended to lighten the courts' workload, but there is no clear evidence of it having shortened the waiting time for cases to be heard, or reducing the number of cases before the courts.