UPDATE (Nepal): Progress stalled in the investigation of Arjun Lama’s disappearance

Dear friends,

The Asian Human Rights Commission (AHRC) wishes to draw your attention on the necessity to continue and increase pressure to see that the perpetrators of Arjun Bahadur Lama’s abduction and murder are held accountable for their actions. Arjun Bahadur Lama was abducted on 29 April 2005 by cadres of the Communist Party of Nepal (Maoists) in Kavre District and it was later found that he had been killed. Due to the persistence of his wife with the support of Advocacy Forum, the Supreme Court of Nepal ordered that a formal complaint should be filed against the six Maoist cadres allegedly involved in his murder. 

Nevertheless, since that date, the uncooperative attitude of the Maoists party has hampered the progress of the investigation. 

The US Embassy in Nepal recently refused a visa to one of the main accused in this case, Agni Sapkota, a central committee member and member of the Constituent Assembly. Following this decision, members of the Maoist party have threatened the lawyers involved in this case.

UPDATED INFORMATION: 

In two previous urgent appeals, the Asian Human Rights Commission (AHRC) reported on the struggle of Arjun Bahadur Lama’s widow to get justice for her husband’s enforced disappearance. Arjun Bahadur Lama, a secondary school management committee president, was abducted from his school by the members of the United Communist Party of Nepal (UCPN) (Maoists), on 29 April 2005, at the time of the conflict between the Maoists and the Government during the monarchy in Nepal. His abduction took place on the day he was elected as the chairperson of the School Management Committee. Three of the Maoist abductors were identified as Mr. Yadav Poudel, Bhola Aryal and Karnakhar Gautam. According to the information gathered Arjun Bahadur Lama was taken to different places in Kavre District, and then was recruited into Maoists’ militia for armed training in the first week of July 2005. He was later handed over to Agni Spakota, a central committee member. It learned later learnt that Mr. Lama had been killed, allegedly on the orders of Agni Spakota and his body was found buried at Charkilla of Budhakhani Village Development Committee (VDC) in the Kavre district. An investigation conducted by the National Human Rights Commission also concluded that the victim had been arrested by the Maoists and was ‘deliberately’ killed.

In an urgent appeal issued in 2007 (UA-222-2007), the AHRC reported the difficulties that the victim’s widow was facing with the police who refused to file an FIR (First Information Report) regarding her husband’s disappearance. In March 2008, the Supreme Court ordered the Karepalanchowk District Police Office to register an FIR in relation to the case of Arjun Bahadur Lama. However, it still took five months for the DPO to register the case, which was eventually done on 11 August 2008. A murder case against six Maoists, including Agni Sapkota, was registered. In its previous appeal the AHRC expressed its concern that the case may not be investigated properly (For further details, please see: AHRC-UAU-055-2008).

In that process, the attitude of the Maoist party went beyond adopting a non-cooperative attitude with the police investigation. After the abduction, the Maoists party refused to give information to Arjun Lama’s widow about his whereabouts. In December 2005, a press conference was held in which the Maoists claimed that Arjun Bahadur Lama had been killed in the aftermath of an aerial attack launched by the Nepal Army. After the Supreme Court’s decision, the UCPN-M cadres organized a press conference in which they threatened the human rights defenders and lawyers involved in the case. As a Central Committee Member, Agni Sapkota is a hierarchical superior of the Maoists operating in Kavre District which may account for the unwillingness of the junior members of the party to cooperate with the police investigation.

The latest developments in the investigation of Arjun Lama’s abduction have been documented in two reports published jointly by Advocacy Forum and Human Rights Watch: Waiting for Justice and Still Waiting for Justice, released in 2008 and 2009 respectively.

According to the information received from Advocacy Forum, following the important attention and the tremendous pressure that this case has received, the police have conducted some investigation into this case. However, the results have been limited and they have proved unable to localize and arrest the suspected perpetrators. In May 2009, the police reportedly interrogated some witnesses and the District Police Office of Kavre asked the Area Police Station, Fokshingtar, Kavre district to write a report about the incident.

The DPO claims that it received information regarding the case from the area police station but has not revealed the content of the information to any rights organisation whenever they try to communicate with the police. We are further informed that the District Police Office of Kavre has asked the Area Police Station, Fokshingtar, Kavre district to trace out the burial site on 22 April 2010. Nevertheless, the investigation continues to be very slow. The slow-pace of the police investigation and lack of commitment to uphold rule of law ultimately helps the perpetrators to enjoy impunity, by avoiding prosecution.

Moreover, Agni Sapkota, who has allegedly ordered the execution of Arjun Bahadur Lama, is now a member of the Constituent Assembly.

In June 2010, the American Embassy in Kathmandu announced that it had refused to issue a visa to Agni Sapkota who was supposed to take part to a seminar in the US on the grounds of ‘serious and specific human rights allegations associated with his conduct during the insurgency’.

}Following this decision, the chairman of the Maoists party dismissed the accusations held against Agni Sapkota as ‘false’ and publicly accused international human rights organizations of conspiring in order to defame the Maoists party.

The AHRC is further informed that the representatives of the UCPN-Maoists have threatened and intimidated the lawyers and human rights defenders involved in Arjun Bahadur Lama’s case, in an attempt to discourage them from pursuing it further.

BACKGROUND INFORMATION: 

During the decade-long Maoist insurgency, Nepal topped the list of countries with the most disappearances according to the data of the UN Working Group on Enforced and Involuntary Disappearances in 2003-2004. Following its 2005 country visit to Nepal, the Working Group wrote that ‘The phenomenon of disappearance in Nepal today is widespread; its use by both the Maoist insurgents and the Nepalese security forces is arbitrary. Perpetrators are shielded by political and legal impunity.’ According to the National Human Rights Commission, the human rights body has received more than 3000 complaints of disappearances during and after the conflict.

The signature of the Comprehensive Peace Agreement (CPA) did not put an end to the sufferings of the families of the victims. According to the ICRC, the whereabouts of about 1,300 persons are still unknown. Although the CPA and the 2007 Interim Constitution mandates the government to adopt legislation on enforced disappearances, the law is yet to be adopted. The Interim Constitution of Nepal mandates the government to ‘provide relief to the families of the victims, on the basis of the report of the Investigation Commission constituted to investigate the cases of disappearances made during the course of the conflict’. In November 2009, a bill was approved by the Council of Ministers and brought before the Parliament. Despite several amendments which have made the bill far better in terms of human rights standards in comparison to the initial draft released in October 2008, it still contains provisions which are not up to international standards. For instance in its latest report, the OHCHR-Nepal has regretted that the definition of disappearances as a crime against humanity was still not included in the bill and that the bill kept a restrictive 6-month limitation to file a case of enforced disappearances.

In clear contradictions to the UN General Assembly Declaration on the Protection of All Persons from Enforced Disappearances, the Nepal Army and the Maoists have equally adopted an uncooperative attitude to prevent the progress of investigation and the prosecutions of their members. The lack of strong political will to ensure the accountability of conflict-related violations and the general weakness of the post-conflict criminal justice institutions have further strengthened the de facto impunity which surrounds the conflict-related human rights violations in Nepal and prevents the family of the disappeared from learning about their whereabouts. The report published jointly by Advocacy Forum and Human Rights Watch, Still Waiting for Justice, documents 62 cases of conflict-related human rights violations in which justice is still to be granted to the victim’s families.

ADDITIONAL COMMENTS: 

The article 13 of the UN General Assembly Declaration on the Protection of All Persons from Enforced Disappearances

provides indications regarding the procedure to be followed in cases of forced disappearances:
– Each State shall ensure that any person having knowledge or a legitimate interest who alleges that a person has been subjected to enforced disappearance has the right to complain to a competent and independent State authority and to have that complaint promptly, thoroughly and impartially investigated by that authority. (…) No measure shall be taken to curtail or impede the investigation.
– Each State shall ensure that the competent authority shall have the necessary powers and resources to conduct the investigation effectively, including powers to compel attendance of witnesses and production of relevant documents and to make immediate on-site visits.
– Steps shall be taken to ensure that all involved in the investigation, including the complainant, counsel, witnesses and those conducting the investigation, are protected against ill-treatment, intimidation or reprisal.
– The findings of such an investigation shall be made available upon request to all persons concerned, unless doing so would jeopardize an ongoing criminal investigation.
– Steps shall be taken to ensure that any ill-treatment, intimidation or reprisal or any other form of interference on the occasion of the lodging of a complaint or during the investigation procedure is appropriately punished.
– An investigation, in accordance with the procedures described above, should be able to be conducted for as long as the fate of the victim of enforced disappearance remains unclarified.’

SUGGESTED ACTION:

Please join us in writing to the authorities listed below to ask for concrete progress in the investigation of this case.

Please be informed that the AHRC is writing separate letters to the Working Group on Enforced Disappearances and Special Rapporteur on Situation of Human Rights Defenders, asking for their intervention in this case.

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