justice outcome evaluation report

UNDP NepalOutcome Evaluation of UNDP NepalAccess to Justice and Human Rights 2001-2010

Evaluation Team:Richard H. Langan IIIndu TulhadharRoshani Poydal

Final Report(Publication Version)

29 November 2010

UNDP Nepal Outcome Evaluation for Rule of Law, Access to Justice and Human Rights 2001-2010Final Report (Publication Version): 29 November 2010

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“The Evaluation Team wishes to thank the many individuals at UNDP Nepal, otherUN agencies and UNDP’s Donors and Partners who contributed their valuable timeand resources to this report, as well as the Government of Nepal. The evaluationwould not have been possible without the insights, advice, knowledge, contributionsand support of these individuals.”

Richard H. Langan IIEvaluation Mission Team Leader

29 November 2010


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Table of ContentsTopic Page(s)Table of Acronyms ivExecutive Summary v

1. Introduction and Overview 1

2. Methodology, Criteria and Scope of Evaluation 12.1. Terms of Reference 12.2. Approach and Methodology 12.3. Evaluation Criteria 2

3. Background and Context 33.1. Nepal: Poverty, Conflict and the Peace Process 33.2 Nepal’s Justice System: Background, Overview and Issues 2001-2010 43.3. Human Rights in Nepal 10

4. The Evolution UNDP Nepal Governance Unit: Rule of Law andHuman Rights Programming 2001-2010 13

5. Key Findings: UNDP’s Contribution to Establishing Responsive andAccessible Justice Systems to promote gender equality, social inclusionand the rule of law, including formal and informal processes in Nepal 2001-2010 16 165.1 UNDP Support to Courts and Mediation for Access to Justice 2001-2010 16

5.1.1. Overall capacity building of the Judiciary and Courts in Nepal 185.1.1.1. Adjudication 195.1.1.2 Court management 205.1.1.3. Criticisms of UNDP’s capacity building and training for courts

and the judiciary 2001-2010 215.1.2. The Pilot Court Programme and its Dividends 225.1.3. Court-referred Mediation 285.1.4. Legal Aid in Nepal and UNDP supported Legal Aid Desks for Women 33 325.1.5. Community-based Mediation 365.1.6 Para-Legal Committees (PLCs) 38

5.2 Assessment of UNDP Contribution to the Outcome via its Supportto NHRC 2001-2010 445.2.1. UNDP Support to NHRC Infrastructure, Organization and

Operational Capacity 2001-2010 445.2.2. UNDP/OHCHR Support to NHRC Human Resources and Staffing 485.2.3. The Implementation of NHRC Recommendations 2001-2010:

Key Challenges and “roadblocks” 495.2.4. Other substantive issues pertaining to NHRC monitoring of

human rights in Nepal 535.2.5.UNDP Support to NHRC Outreach and Advocacy 2001-2010 555.2.6. UNDP Support to NHRC Treaty Monitoring and

Legislative Activities 2001-2010 565.2.7. Overall level of “ownership” by NHRC of the UNDP projects

and contribution 565.3 Assessment of UNDP’s advancement of the Outcome via its support to

the legislative process and the review and amendment of existing legislation 58


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5.3.1. Reform of Legislation to Conform to Nepal’s International 58Human Rights Treaty Obligations

5.3.2. Legislative Initiatives (Civil Code; Code of Civil Procedure;Penal Code; Code of Criminal Procedure) 62

6. Assessment of Synergies between UNDP RoL/A2J/Human Rights andSupport to Peace 2001-2010 and beyond 676.1 Evaluation of Synergies between A2J and Peace Building 2001-2010 676.2 New synergies expected to arise between UNDP A2J and

Peace Building during Constitutional drafting and after a newConstitution is adopted for Nepal 69

7. UNDP Rule of Law Contribution to MDGs and Legal Empowermentof the Poor in Nepal 73

8. UNTC/“1-UN” Rule of Law coordination in Nepal 74

9. Contribution of UNDP CO to the Outcome 77

10. UNDP’s Relations with its Donors and Partners and Donor Coordinationin the RoL/Human Rights Sector in Nepal 2001-2010 81

11. Conclusion: Summary of UNDP advancement of the Outcome andFuture directions for UNDP A2J and human rights programming in Nepal 83

12. Lessons Learned 87

13. Recommendations 88A. Strategic Recommendations 88B. Programmatic Recommendations 91

ANNEXA UNDP UNDAF, CPAP and RRF Outcomes and outputs 2001-2006,7

and 2008-2012 programming period ANNEX Page 1B Statistical tables relating to Case Dispensation and back-log in Courts

And UNDP Community-based justice initiatives (mediation and PLCs) ANNEX Page 9C International Instruments and Domestic Legislation of Nepal: Analysis ANNEX Page 31D JICA’s Comments on Nepalese Civil Law Reforms

and Improvement Taskforce ANNEX 4E DRAFT Mapping of Key Activities of UNCT in Nepal on Rule of Law ANNEX Page 47F Factsheet on the Centre for Constitutional Dialogue (CCD) ANNEX Page 51G Evaluation Team Schedule of Meetings Conducted in Nepal ANNEX Page 53H Terms of Reference Outcome Evaluation ANNEX Page 62


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Table of Acronyms

A2J Access to JusticeBCPR Bureau of Crises Prevention and RecoveryCA Constituent AssemblyCBO Community Based OrganizationCCD Centre for Constitutional DevelopmentCDO Chief District OfficerCEDAW Convention for the Elimination of Discrimination Against WomenCERD Convention for the Elimination of Racial DiscriminationCO Country Office (UNDP)CoED Commission on Enforced DisappearancesCPA Comprehensive Peace AgreementCPAP Country Programme Action PlanCPD Country Programme DocumentCPN/M CPN MaoistDANIDA Danish International Development AgencyDFID Department for International Development (U.K.)GoN Government of NepalICCPR International Convention for Civil and Political RightsICESR International Convention for Economic and Social RightsICN Interim Constitution of NepalINGO International Non-Governmental OrganizationJICA Japanese International Cooperation AgencyLGBT Lesbian Gay Bi TranssexualMoLJ Ministry of Law and JusticeNDC National Dalit CommissionNGO Non-Governmental OrganizationNHRC National Human Rights CommissionNWC National Women CommissionOAG Office of the Attorney GeneralOHCHR Office of the High Commissioner for Human RightsOPMCoM Office of the Prime Minister Council of MinistersPLC Paralegal CommitteePWD Persons with DisabilitiesRCO Resident Coordinator’s OfficeRoJ Rule of LawROLCRG Rule of Law Coordination and Resource GroupRRF Results Resource FrameworkToR Terms of ReferenceTRC Truth and Reconciliation CommissionUNDAF UN Development Assistance FrameworkUNDP United Nations Development ProgrammeUNICEF United Nations Children’s FundUNMIN UN Mission in NepalUNPFN UN Peace Fund for Nepal


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Executive Summary

Objective and ScopeThe Evaluation Mission that produced the instant report of UNDP Nepal’s Rule of Law, Accessto Justice and Human Rights Programming 2001-2010 (inclusive of all outputs as of August2010). In addition, the UNDP Nepal Country Office (CO) requested that the Evaluation Missionexplore synergies between access to justice and peace initiatives; make observations andrecommendations for enhanced coordination with the UN Country Team (UNCT); and prioritizeUNDP rule of law, access to justice and human rights programming in preparation for drafting bythe CO of the next UNDAF and CPAP for Nepal.

The CPAP 2008-2012 Outcome that is the basis of this Evaluation is “Responsive and accessiblejustice systems to promote gender equality, social inclusion and the rule of law, including formaland informal processes.”

UNDP’s prior programming frameworks reflected much the same goals. The CCF-2 (2002-2006,2007) programming outcomes for Democratic Governance were similar (but without the CPAP2008-2010’s explicit reference to inclusion and informal processes). Relevant CCF-2 outcomeswere: (f) Greater transparency, accountability and participation within the central machinery ofthe Government through enactment and implementation of legislation and treaties on humanrights and through judicial and legal reform measures; (g) Implementation of the national humanrights action plan facilitated and (c) Policy and legislative reforms addressing discriminatorypractices against women in economic and social transactions, thereby promoting gender equality.

Methodology and Limitations EncounteredThe Evaluation Mission followed a methodology that included conducting a desk review of allrelevant project documentation followed by interviews with the UNDP CO, project office staffand over 100 relevant stakeholders in Nepal. Prior to the Evaluation Team’s departure fromNepal a debrief of donors, partners and key stakeholders was held and follow-up meetings wereconducted. After the team’s departure from Nepal email follow-up was conducted withstakeholders and the Evaluation Mission’s Draft Report was prepared. The Evaluation Missionencountered some limitations in its work (i.e. lack of statistics relating to Dalits and otherminorities; lack of institutional memory and documentation of projects at the UNDP CO; and theinaccessibility of remote field locations in the Far Western Region of Nepal where visits for the

CPAP 2008-2010 Results FrameworkIntended Outcome2.2

Responsive and accessible justice systems to promote gender equality,social inclusion and the rule of law, including formal and informalprocesses

Intended Output 2.2.1 Pilot court models graduated and ready for replication, and mediation systemstrengthened for enhanced access to justice for women and excluded groups.

Intended Output 2.2.2. NHRC capacity strengthened in monitoring, investigation, documentation andreporting of human rights violations

Intended Output 2.2.3. Selected existing laws reviewed and amendments drafted and new legislationdrafted as required by Nepal’s treaty obligations and other international humanrights standards


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Evaluation Team had been planned). UNDP CO and Donors were extremely helpful to theEvaluation Team in filling gaps in information where possible.

Summary of UNDP Progress towards meeting the OutcomeUNDP has made important contributions to rule of law, access to justice and human rights inNepal during 2001-2010 via the outputs of its various Rule of Law, Access to Justice and HumanRights Projects as well as a number of other in-kind contributions made directly by the CO.

As a result of UNDP support, the Supreme Court and district courts are better capacitated toperform their adjudicatory and management functions. This has impacted favourably uponoverall statistics for rates of adjudication and backlog according to the Court’s own data. At thesame time, however, thousands of cases have been summarily removed without hearing from therolls by successive governments, which does not comport with due process and may skewbacklog statistics provided by the Court. Overall, however, the quality of judicial opinionwriting has improved and there is a greater incidence of citation to international human rightstreaties as a result of UNDP capacity building and training of the Nepalese Judiciary.

UNDP’s Pilot Court Programme led the entire judicial reform agenda in Nepal and resulted in anew case allocation method being adopted by the Court (as opposed to an old lottery caseassignment method); introduction of technology for case management in some courts; andallowed the Supreme Court to experiment with the partition of civil and criminal cases intoseparate benches within some courts. No significant statistical or sustained impact was madeupon district courts, however, in terms of case backlog or rates of adjudication.

UNDP was active in court-referred mediation at an early stage and its technical support,coordination and in-kind contributions are evidence of a strong UNDP comparative advantage inaction and can be considered as a “best practice”. As a result of UNDP’s support to court-referred mediation within the Pilot Court Programme and other courts, mediation as an alternativedispute resolution mechanism has been fully endorsed by the Supreme Court. The Court now hasa plan to create court-annexed mediation centres in all courts in Nepal.

UNDP along with other donors supported community-based justice initiatives such ascommunity-based mediation, paralegals and legal aid desks for women that have delivered justiceand resolved disputes at the local level for a number of individual beneficiaries. While UNDP’scommunity- based justice initiatives are at an early stage, they have laid a foundation for futurework in this sector and the eventual development of a comprehensive legal aid deliverymechanism in Nepal.

In addition, the mere presence of Paralegal Committees (PLCs) on the ground and theendorsement of UNDP in this sector are a strong signal by the international community and theGovernment of Nepal, that SGBV and discrimination against minorities will not be tolerated.UNDP supported PLCs made significant, albeit isolated, contributions to gender equality, humanrights and tolerance within the VDCs where they operated during 2008-2010.

UNDP advanced the Outcome with regard to human rights in Nepal, by providing crucial andearly support to the NHRC in the late 1990s at a time when the Government of Nepal providedlittle funding. UNDP supported NHRC during the height of the Conflict, capacitating it toperform investigations and negotiate disputes between opposing parties. UNDP, in conjunctionwith OHCHR since 2005, continued to support the NHRC—further capacitating NHRC to carryout its mandate to investigate conflict related atrocities and perform outreach and public


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awareness-raising activities. With UNDP support, NHRC undertook studies of Nepal’slegislation to conform to its international human rights treaty obligations.

UNDP support to both MoLJ and NHRC also resulted in a number of other legislative reforms,and drafts of a new Civil Code, Code of Civil Procedure, Criminal Code and Code of CriminalProcedure for Nepal and the Sentencing Policy Act that have laid the foundation for revision ofthese drafts following a notice and comment period.

The UNDP funded Centre for Constitutional Dialogue (CCD) rendered crucial advisory servicesand information to Constituent Assembly (CA) members on issues related to drafting a newConstitution for Nepal thereby promoting the penultimate rule of law objective for Nepal: theadoption of a new Constitution.

UNDP support has clearly advanced the Outcome “Responsive and accessible justice systems topromote gender equality, social inclusion and the rule of law, including formal and informalprocesses” in a number of ways during 2001-2010 and laid a foundation for future work in rule oflaw, access to justice and human rights in Nepal.

Yet, it is important to underscore that while women in general are better off than they were adecade ago, Dalit females are much in the same position today as in 2001. Caste-baseddiscrimination, impoverishment, denial of land and economic opportunities, SGBV anddiscrimination against persons with disabilities persist. Strategies are lacking for rule of law,access to justice and human rights that specifically target these populations. Meanwhile, there isvirtually no UNDP A2J programming to date on LGBT-based discrimination. There is a largeproblem with disaffected youths that slip into criminal activity linked to political parties. All ofthese problems are magnified in the conflict prone Terai region.

Impunity is pervasive in Nepal and no prosecutions have resulted as a result of NHRCrecommendations, although the Government has taken strong action against some human rightsviolators (i.e. cases of persecution of “witchcraft”). NHRC recommendations continue toencounter significant political and legal roadblocks.

Transitional justice has been largely under-served in post-Conflict Nepal and there remains muchwork to be done not only to draft a new Constitution for Nepal, but also to prepare the country fora period of post-Constitution “adhesion” and administrative reforms that will inevitably occur ifand when a new Constitution is adopted. Furthermore, the courts still exhibit significant casebacklog and inefficiencies; there is no system of continuing legal education for lawyers; andjuvenile justice and quasi-judicial authorities (i.e. Chief District Officers)(CDOs) have not beentargeted by UNDP or donors sufficiently to date. The envisioned Truth and ReconciliationCommission (TRC) and Commission on Enforced Disappearances (CoED) are problematic fromthe perspective of the costs and political will necessary to implement them as well as theadministrative burden that they will place upon the Office of the Attorney General (OAG) and itsprosecutors and other government attorneys.


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Future directions for UNDP Rule of Law, Access to Justice and Human Rights Programming inNepalThe Evaluation Mission’s assessment of UNDP performance 2001-2010 presents some commonprogrammatic and strategic recommendations for access to justice, rule of law and human rightsgoing forward.

In general, UNDP support tended to exhibit more of a “top down” than a “bottom up”development approach to programming during 2001-2010. Synergies have also been difficult tocapture to date, due to inconsistent programming. UNDP’s new A2J project includes a greaterfocus on legal empowerment, and more activities are planned at the district level.

Overall, UNDP needs to become more knowledge-based and less concerned with projectexecution. UNDP should also incorporate more political analysis and situation analysis in itsprogramming. UNDP also needs to do a better job of assessing the burdens placed upon GoN byUNDP programming and via legislation proposed by UNDP and other donors.

UNDP also needs to do a better job of utilizing its own in-house knowledge to inform itsprogramming (i.e. M&E conducted in the field and the expertise of its own Governance Unit’sRule of Law Programme, A2J Project and NHRC Project). Most all UNDP CO and project-level staff within A2J and Human Rights have advanced law degrees and much better use couldbe made of their substantive knowledge and expertise, in addition to project administration andexecution.

Going forward UNDP will need to continue to address the grassroots needs of its constituencyand define the particular bundle of rights that it seeks to deliver to these beneficiaries. WhileUNDP support to justice providers (the “supply-side” of the justice equation) is crucial andshould continue; overall, UNDP needs to increase its focus on the demand side and incorporate alegal empowerment/pro-poor agenda in all its A2J and human rights programming.

UNDP’s programming in rule of law, access to justice and human rights during 2001-2010 waslargely relevant, but perhaps could have used different partners and a greater number of them forimplementation purposes. The challenge is to make the entire rule of law system more robustand build people’s confidence in the judiciary. UNDP resources can be utilized in ways that aremore relevant to the needs of women, minorities and the poor. For example, if the courts inNepal want to address the needs of women and Dalits, then this will require specific mechanismssuch as providing information, expedited procedures, waiver of fees and assistance withcompleting necessary forms.

Although the Evaluation Mission has discussed areas for continued training for the Judiciary andcourts in Nepal, over the next two to five years, UNDP should begin to transition the SupremeCourt away from donor funded trainings, to the extent possible, and to a point where all trainingfor the Judiciary is to be performed within the context and curriculum of the National JudicialAcademy. To the extent that UNDP continues funding training for the courts, UNDP shouldfocus on the District Courts, any new local/municipal courts formed as a result of a newConstitution in Nepal.

UNDP and other donors need to become much more strategic in their approach to programmingfor the Rule of Law, Access to Justice and Human Rights sectors. UNDP and donors shoulddevelop broad Strategies for Rule of Law; Access to Justice (Community-based justice initiatives;mediation; legal empowerment of the poor); Human Rights (including all human rightscommissions in the country, not just NHRC as well as administrative agencies and line-


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Ministries); Administrative Law; Anti-Corruption; Anti-Discrimination and Legal Aid.

UNDP rule of law assistance 2001-2010 focused heavily upon the Supreme Court and districtcourts. Private lawyers and the Law Commission were also targeted to some extent, but otherimportant rule of law actors were not targeted or were only minimally or tangentially targeted forUNDP assistance 2001-2010.

Any Strategies that are developed by UNDP and donors should address the following rule of lawactors who have not been targeted heavily by UNDP to date: Prosecutors; Prison Officials;Police; Security Sector; Army; Ministries (administrative law); Bar Council; Judicial Council;Judicial Service Commission; Nepal Bar Association; university law faculties; the National DalitCommission; the National Women Commission; political parties; civil society and the media.UNDP should continue to work with the National Judicial Academy. UNDP must also addressthe quasi-judicial authorities (i.e. CDOs) and their impact upon human rights in Nepal.

A criticism of the A2J community-based justice initiatives 2008-2010 is the fact that in no singledistrict were all elements of the UNDP initiative (i.e. court referred mediation; communitymediation; paralegals and women’s legal aid desks) operating at one and the same time. TheEvaluation Mission understands that UNDP was attempting to avoid duplication with otherdonors. The downside of this strategy, however, is that UNDP has not been able to documentsynergies between the various elements of its own A2J initiatives to any degree or see how theyoperate in parallel within the same geographic area. Going forward, UNDP should do a muchbetter job of documenting the synergies between its various programmes.

In addition to UNDP, many other donors were active in community-based justice initiatives 2008-2010, chief among these being UNICEF. The relative sophistication of UNICEF’s paralegalinitiative and its planning for a DFID funded expansion of its PLCs to all districts in Nepalscheduled to take place between 2011-2013 have prompted the Evaluation Mission to recommendthat UNDP consider handing-off its PLCs to UNICEF, but with strong caveats as to the content oftraining modules for PLCs and scope of their services. This will enable UNDP to focus oncommunity mediation and legal aid, while enhancing overall UNCT coordination.

Regarding human rights in Nepal, despite substantial UNDP and other donor support 2001-2010,NHRC has continued to face problems. No prosecutions of conflict related atrocities havedirectly resulted from NHRC recommendations to date, although the recommendations have ledto strong action by the Government in some cases (i.e. cases of witchcraft and rape) as well asreparations being paid to victims. Another barrier to both access to justice and human rights inNepal is intervention by the political parties and other groups that can interfere with justicedelivery.

Furthermore, the relationship between NHRC and the donor community, as well as UNDP andOHCHR has not at all times been a cooperative one. The fact remains, however, that NHRC isthe only Constitutional body empowered to promote and protect human rights in Nepal viainvestigations and recommendations.

The Evaluation Mission makes the strong recommendation that UNDP continue its support ofNHRC—particularly the NHRC field offices and strengthen NHRC’s investigative capacity andresources. As of March 2011, NHRC will need to replace approximately 90% of its staff thatcurrently serve on temporary contracts. UNDP and UNCT can play a role in supporting therecruitment of new staff and the preservation of institutional memory at NHRC.


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To date, many citizens have filed complaints with NHRC and its recommendations have resultedin reparations paid to victims in many cases. The Evaluation Mission has outlined the legal andprocedural “roadblocks” that currently provide the OAG, line Ministries, the Police and the Armywith statutory justification for not implementing or only partially implementing NHRCrecommendations. The Evaluation has recommended a number of legislative revisions thatshould be undertaken to more fully ensure the implementation of NHRC recommendations. Inorder for real change to occur a dialogue will need to take place between these entities and UNDPcan play a strong facilitating role in moving the process forward.

UNDP supported legislative initiatives could have been better aligned with the process of draftinga new Constitution for Nepal and taken into account the views of a wider spectrum ofstakeholders and civil society in the drafting stage. In general, more progress must be madetowards conforming drafts of legislation with Nepal’s international human rights obligations.

UNDP and JICA supplied the Nepalese Civil Law Reforms and Improvement Taskforce onDrafting the Civil Code with technical support. UNDP also provided national consultants andreference materials for this purpose. The draft Civil Code represents an improvement in termsof gender equality from previous codes. Yet, according to UNDP and JICA not all technicaladvice and suggestions were incorporated in the draft Civil Code by the Nepalese Government’sTask Force.

The Evaluation Mission is concerned that many elements of the draft Civil Code, in its presentform, are still not fully reflective of Nepal’s international human rights obligations regardingequal protection and gender equality. The Evaluation Mission is similarly concerned by theextent to which the draft Criminal Code and draft Code of Criminal Procedure fall short ofconformity with Nepal’s human rights obligations. OHCHR has recently criticized manyelements of the draft Criminal Code and draft Code of Criminal Procedure.

All of these codes are currently being put through a final round of public comment and UNDP,OHCHR and other donors should continue to advocate that Nepal meet minimum standardsreflected in the international human rights treaties to which it has acceded as well as the InterimConstitution of Nepal.

Paramount among the Evaluation Mission’s recommendations is that the RCO form a centralizedmechanism going forward to coordinate the UNCT’s future legislative drafting projects. TheEvaluation Mission has additionally, made observations and recommendations for UNDP CO andpromoting synergies between A2J and Peace; the incorporation of a new Strategic PartnershipFramework (SPF) between UNDP Nepal and UNDP Bureau for Crises Prevention and Recovery(BCPR) into the CO Governance Unit’s Access to Justice Programme; increasing its access tojustice presence in the field; increasing its support for knowledge products and publications; andimproving its in-house statistical capacities.

The Evaluation Mission has also discussed the need for overall UNCT coordination and madeobservations regarding future structure of the CO (including the possible relocation of the CCDfrom the UNDP Peace Building to UNDP Governance unit). Additionally, the EvaluationMission has made observations concerning the U.N. Secretary General’s “Rule of LawCoordination Resource Group” (ROLCRG) and synergies between the UNDP Rule of LawProgramme and UNDP Peace Building in Nepal.

Given the sensitive nature of transitional justice, the Evaluation Mission is recommending that theBCPR “components” of the UNDP A2J programme continue to be executed under a DEX


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modality under the supervision of the recently appointed Technical Advisor at the A2Jprogramme and UNDP CO senior management on an activity-by-activity basis as is currently thecase.

UNDP has recently provided leadership in the rule of law sector by chairing a working group ondonor relations. In regard to donor relations and coordination, UNDP’s donors and partnersreport that they are generally pleased with UNDP performance, but echoed a criticism raised bynumerous stakeholders, namely, that UNDP must become more strategic in its programming andmake a shift away from a project-based programme to a knowledge-based programme.

Rule of law, access to justice and human rights are sectors that demand continued engagement byUNDP. To date, UNDP has advanced the Outcome in important and identifiable ways amidst amost difficult political context in Nepal. Clearly, much work remains to be done by UNDP,UNCT and the international donor community to ensure that the Outcome as stated is fullyachieved in and that system-wide and comprehensive changes are effected that empower the poor,women, minorities and most disadvantaged members of society. They are UNDP’s traditionalconstituency and should be listened to as they struggle to attain identity within the state, toachieve equality, inclusiveness, fair and effective representation and an environment free ofdiscrimination.


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1. Introduction and OverviewIf the fundamental challenge of post-Comprehensive Peace Agreement (CPA)/pre-ConstitutionNepal is one of defining identity within the state and achieving equality, inclusiveness, fair andeffective representation and the elimination of discrimination, then one must ask: how has UNDPaccess to justice and human rights programming contributed to this process? How have itsinitiatives contributed to peace and a larger social justice necessary for Constitutional adoptionand adhesion in Nepal? How has UNDP programming changed pervasive gender and caste-baseddiscrimination found in Nepal? How, over a decade of intervention, has UNDP laid a foundationfor change?

2. Methodology, Criteria and Scope of Evaluation2.1. Terms of ReferenceUNDP Nepal has chosen to conduct an Outcome-level Evaluation of its recent programming inaccess to justice and human rights between 2001-2010. As such, this evaluation seeks to measureUNDP’s success in achieving the Outcome: “Responsive and accessible justice systems topromote gender equality, social inclusion and the rule of law, including formal and informalprocesses.”1

In addition, the Outcome-level Evaluation intends to measure UNDP’s Role and Contribution tothe Outcome, UNDP CO Management and Operations (as they impact upon the Outcome) andUNDP’s Partnership Strategy (as they impact upon the Outcome) and other relevant factors suchas progress towards meeting relevant MDGs. The CO also requested the Evaluation Mission toevaluate UNDP Rule of Law synergies with Peace Building, “1-UN” Rule of Law Coordinationand UNDP Rule of Law synergies with the Constitutional drafting process in Nepal. Thecomplete ToR for the Evaluation appears in the ANNEX of this report.

2.2. Approach and MethodologyUpon selection of the Evaluation Team by UNDP, the team spent several days pre-departureconducting preliminary document review and developing a methodology and work plan for theEvaluation. Upon arrival at UNDP Nepal, the Evaluation Team conducted an extensive reviewof all UNDP CO project documentation, prior evaluations and assessments and other dataavailable to UNDP CO relating to its recent programming in access to justice and human rights.The Evaluation Team developed a set of indicators by which to measure progress towards theOutcome and developed a draft outline of the Evaluation Report (with reference to the UNDPguidelines for Outcome Evaluations).

Following the document review, the Evaluation Team held meetings with UNDP CO SeniorManagement and programme staff within the transitional governance sphere to gatherinformation about programming. The Evaluation Team then conducted interviews with donors,government partners, implementing partners, UNDP project staff, and other stakeholders and

1 UNDAF (2008-2012)/CPAP (2008-2012)(and previous years as applicable) expected Outcome for Access to Justice andHuman Rights (i.e., specifically UNDAF/CPAP RRF Outcome 2.2 as further developed by the UNDP Country Team) andtheir impact. This Outcome falls within UNDP Nepal Programme Component: “Transitional Governance” and involves anumber of UNDP projects related to Access to Justice (A2J); Reform of the Judiciary (RoJ); Support to ParticipatoryConstitution Building in Nepal (SPCBN); and Strengthening the Capacity of the National Human Rights Commission(SCNHRC). In addition, this programme component links with other UNDP projects: Support to Reconciliation andDemocracy Building; Support for Peace and Development Initiatives; Support to Nepal’s Human Rights Action Plan; andSupport to Legislative Initiatives; as well as UNDP “mainstreamed” programming involving gender equality, ethnic-minorities, human rights, pro-poor, HIV/AIDS, etc. that impact upon Access to Justice and Human Rights.


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beneficiaries in order to ascertain UNDP’s progress towards meeting the Outcome and the impactof UNDP programming. This phase of the Evaluation took place in Kathmandu and at fieldlocations determined by UNDP CO. The Evaluation Team interviewed over 100 stakeholdersand made two field trips to the Eastern Terai and Western Terai. The Evaluation Team alsolocated outside data sources (to the extent that these existed) to objectively measure progresstowards the outcome. A list of meetings held by the Evaluation Team appears in the ANNEX ofthis report.

Upon conclusion of the Evaluation, the Evaluation Team debriefed UNDP CO on its principalfindings, conclusions, recommendations and lessons learned. Following the debrief, theEvaluation Team and Team Leader produced an Evaluation Report containing Findings,Conclusions, Recommendations and Lessons Learned for submission to UNDP Nepal forcomment. Following the receipt of comments by UNDP Nepal, the Evaluation Team Leadersupplemented, edited and finalized the Final Report of the Evaluation and submitted it to UNDPNepal for publication.

2.3. Evaluation CriteriaThe purpose of this Outcome evaluation is to measure initial progress towards the intendedoutcome, assess UNDP’s contribution thereto, and make recommendations for adjustments to theprogramme and targets, in light of an anticipated extension of the Country Programme by twoyears (till 2012) and of the new UN Rule of Law initiative, in order to strengthen theprogramme’s relevance and potential impact on the peace process and the building of the “NewNepal,” as well as UNDP’s partnership strategy in this area.

The ToR call for the Evaluation Mission to examine the relevance of UNDP’s interventionswithin the context in which UNDP began its support to improve access to justice (2001 onwards),and particularly in the Post-Peace Agreement context (late 2006 onwards); progress towardsmeeting the Outcome to date and project design; an analysis of project Outputs to progress; thesustainability of UNDP initiatives; UNDP partnership strategy and the overall impact of thesefactors upon women and excluded groups in Nepal. A copy of the original Terms of Reference iscontained in the ANNEX to the report.2

2.4. Challenges Encountered by the Evaluation Team and LimitationsThe Evaluation Mission encountered some limitations in its work (i.e. lack of statistics relating toDalits, lack of institutional memory at the UNDP CO and documentation of projects and theinaccessibility of locations in the Far Western Region of Nepal where field visits had beenplanned). Another limitation was the lack of disaggregation by the Supreme Court and other

2 It must be clearly stated at the outset, that although this Evaluation Mission discusses certain elements of courtrestructuring and judicial reform, it was not within the scope or duration of this Evaluation Mission to conduct acomprehensive mapping of the Nepalese Judiciary or court reform, but to focus on UNDP’s limited contribution to theOutcome 2001-2010. The Supreme Court of Nepal has recently issued its 2nd Five-Year Strategic Plan for the NepaliJudiciary that sets forth 12 Strategic Interventions for court reform in Nepal. The Supreme Court also recentlycommissioned a “Judicial Mapping and Judicial Assessment” (January 2010)(B. Walsh, et. al.) that sets forth extensiverecommendations for judicial and court reform in Nepal—all of which are endorsed by this Evaluation Mission. Readersof the instant evaluation report are encouraged to consult both the Supreme Court’s 2nd Five-Year Strategic Plan as well asits recent “Judicial Mapping and Judicial Assessment” for a more full discussion of these issues. Similarly, it was not withinthis Evaluation Mission’s ToR to make policy pronouncements as to the merits of the various models for the futurestructure of the Nepalese Judiciary and court system put forth by the various political parties in Nepal as reflected in thereport of the CA Committee on the Judiciary and subject to inclusion an a new Constitution for Nepal. Nonetheless, theEvaluation Mission has encouraged UNDP to facilitate debate on this topic amongst Stakeholders in Nepal.


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agencies of their statistics by ethic group/caste (i.e., Dalit and other ethnic minority groups inNepal). UNDP CO and Donors were extremely helpful to the Evaluation Team in filling gaps ininformation where possible. This Evaluation could not have been conducted without theirsupport.

3. Background and Context3.1. Nepal: Poverty, Conflict and the Peace ProcessNepal has been working towards peace since the signing of a Comprehensive Peace Agreement(CPA) in November 2006 by the Government of Nepal and the Communist Party of Nepal,Maoists (CPN/M). This historic agreement ended a ten-year armed conflict that killedapproximately 13,000 people, brought about a major set back in the development process, andmost importantly, weakened social cohesion in communities across Nepal—especially its poorestrural areas and the Terai region.

At the root of the armed conflict lay persistent inequality, poverty and exclusion from statemechanisms and development opportunities, and legal, economic, and social arrangements whichrestricted the influence and prospects of a large proportion of Nepal’s women and girls, Dalits,Janajatis (Indigenous Peoples), Madhesis (groups of plains origin), religious and culturalminorities, and the poor in general.3 Apart from this, youth in Nepal is an importantdemographic group that continues to fuel a volatile situation—especially among the youth wingsof the political parties as well as a multitude of other armed criminal gangs that draw heavilyupon youth members. This is especially prevalent in the Terai.

Nepal’s leaders have recognized the importance of access to justice and human rights forsustainable peace. The November 2006 CPA calls for a:

…[P]olitical system that complies with universally accepted fundamental human rights,multiparty competitive democratic system, sovereignty inherited in people, supremacy ofthe people, constitutional check and balance, rule of law, social justice, equality,independent judiciary, periodic elections, monitoring by civil society, complete pressfreedom, people’s right to information, transparency and accountability in the activitiesof political parties, people’s participation, impartial, competent, and fair concept ofbureaucracy.

Likewise, the CPA also mentions the importance of protection and promotion of human rightsand of international humanitarian law. Furthermore, the CPA mandates the National HumanRights Commission (NHRC) to be an independent oversight body to monitor the implementationof the human provisions enshrined in the CPA. The CPA also provides for gender equality,social inclusion and reintegration of Maoist combatants as components of peace.

The Interim Constitution of Nepal (ICN) 2007 also recognizes the importance of human rights,with Part 3 devoted to Fundamental Rights. Such rights include rights of freedom and equality,rights against untouchability and racial discrimination, freedom of the press, rights to a cleanenvironment and health, education and cultural rights, rights to employment and property,

3 A study conducted on "Access to Justice during the Armed Conflict (2005) concluded that lack of access to justice by thepoor and disadvantaged was among the roots of the conflict, and that in conflict, access to justice is as vital to savingpeople’s lives as access to food and water. The report further concluded that access to justice is key to peace building inNepal.


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property rights, rights of women and children, rights against unlawful detention and torture, rightto privacy and other rights. Free legal aid and the right to constitutional remedy, are recognizedas fundamental rights.4 The ICN has upgraded the NHRC as a constitutional body to ensure therespect, protection and promotion of human rights and their effective enforcement. Part 10 of theICN calls for an independent Judiciary to exercise judicial powers.5

Following the 2008 national Constituent Assembly (CA) elections, which also led to thedeclaration of a secular, federal republic, the elected CA is in the process of drafting a newConstitution for the “New Nepal.” The CA has formed 10 thematic committees, two of which,the Fundamental and Directive Principles Committee and the Committee of Judicial System, aretasked with preparing a draft “Report on Fundamental Rights and Directive Principles of theState” and, respectively, “Judicial System”.

The CA Committee on the Judicial System has already finalized and submitted its report to theCA. The report recommends a federal structure for the court system, including newlocal/municipal-level courts and additional specialized courts (i.e. family courts). Likewise, theCA Committee on Fundamental Rights and Directive Principles and State Policies has alsosubmitted its report to the CA, which recommends an independent and competent judiciary andthe NHRC as the “watchdog” body of rule of law and human rights in Nepal. As discussed,infra, there has been some debate surrounding the idea of a Constitutional Court. While a federalstructure has been proposed, this is by no means a political certainty.

3.2. Nepal’s Justice System: Background, Overview and Issues 2001-2010The Nepalese Legal Tradition and Hierarchy of LawsNepal’s legal system has its origins in ancient Hindu beliefs (Dharma) that enshrined a strictcaste-based system. The Muluki Ain (of December 1854)6 was Nepal’s first attempt to codifylaw. The Muluki Ain incorporated both provisions of existing law and certain civil lawtraditions of continental Europe—principally the Code Napoleon.7

The Muluki Ain, in addition to codifying Nepal’s administrative procedures made severaladvancements such as the abolition of torture to obtain confessions. It set strict penalties forabuse of judicial authority. But, caste-based differences remained throughout the Muluki Ainwith clear preferences and exemptions for the higher castes such as Brahmans (in keeping withthe tradition of Dharma), thus enshrining “anthropology of caste” in the legal system of Nepal.8

The Muluki Ain remained in effect for nearly 100 years until the Interim Government Act of19519 when Nepal’s legal system became more westernized. The Act of 1951 created lawschools, bar associations, statutes on the courts and most significantly, adherence to the EnglishCommon Law tradition of binding precedents (case law). The Civil Code was further revised in

4 ICN Part 3, Arts 12 to 32.5 See also, GoN “Three Year Interim Plan” (2007/8-2009/10), Chapter 6 on Social Justice and Inclusion, that states theGovernment’s development objective: To improve the human rights situation of the people and communities at risk and those made to beat risk by putting into practice the commitments made in the national and international levels by the State, for alleviating poverty and ending allforms of social and economic discriminations, deviations, crimes, exploitation and misbehaviour and: To institutionalize a well developed humanrights culture, by controlling violation of human rights in all sectors; Chapter 10 of the Interim Plan highlights the long-term vision forimproved governance and access to justice: The long-term vision is to make public, judicial and development administration morecompetitive, participatory, transparent, service-oriented, result-oriented, accountable, inclusive, disabled-friendly and gender equity oriented.6 See, Höfer, András, The Caste Hierarchy and the State in Nepal - (2004)7 Code civil des Français, March 21, 1804 (entry into force).8 Höfer.9 The Interim Government Act of 1951 was amended numerous times, most recently in 2007.


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1963 and this version remains in force today.

Nepal is currently governed under the ICN 2007 that came into force on January 15, 2007. TheICN10 replaced the previous Constitution of the Kingdom of Nepal (1990) and is a direct result ofthe Jana Andolan (People’s Movement II) in April 2006 that demanded a restoration ofdemocracy in Nepal and equal rights for Dalits11, Janajati (ethnic groups) Madhesis (from theTerai region) and women.

The ICN stipulates that Nepal will be a federal state and provides for a Constituent Assembly(CA), which is charged with writing Nepal's permanent Constitution. The CA is now in theprocess of preparing its first draft. Under the terms of the ICN, the new Constitution is to bepromulgated by May 28, 2011.

The ICN also recognizes the NHRC of Nepal as a Constitutional body and contains an entirechapter on human rights.12 In addition, the ICN regulates the Judiciary; grants to all Nepalesecitizens a right to petition the Supreme Court to declare any law as “un-Constitutional”; providesfor a Judicial Services Commission to deal with appointments and staff transfers; creates aCommission for Abuse of Authority designed to investigate corruption of public office, anAuditor General and Public Service Commission. The ICN also clarifies the Attorney General’srole as a guardian of the law to advise on constitutional and legal matters to the Government ofNepal.13

The Structure of the Nepalese judiciary and court systemNepal currently has a three tier judicial structure that has been in place since the 1990Constitution and is affirmed by the ICN 2007.14 The court system is comprised of 75 districtcourts (courts of first instance) 16 appellate courts (intermediate courts) and one Supreme Court(the “apex” court). These regular courts have criminal and civil jurisdiction.15 In addition,specialized courts, judicial institutions and tribunals can be established and constituted forpurposes of hearing special types of cases;16 although, such specialized courts are currently few innumber.

The Supreme Court is the highest court, which has constitutional authority to inspect, superviseand give directives to all subordinate courts such as appellate courts and district courts and otherjudicial institutions. 17 This structure results in a highly centralized judiciary with the Supreme

10 “The Interim Constitution of Nepal, 2063 (2007) As Amended by the First Eight Amendments” (UNDP Nepal July2010).11 Dalits are particularly impacted by poverty and exclusion. The National Dalit Commission estimated in that in 2002 theliteracy rate among Dalits is 33.8% in comparison to the national average 54%. The annual per capita income of Nepal is$210 USD, where that of Dalits is approximately $39.60 USD. From among the 17% of the poorest segment of Nepalesesociety, 80% belong to the Dalit community. [Source: National Dalit Commission: An Introduction (2002)].12 ICN, Part 3.13 ICN, Article 15314 ICN, Part 10.15 The Supreme Court has 15 justices, plus up to another ten ad hoc justices who normally adjudicate cases in Kathmandu inbenches comprised of two or more judges. The appellate courts are seated at 16 locations throughout Nepal, usuallycomprising five judges at each location. The district courts are seated in each of Nepal’s 75 districts and average one judgeper district, however, some densely populated districts have two or more judges assigned to the court. District courtjudges conduct trials (i.e. without a jury) of first instance in both civil and criminal matters in a combined bench, although afew district courts (i.e. so called “pilot” courts) have recently bifurcated their benches into separate criminal and civildivisions with separate judges for each. The Supreme Court is currently examining the issue of whether or not toimplement separate criminal and civil benches in all district courts having more than one judge.16 Art. 101(1) and (2) Interim National Constitution of Nepal (2007).17 Art 102. ibid.


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Court setting policy and budgets for all other courts in Nepal.

Currently, Nepal is in a transitional and post-conflict stage after the signing of the CPA in 2006by the Government of Nepal and the CPN-Maoists. Thus, Nepal is facing numerous issues thatemerged during the conflict and even in the recent post-conflict era such as: socio–economicimbalances; the need for truth and reconciliation in the country; security issues in the Terai; andestablishing a transparent system of governance by institutionalizing democracy and politicalstability.

Nepal’s judiciary and quasi-judicial authorities (discussed below) are not immune from thesechallenges. The Nepalese judiciary also struggles with a huge case backlog.18 Enforcement ofjudgments, problems of access and translation are other major challenges as Nepal is in theprocess of constitution making. Furthermore, the CA, the judiciary, lawyers and otherstakeholders are currently locked in debate about the structure of the Nepalese judiciary 19

Judicial Independence in NepalThe independence of Nepal’s judiciary is questionable. Under the ICN the Prime Minister on therecommendation of the Constitutional Council, which is comprised mostly of members of theExecutive appoints the Chief Justice (i.e. the Prime Minister himself, plus three other Ministersdesignated by the Prime Minister comprise four of the 7 total members of the Council).20 Whilethe practice of having the Constitutional Council to appoint the Judiciary has been significant,nonetheless, there is a risk that the Prime Minister could yield disproportionate weight in theprocess in a politically charged scenario. Only two members of the Council are from theLegislature. The other member is the Chief Justice himself.

Likewise, the provision for the removal of Supreme Court justices is theoretically problematicbecause “if the legislature is dominated by political consensus, there is a risk that Supreme Courtjudges could be removed by political consensus.”21 Although in practice, only a 2/3 majority ofParliament can remove the judges, which would be a very rigorous process. In addition, the ICNcontains a vague provision that the lower court judges can be removed in cases of “deviation ofjustice” and “on the ground of poor character”.

Furthermore, the ICN permits the Government to request that the Judicial Council assign judgesto be used for election work; and in the past particularly the district judges were mobilized forthis purpose. While the Judicial Council retains the ultimate decision to assign judges for aspecified purpose, such practices encourage judges to be close to political parties.22

18 Currently, District Court judge have around 700 cases each per year, Appellate Court judges have around 400 cases eachper year and Supreme Court judges have around 1500 caseloads each every year.19 P. M. Shakya, Model Structure of Court for Federal Democratic Republic of Nepal in Nepal Law Review, Vol. 21. No 1&2 (Nepal Law Campus, Faculty of Law, Tribhuvan University, Kathmandu, 2009). PP. 40-41.20 ICN Art. 149 provides, “(1) Nepal shall be a Constitutional Council for making recommendation in accordance with theConstitution for appointment of officials to Constitutional Bodies, which shall consist of the Chairperson and members asFollows: a) Prime minister- Chairperson, (b) Chief Justice-Member, (c) Speaker of the Legislative- parliament-member, (d)Three ministers designated by the Prime Minister-Members; and e) Leader of the opposition party in the LegislatureParliament; (2) When the position of Chief Justice falls vacant and a recommendation has to be made for the same, theminister for Justice shall be present in the Constitutional Council as a member.”21 The Judiciary in Creating the New Constitution: A Guide for Nepali Citizens; (International Idea, 2008); pp. 221-223.22 Art. 110 (1). Op.cit. A Judges shall not be transferred to, engaged in or deputed to any assignment except that of a judge.Provided that the Government of Nepal may, in consultation with the Judicial Council, assign a judge of the AppellateCourt and the District Court for a specified period to work concerning judicial inquiry, or to any legal or judicialinvestigation or research, or to any other work of national concern. With regards to the judges of the Appellate Courts orDistrict Courts, the Chief Justice, in consultation with the Judicial Council, may assign them to the above mentioned workincluding work relating to elections.


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Additionally, according to the Article 117(1) of the ICN, the Judiciary must submit an annualreport to the Prime Minister. This arguably makes the Judiciary accountable to the Executive.

Administration of Justice and Efficiency of the CourtsThe court system in Nepal has been plagued by inefficiencies, delay, inaccessibility and lack ofcapacity throughout the time period 2001 to 2010. A leading justice of the Supreme Court pointsout that the Nepali Judiciary has encountered problems with arrears, delay, eroding quality andabove all mounting consumer dissatisfaction, some problems are its own and others are createdby external factors, which must be historically resolved” 23

The Supreme Court’s “2nd Five-Year Strategic Plan of the Nepali Judiciary” notes that someprogress was made between years 2004-2008 regarding improvement of physical infrastructure,human resources, information technology and research capabilities.24 Yet, the Court notes a highincidence of case backlog continued to persist 2004 to 2008 and no remarkable achievement wasmade with regards to disposal of cases in comparison to new registration or levels of execution ofjudgments.25 The Court also notes deficiencies in providing sufficient and quality services tocourt users.26

A separate “Judicial Mapping and Judicial Assessment” recently commissioned by the SupremeCourt identifies many structural problems, inefficiencies in court operations, case management,conduct of the judiciary, ADR, levels of public trust in judicial system and training of thejudiciary. 27

The

Judicial Council,Judicial Service Commission

and the National Judicial AcademyIn conjunction with the Supreme Court, the JudicialCouncil, Judicial Service Commission, National Judicial Academy and Judicial Service Training

23 Justice K. Shrestha, NJA Law Journal, Vo.1. No. 1 (National Judicial Academy, Nepal, 2007). p.9.24 Second Five-Year Strategic Plan of the Nepali Judiciary (2009/10-2013/14)(Supreme Court of Nepal 2009) at p. 47.25 Id. at p. 51.26 Id. at p. 61.27 B. Walsh & Associates and Gandhi & Associates, Judicial Mapping and Judicial Assessment (Legal and Judicial Reformto Strengthen Creditor Rights Project, World Bank Creditor Rights IDF Grant).


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Academy also serve to meet the Supreme Court’s human resources, training and disciplinary andoversight functions. Donors in Nepal have been supporting trainings for the judiciary for over 20years. The Judicial Services Training Centre of Nepal organized the first training seminar fordistrict court Judges in February 1993.28

The Judicial Council is not immune from political influence as the Minister of Justice is amember of Judicial Council along with members of the Judiciary nominated by the PrimeMinister. The Council members are predominantly judges. It has authority to obtain and study thedocuments and files of a case related to any complaint lodged against judges, and may furnishinformation thereon.29 As a consequence, “the Judicial Council has also hesitated to takedisciplinary action against their follow judges for incompetence or corruption, even againstjudges whose faults were widely reported in the press. This has tarnished the image of thejudiciary in the eyes of the public.” 30

The Office of the Attorney General (OAG)The Office of the Attorney General (OAG) in Nepal includes government prosecutors, civillawyers and legal advisors. The fact that all of these are combined in a single OAG serves toblur the line between lawyers concerned with criminal prosecution, criminal defence or otheradvisory functions and rendering legal advice to the GoN. The Attorney General (AG) isappointed by the Prime Minister and, therefore, changes frequently with each successivegovernment. As noted in a recent report published by USAID, “The effect of interference inprosecutorial decision making is most likely to result in cases being prematurely dropped, ratherthan inappropriately continued. Figures for prosecution rates as with rates of court case disposalare conspicuously low.”31

The Commission for the Investigation of Abuse of AuthorityServing as a “watch dog” over public officials, the Commission for the Investigation of Abuse ofAuthority investigates allegations of public corruption, takes measures to combat and preventcorruption and undertakes prosecutions of government officials in a Special Court established tohear these anti-corruption cases.

The Chief District Officers (CDOs) and other Quasi-Judicial Authorities in NepalThe OAG Nepal “Annual Report 2007-2008” gives a government attorney conviction rate of 98%in district administrative offices (i.e. before Chief District Officers) and 73% in district courts.32

The high conviction rate before the CDOs may indicate that prosecutions before quasi-judicialauthorities proceed relatively unchallenged in Nepal.

As further noted in a recent study commissioned for the Supreme Court of Nepal, “much of thecriminal work that might be processed by the district courts is in fact diverted to the criminaljurisdiction of CDOs. Although CDOs are civil servants responsible for police operations ineach district, they have power in Nepal to try, convict and imprison offenders.”33 Such

28 UNDP “Strengthening the Rule of Law and Reform of the Judiciary Project Document 2001 at p. 2.29 Art. 113 (4), (5) Op. cit.30 Creating the New Constitution: A guide for Nepali Citizens, (International IDEA, 2008). p. 228.31 “Nepal Rule of Law Assessment” (Final report, September 2009)(USAID).32 “Annual Report of the Office of the Attorney General of Nepal 2007-2008”.33 B. Walsh & Associates and Gandhi & Associates, Judicial Mapping and Judicial Assessment (Legal and Judicial Reformto Strengthen Creditor Rights Project, World Bank Creditor Rights IDF Grant) at p. 25


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imprisonment can be as high as 5 years. Obviously, such powers do not conform to Nepal’sinternational human rights obligations or norms of international best practice. There are severalother types of quasi-judicial authorities in Nepal (i.e. certain inspectors) that have similar powers.

Inclusiveness of the Courts and the Legal ProfessionLawyers in Nepal and the Nepal Bar Association34 continue to face problems generally (i.e., thereis no organized system of Continuing Legal Education (CLE) in the country for lawyers).Meanwhile, rates of minority and women bar exam candidate remain low.

According to the Nepal Bar Association there were 12,222 registered advocates in Nepal in 2008and only 932 (7.6%) were women. Of the 932 women lawyers only a small percentage actuallypractice law. Most are employed in the civil service, non-governmental organizations oracademic institutions. As of 2009 there were only five (5) women judges out of a total 225judges in Nepal. Of these five, two are district court judges, two are appellate court judges andone is a Supreme Court Justice.35

Overall level of Access to Justice for the Poor, Women and MinoritiesRule of Law and Access to Justice—particularly initiatives that empower the poor, women,minorities and most disadvantaged individuals to obtain access justice—are inextricably linked tothe peace process in Nepal and its transition to a stable, peaceful democracy. The importance ofcommunity-based justice in Nepal cannot be overemphasized. The 1998 Local Self-GovernmentAct provided for the creation of community-based courts at the village and municipal level tosettle minor discords—although these were never established as a result of the Conflict andpolitical inaction.

Lack of access to justice and a perception that the judiciary had failed to deliver impartial justiceto a large segment of Nepalese society were some of the fundamental factors leading to the 1990Jana Andolan. The 2006 Loktantra Andolan (Jana Andolan II) was a reaction to KingGyanendra’s declaration of martial law and suspension of Parliament that was viewed by many inNepal as an abuse of the rule of law, ultimately resulting in the abolition of the Monarchy.

Some notable improvements in public access to the court system took place between 2001 and2006. The CPA 2006 and ICN 2007 both contain provisions designed to improve the structureand functioning of the court system. The poor, women and minorities in Nepal have tended not to

34 According to its website, The Nepal Bar Association (NBA) was established in December 21st 1956. At that time, legaleducation in Nepal was in a primitive stage. Thus, most of the lawyers were licensed on the basis of their experience in thelegal field and without any academic qualification in law. Gradually, afterwards law graduates from the universities startedreplacing traditional lawyers and today most of the member lawyers have formal academic degrees from the universities. Inits preliminary stage NEBA was functional without a formal registration, but in the year 1963 His majesty's Government ofNepal registered it as a professional organization under the provision of National Guidance Act 1961. Previously theSupreme Court of Nepal was the authority to issue a practicing license. Moreover, Disciplinary Committee of the SupremeCourt of Nepal was responsible for any kind of disciplinary action against lawyers. As a result of continued effort of NEBAin the year 1993 Nepal Bar Council Act was passed and the Nepal Bar Council composed under a provision of above acthas full authority for issuing licenses to lawyers and to take disciplinary action against any lawyer. The Legal Aid Act -1997has also recognized NEBA and GoN sponsored legal aid activities are to be conducted through NEBA. The Central LegalAid Committee, a statutory body, chaired by HMG Minister of Law and Justice, comprises president of NEBA as ex officiomember and secretary of NEBA as ex officio member-secretary. Thus NEBA is not only a professional organization butalso a statutorily recognized institution having responsibility of performing some legally specified duties.

35 Nepal Bar Association, “Ringing the Equality Bell: The Role of Women Lawyers in Promoting Gender Equality inNepal” (The Nepal Bar Association with the Canadian Bar Association; 2009 at pp. 3-7)


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seek redress from the formal justice system due to the costs involved and the perception that thecourts are biased in their judgments. The delivery of justice is not only linked to civil and politicalrights, but to economic and social rights and prosperity.

As stated above, the CA Committee on the Judicial System has proposed the addition of anothertier of courts and/or other institutions at the village, municipality or unit level to resolve disputesformally or through alternative dispute resolution.36 This proposal has been endorsed by theNepal Bar Association37 that sees such courts as a means of increasing access to justice forcitizens in Nepal, but as stated, such a Constitutional outcome is by no means a political certainty.

3.3. Human Rights in NepalAfter the end of the decade-long People's War in which an estimated 13,000 Nepalese citizensperished, restoration of the Parliament and termination of the monarchy delivered improvement inthe human rights situation since 2006. However, regardless of the people's expectation andinternational pressure, the main political parties spent most of the critical time in power struggles.In the Southern portion of the country—the Terai—criminal activities ostensibly linked topolitical parties increased dramatically, while the government remained challenged to maintainrule of law.

Human rights violations continued in 2009-10, amid further deterioration of public order. Variouspolitically motivated, criminal armed groups continued to engage in abductions, killings andextortions. In response, the government introduced a Special Security Plan. However, there wereregular reports of extrajudicial killings, false encounters, arbitrary arrests, detention and torture.38

One of the most worrying trends witnessed during 2009 was an unsavoury growth in"vigilantism" with a resulting gradual push towards "mobocracy". Several incidents of civilianstaking the law in their hands and lynching or burning criminal suspects alive were reported.Reasons for this shift can be attributed to corrosion in public security and the weakness of thepolice in addressing the rise in crime.

During the ongoing deterioration of law and order, the practice of torture and other inhumanetreatment remained common. In addition, political youth, especially the Young CommunistLeague, (affiliated with the UCPN-M) and the Youth Force (affiliated with the CPN-UML) alongwith various communal and armed groups, committed violent acts amounting to torture. As usual,the government detention facilities remained the centres of torture and ill treatment.39

Domestic violence, SGBV and Human Trafficking remain serious issues for Nepal. Women areunderrepresented in judicial and law enforcement sectors. SGBV cases are not prosecuted withsufficient frequency. Gender justice measures are insufficient, both in terms of institutional

36 Constituent Assembly Committee on the Judicial System Preliminary Draft Report, September 2009 at pp.7-8.37 Recommendations on the Constitution for submission to the Constituent Assembly of Nepal (Nepal Bar AssociationMarch 2008).38 Advocacy Forum Nepal documented a total of 165 cases of human rights violation (except torture and illegal detention)perpetrated by both the state security forces and non-state actors including Maoists and armed groups in Terai. In 2009 71cases occurred and were documented, while 94 occurred prior to 2009, but were not reported until this year. A total of 15people were killed and a further eight were injured in these "fake" incidents, which occurred in the Banke, Dhanusha,Siraha, Saptari and Rupandehi districts.39 In April 2009, the government of Nepal estimated that a total of 109 armed groups were operating in Nepal: 20 werecomposed of separatists, 12 were otherwise politically motivated, and the remaining 70 were said to be criminal gangs.Although the government initiated separate talks with a number of the political armed groups, none of the talks have so farresulted in these groups abandoning criminal activities as a means of financing themselves.


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measures and human resource capacities. Privacy and identity of victims and witnesses arerevealed, exposing them to secondary victimization.

Meanwhile, deprivation of socio-economic and cultural rights—that many maintain are the rootcauses of the conflict—continues in Nepal. For example, a diarrhoea epidemic in summer 2009,which spread across 18 districts of mid and far-western regions for over three months, claimednearly 400 lives and affected 65,000 people according to the NHRC. Most of the dead werewomen, children and Dalits. Food shortages, lack of education and lack of access to health careand economic opportunity are pervasive.

The National Human Rights CommissionIn 2000 The National Human Rights Commission (NHRC) of Nepal was established as anindependent legislative body under the Human Rights Commission Act of 1997.40

After the success of People’s Movement, the 2007 ICN was adopted, and granted the NHRC thestatus of a Constitutional body. It has also given a broader Constitutional mandate under Article132 of the ICN, as follows:

- To ensure the respect, protection and promotion of human rights and their effectiveimplementation.

- Conduct inquiries and investigations into cases of human rights violations.- Forward a recommendation to the authority concerned to take necessary action against

perpetrator (it includes taking departmental action, to lodge petition in the court).- Jointly or in coordination, work with civilians to enhance awareness of human rights.- Review existing laws related to human rights on a periodic basis and to recommend to

the government for necessary reforms and amendment thereto.- Recommend that the government becomes a party to any international treaties with

reasons.- Publicize the names of any official, person or body, not following or implementing the

recommendations of the National Human Rights Commission regarding violations ofhuman rights in accordance with law, and record them as human rights violators.

NHRC has following authority to perform the following duties, as mandated in the constitution:

- Exercise the power to record statements and information, examine and receive evidence,and order the production of physical proof.

- May enter private property, conduct a search and seize any documents and/or evidencerelating to human rights violations.

- Enter government premises or other places, without prior notice, if the commission hasreceived information that a violation of human rights is occurring, and immediate actionis required.

- Order compensation for the victims of human rights violations in accordance with thelaw.

- Exercise and carry out its duties as prescribed by the law.- NHRC must submit its annual report to the Prime Minister, who then forwards such

reports to the Parliament.

40 The parliament approved the Human Rights Commission Act 1997, but the Commission could only be established in2000 amid the crisis of armed conflict due to lack of political commitment. In the meantime, the then King GyanendraShah declared direct rule in February 2005. After he seized power, a few months before the term of the five Commissionersexpired, he directly appointed five new Commissioners and they lasted until People’s Movement of April 2006. Afterwards,there were no Commissioners for 15 months in NHRC until September 19, 2007.


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National Dalit Commission of NepalNepal established a National Dalit Commission (NDC) as an Executive body in 2002. The NDCrecently formed its fourth successive board in 2010 that has a two-year tenure with 16 membersdrawn from different geographic areas of Nepal.41 The NDC strives to create a favourableenvironment in Nepal for the exercise of Dalit rights; recommends to GoN to amend policies anddiscriminatory laws; coordinates and monitors the functions of NGOs involved in the welfare ofthe Dalit community and their rights; implements programmes to abolish discrimination andprovides legal assistance to Dalits who have suffered injustice; participated and prepared reportsin accordance with the National Human Rights Action Plan42; and performs other functions toprotect Dalit, women, children and PWD. The NDC has been pressuring the Government to passa law making it a statutory body.

National Women Commission of NepalThe National Women Commission (NWC) of Nepal was established as an Executive body in2002 and later became a statutory body. The NWC is composed of a Chairperson, plus fourother Members and a Secretary and a staff including legal officers. The Commission hasdeveloped a five-year strategic plan; based on the role, responsibility and rights mentioned in the“National Women Commission Act” 2007. The Strategic Plan is based on NDC’s core values(i.e. Gender Equality, Social Equity/Inclusiveness, Diversity, Participation, Independence andAutonomy, Integrity, Accessibility and Accountability). The NWC seeks to protect andpromote the rights and interests of women and thereby effectively include them in the mainstreamof development and establish gender justice in Nepal.

Nepal’s Proposed Truth and Reconciliation Commission and Commission on EnforcedDisappearancesIn addition, there is now draft legislation to establish a Truth and Reconciliation Commission(TRC) for Nepal and draft legislation to establish a Commission on Enforced Disappearances(CoED) before the Parliament. As discussed in Section 5 of this report, the provisions of thedraft TRC Bill granting amnesty from prosecution for perpetrators of certain categories of crimeshave been criticized by OHCHR and other human rights organizations as running contra toNepal’s international human rights treaty obligations. The Evaluation Mission has raised otherconcerns regarding both the TRC and CoED draft legislation in regard to the administrativeburden that they stand to place on the OAG; the need for harmonization of all ancillary andrelated legislation; and the necessity for establishing inter-agency dialogue and cooperation in thisregard.

41 The NDC has six (6) divisions, among which include a “Monitoring, Evaluation and Statistical Division”, a “Law andHuman Rights Division”, “Information, Research and Human Resource Division” and a “Policy, Planning andCoordination Division”.42 There is no National Human Rights Action Plan at the moment. The time frame of the action plan has expired. TheGovernment is in the process of developing new one.


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4. The Evolution UNDP Nepal Governance Unit: Rule of Law andHuman Rights Programming 2001-2010

UN/UNDP has supported rule of law, access to justice and human rights in Nepal through legaland judicial reforms and support to the NHRC since 2001.

UNDP early support 2001-2006, 2007UNDP’s Second Country Cooperation Framework (CCF-2)(2002-2006, extended to 2007) statedas its overarching objectives the reduction of poverty in Nepal pursuant to the MDG targets setfor 2015 and lists among its immediate objectives: the strengthening of “the capacities andprovision of the legal machinery of democracy at the central level and local levels, therebyenhancing the meaningful participation of local communities in the development process,developing the capacities to respond to the needs of the poor and bringing about greateraccountability in respecting, protecting and fulfilling human rights.”

The CCF-2 also stated as an immediate objective “reducing gender inequities throughempowerment of women and facilitating their access to resources.” The CCF-2 noted thecontribution of the First CCF to the conceptualization and adoption of the Local Self-GovernmentAct (1999) and emphasized the importance of preparing a decentralization plan for Nepal as partof a “balanced approach between building national-level capacities and investing in programmesat the local and district levels.”43

These objectives were to be achieved by enhancing the capacities of NHRC and the facilitation ofa National Human Rights Action Plan; reform of legislation though a participatory process andthe development of a transparent and efficient system of justice through capacity enhancementsand modernization of case management. Other key outputs of the CCF-2 as envisioned weresupport to the establishment of arbitration boards at the village and municipal levels to settleminor disputes in conformity with the Local Self-Governance Act and support to strengtheningthe capacity of the Commission for Investigation of Abuse of Authority.

The CCF-2 was drafted and implemented during years of the “People’s Liberation War” andsome of the most difficult political times ever encountered by Nepal. Fundamental shiftsoccurred in Nepal’s political landscape in years 2006-2007. A Jana Andolan II (People’sMovement II, implying that it was a continuation of the peoples movement begun in 1990)occurred in 2006 leading to the adoption of a CPA (signed on November 21, 2006). The CPAformally ended the Nepalese People’s War that had lasted for more than decade.

In 2007, the Monarchy was abolished and the ICN was adopted through a political consensus. AConstituent Assembly (CA) was elected in 2008 pursuant to the CPA and ICN charged with thetask of drafting a new Constitution for Nepal and in the meantime also acting and conducting

43 The CCF-2 tracked the United Nations Development Assistance Framework (UNDAF) (2002-2006, extended to 2007)that was based on the Common Country Assessment (CCA) prepared by the UN Country Team in 1999. Taking a “humanrights based approach”, UNDAF 2002-2006 emphasized poverty reduction, human rights, women’s empowerment, theelimination of discrimination and local governance as overarching themes. Table 1.1 in the ANNEX of this reportsummarizes CCA 1999, CCF-2 and UNDAF 2002-2006 Outcomes and indicators. UNDP Nepal’s Governance Unitpursued four (4) main projects to meet the rule of law, justice and human rights outcomes of the CCF-2 2002-2006, 2007.In addition, UNDP executed the “Support for Peace and Development Initiatives” (SPDI) Programme (on behalf of thePeace Support Group Trust Fund) and supported the “National Human Rights Action Plan” Project of the Ministry ofFinance. These projects and initiatives are summarized in Table 1.2. below. The projects are discussed in more detail inSection 5 of this report.


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business as Nepal’s interim “Legislature-Parliament.” Other significant developments during the2006-2007 timeperiod included the “upgrading” of the NHRC to a Constitutional body (2007).

Political unrest and strikes occurred again in 2009 further destabilizing the country and givingrise to additional demands of minorities and Madhesi. Under the ICN, the CA is supposed tohave a new Constitution drafted by May 28, 2011, but significant contentious issues remain andthat date is looking increasingly ambitious.

UNDP support 2008-2012The UNDAF 2008-2012 and CPAP 2008-2012 reflect Nepal’s political events and institutions;and contain a new emphasis upon Peace Building, Human Rights, Gender, Social Inclusionwithin Governance programming. UNDP also conducted an Assessment of Access to Justice inArmed Conflict in 2006-200744 that fed into the process of drafting the UNDAF and CPAP 2008-2012.

The relevant CPAP 2008-2012 Outcome for purposes of this Mid-Term Evaluation is Outcome2.2: “Responsive and accessible justice systems to promote gender equality, social inclusion andthe rule of law, including formal and informal processes.”

To achieve this Outcome, UNDP focuses on the following:

Further support to the seven pilot courts which are to become models for replication includingbenchmarks on making the courts pro-poor, women-friendly, and inclusive in their servicedelivery (as of January 2010 the Supreme Court had taken over the initiative);

Improved access to legal services at the local level, including through the creation andstrengthening of Para-legal committees and expansion of mediation;

Institutionalizing court referred mediation establishing and strengthening court referred mediationcentre in the district courts

Strengthening the directorate of the execution of the court decisions Support to review and amend legislation to meet international standards and treaty obligations; Providing access to justice for the victims of gender based violence by establishing legal aid desks

and building awareness of the implementing authorities and people at large on the recently passedanti-domestic violence law.

Strengthening the NHRC in monitoring, investigation, documentation and reporting of humanrights violations

Strengthening the human rights treaty divisions, Developing human rights audit plan and indicators for the promotion of civil and political rights

and socio-economic and cultural rights Supporting the commission to ensure human rights friendly constitution, and

44 UNDP’s study “Access to Justice During Armed Conflict in Nepal” (UNDP Nepal 2005) identified links betweenconflict and lack of access to justice in Nepal. The study surveyed Nepal’s legal landscape, identified certain gaps inlegislation that hindered access to justice, and catalogues experiences of users and providers of justice services in thecountry during the armed conflict. It found that lack of justice of the poor and disadvantaged in Nepal was a root cause ofthe armed conflict and also intensified the conflict. The study concluded that A2J “should be an essential component ofany peace and development effort in Nepal” and outlined measures such as continued capacity building of the judiciary,courts, police and NHRC to investigate and try cases of rights violations and grave abuses. It further underscored theimportant role that informal community-based justice mechanisms such mediation and traditional dispute resolution canplay in Nepal towards achieving access to justice and peace. The study was groundbreaking in that it was one of the firstever studies of A2J in a conflict zone. It laid the groundwork for the project document for UNDP’s “new” A2J projectand the subsequent UNDP-BCPR assessment and Draft Strategic Partnership Framework. (Note: UNDP links betweenA2J and Peace Building are discussed in more detail in Section 6 below).


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Strengthening the commission for better coordination and collaboration.

The results framework for this component of the CPAP 2008-2010 is summarized in the Tablebelow:

CPAP 2008-2010 Results FrameworkIntended Outcome 2.2 Responsive and accessible justice systems to promote gender equality, social

inclusion and the rule of law, including formal and informal processesOutcome Indicators Selected existing discriminatory laws are reviewed and amended

Ratio of human rights cases resolved out of the total no. of cases submitted to NHRCIntended Output 2.2.1 Pilot court models graduated and ready for replication, and mediation system

strengthened for enhanced access to justice for women and excluded groups.Output Indicators # of months from filing to court decision in civil cases

# of months from filing to court decision in criminal cases% of disputes solved by paralegal committees% of total cases submitted to paralegal committees submitted by women% of total cases submitted to paralegal committees submitted by Dalits% of cases submitted by Dalits solved by the paralegal committees

Intended Output 2.2.2. NHRC capacity strengthened in monitoring, investigation, documentation andreporting of human rights violations

Output Indicators # of complaints of human rights violations investigated# of recommendations submitted to the Government# of reports published by the NHRC on monitoring and investigations# of discriminatory laws reviewed by the NHRC on human rights grounds andrecommendations for amendment proposed# of public hearings organized by the NHRC on discriminatory laws and onemerging issues


16

A Table appears in the ANNEX of this report that summarizes UNDAF 2008-2012 and CPAP2008-2012 Outcomes and Outputs relevant to governance, rule of law, justice and human rightsand lists the UNDP Nepal Governance Unit related projects for this same time period.

To produce these outputs, UNDP is currently supporting two projects – 1) Enhancing Access toJustice for Consolidation of Peace in Nepal (originally entitled Enhancing Access to Justicethrough Legal and Judicial Reforms), 2) Strengthening the Capacity of the National HumanRights Commission. In addition, there are potential synergies between the work done under theJustice Outcome, and the work being done under the Peace building component of the CountryProgramme. The latter includes support to the constitution-making process, through the Supportto Participatory Constitution Building Project, which, among others, is building the capacity ofConstituent Assembly members to produce a new constitution. Other work is being initiated tostrengthen local capacities for peace committees. These projects are summarized in a Table in theANNEX. The projects are discussed in more detail in Section 5 of this report.

Currently, several UN agencies present in Nepal, among which UNDP, are exploring the ways ofengaging in a more coordinated fashion (as part of UN coherence) under the new Rule of Lawinitiative launched by the Rule of Law Coordination and Resource Group (ROLCRG) lead by theDeputy Secretary General of the UN.

Intended Output 2.2.3. Selected existing laws reviewed and amendments drafted and new legislation draftedas required by Nepal’s treaty obligations and other international human rightsstandards

Output Indicators # of revisions and new legislations drafted# of discriminatory laws amended or abolished


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5. Key Findings: UNDP’s Contribution to Establishing Responsive andAccessible Justice Systems to promote gender equality, social inclusionand the rule of law, including formal and informal processes in Nepal2001-2010.

CPAP 2008-2010 Outcome 2.2“Responsive and accessible justice systems to promote gender equality, social inclusion and the rule of law,including formal and informal processes.”

5.1 UNDP Support to Courts and Mediation for Enhanced Access to Justice 2001-2010

CPAP Output 2.2.1 Pilot court models graduated and ready for replication, and mediation systemstrengthened for enhanced access to justice for women and excluded groups.

The Evolution and Structure of UNDP Projects for Rule of Law and A2J 2001-2010UNDP supported its early outputs in Rule of Law and Access to Justice under the previous CCF-22002-2006, 2007 through the following projects:

- Reform of the Judiciary Programme (RoJ; 2002-2006, 2007 (Components Iand II) (NEP/00/012) -

- Strengthening the Rule of Law Programme (ROL; 2001-2005)(NEP/00/011)- Enhancing Access to Justice through Mediation in Court Cases and

Strengthening the Community Mediation Practices (A2J Programme; 2002,2003-2006,2007)(Phases I and II, with extension)(NEP/02/M01)(00032399)

UNDP has supported the achievement of CPAP 2008-2010 Output 2.2.1. via the project- Enhancing Access to Justice for Consolidation of Peace in Nepal

(00049638)


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The execution modalities, funding levels and a description of each of these projects appear in theANNEX. UNDP projects together delivered support to CPAP Output 2.2.1. 2001-2010 in sixmain areas: a) capacity building of the courts and judiciary; b) a Pilot Court Programmeimplemented in seven (7) districts; c) support to court-referred mediation in twenty (20) districts(and later support to the Supreme Court in developing a system-wide court-annexed mediationprogramme); c) legal aid—in the form of support to bar associations and the establishment ofLegal Aid Desks at police stations in four (4) districts; and d) community-based justice initiativesat the local level—via community mediation committees in four (4) districts and paralegalcommittees in seven (7) districts. UNDP A2J also supported various legislative-draftinginitiatives 2001-2010 through the above projects and its support to NHRC (as discussed inSection 5.3 below).45

45 Overall Actual Expenditures for RoL and RoJ projects 2001-2006 were as follows: i) RoL Project (2001-2006): USD740,419; RoJ Project (2001-2006): USD 1,547,062. The Evaluation Team requested data from the CO for Expendituresunder the A2J I and II and “Mediation projects” 2002-2007, as well as to date expenditures under the new A2J project“Enhancing Access to Justice and Consolidation of Peace in Nepal”, but as of the date of this report this information hadnot been supplied by the CO.

UNDP Intervention: judiciary, courts, mediation, community justice and legislation(Program & coverage) 2001-2010

Capacitybuilding

Pilot Courts(7 Districts)

Court referredmediation(20 Districts)

Legal AidDesks(4 Districts)

Community-based justiceinitiatives

SupportforLegislative Drafting

CommunityMediation(4 districts)

Para Legalprogram(7Districts)

Training tojudges andcourt staffers,Ministry oflaw, Justice(MoLJ),ConstituentAssembly(CA),CommunityMediators,Paralegals

Morang Morang Morang, …………… Morang Supportfordraftingcivil code,CivilProcedureCode,PenalCode,CriminalProcedureCode,Sentencing Bill andMediationBill.

Siraha Siraha ……….. ……………..

Sirah,

Kapilbastu, Kapilbastu ……………… ……………..

……….

Banke, Banke Banke ……………..

Banke,

Kaski, Ksaki Kaski, ……………. ……….

Chitwan Chitwan ………… ……………..

……….

Kathmandu. Kathmandu Kathmandu ……………. ………….……………. ……………. ………. Bara……………. +13 others …………… ………….. Dhanusha……………… ………….. ………… Doti,……………. …………. Kailali Kailali……………. ………….. Dang …………..……………… …………….. Udayapur ………….………………. ……………….

.Surkhet Para Legal

program(7Districts)


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5.1.1. Overall capacity building of the Judiciary and Courts in NepalThere are three functions of the Judiciary and courts in Nepal: i) Adjudication; ii) Execution ofJudgments; and iii) Court Management (including execution of the Supreme Court’s StrategicPlan). UNDP capacity building and training for the judiciary are perceived to have impactedfavourably to upon both the adjudicatory and court management functions of the courts during2001-2010. There was little or no demonstrable improvement during this same time period in theexecution function of the courts, but UNDP did not target this function directly.46

Highlights of UNDP supported capacity building and trainings, workshops and interactions forthe Judiciary and court staff 2001-2010 included the following:47

- Basic training on record keeping to non-gazette staff of pilot courts and related appellatecourts

- Computer training for officials of the Supreme Court in software engineering and LANmanagement

- A two-week long training programme at the Institute for Judicial Administration in thePhilippines on judicial reforms, court management and case-flow

- Support of a study on Human Resources Management for the pilot courts and relatedappellate courts

- Support to preparation of model court forms, case reporting and diaries.- A preliminary study on case flows and court administration conducted in preparation for

the establishment of pilot courts- Supporting two officials of the Supreme Court to earn their LL.M.s from Kathmandu Law

School- Procurement of computers/hardware/furniture/law books for pilot courts and appellate

courts- Training on land management and survey management for land surveyors who work with

the courts- Orientation on “Forensic Medicine and Forensic Sciences” for judges- Generalized trainings for judges and court staff on civil and criminal law, environment,

intellectual property rights, human rights, forensic science and mediation.- Provision of computers, printers, photocopying machines to the Judiciary and Judicial

Service Training Centre (JSTC)- Development of training modules for Court-referred mediation and training on court-

referred mediation to court officials48

- Training on SGBV, human rights and social protection to the judges and senior officialsof the court

- Training on court referred mediation to the court staff, lawyers etc- Human Rights based Approach to Access to Justice training to the court officials and

officials of Law Commission, OAG and Bar Association,- Study tour in Australia on criminal code and procedures

46 Responsibility for judgment execution rests primarily with the Executive branch of the state; but the Judiciary coordinatesand provides information to the Executive.47 Complete tables of trainings and workshops (including those regarding legislative drafting initiatives) delivered underUNDP projects NEP/00/12 and NEP/00/11 appear in Annexes I to IV of the “Reform of the Judiciary ProjectCompletion Report” (2001-2006).48 Additional trainings on court-referred mediation were conducted for judges, court staff and stakeholders (i.e. barassociations and mediation centre staffs) under UNDP project NEP/02/M01 2002-2008 and are detailed in UNDP’s“Assessment of Mediation-related Activities of A2J, RoL and RoJ Projects: Shifting Challenges and New Opportunities”(December 2008).


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5.1.1.1. AdjudicationIn terms of adjudication, it appears that the overall quality of judicial opinion writing improvedduring 2001-2010, as a result of trainings provided by UNDP and other donors. Moststakeholders interviewed agreed that the professional competence of judges in Nepal hadimproved as a result of trainings delivered by UNDP 2001-2010.

Judicial opinions issued in Nepal during this time period exhibit improvement and an increasingincidence of citation to international human rights treaties in judgments of the Supreme Court andlower courts during 2001-2010. The Supreme Court itself stated to the Evaluation Team thatthere had been a “sea change” in the quality of judgments being issued in the courts since 2001 asa result of UNDP support, with the Supreme Court referencing international treaties and otherdocuments.

The Evaluation Mission also notes that in many cases the court has recognized discriminatorylegal provisions and issued judicial orders to the GoN to amend discriminatory laws andprovisions against women on the basis of international human rights treaties.49 Furthermore,several public interest/social interest actions were filed in the Supreme Court to repeal existingdiscriminatory legal provisions against women.

The Supreme Court has cited the international instruments, to which Nepal is a party in severalcases, but there are inconsistencies in interpretation regarding their applicability and no clearprecedents have been established.50

In cases involving Dalits such as Kamanand Ram and Others V HMG and Others51, the SupremeCourt has issued writs instructing local officials to work towards the eradication ofuntouchability. But other decisions indicate that, despite an overall improvement, the SupremeCourt and lower courts are still not sensitive on the issues of Dalits and their rights. 52

49 Meera Dhungana Vs. Cabinet Office of Nepal Government, Year 2059 Writ No. 110, decided on 2061/ 4/ 14/5,Sapana Pradhan Malla Vs. The Nepal Government, Year 2062 Writ No. 98, decided on 2063/3/29/5, Special Bench, TekTamrakar Vs. The Government of Nepal, Year 2060 Writ No. 121, decided on 2062/5/30/5, Special Bench, MeenaNeupane Vs. Appeal Court, Pokhara, Year 2062 Writ No 12, decided on 2063/1/28/5, Rama Panta Kharel Vs. Ministry ofWomen, Children and Social Welfare, Year 2062, Writ No. 78, decided on 2063/10/18/5, Meera Dhugana Vs. PrimeMinister of Nepal and Cabinet Office, Year 2062,Writ No. 114, decided on 2063/8/7/5; Bishow Kumar Das Vs. TheNepal Government, Case: Rape, Year 2059 Criminal cases no. 3240, decided on 2063/4/21/1, Urmila Devi BishowkarmaVs. Birendra Bishowkarma, Year 2061 Writ No. 3727, decided on 2063/10/23/3.50 Dinesh Kumar Sharma v. Office of Prime Minister and Council of Ministers NKP 2063 Decision No. 7757 p. 1136.51 Writ No.3643, 2057 (2002), Supreme Court of Nepal. In Kamanand Ram and Others, members of the Chamar caste wantedto give up their traditional occupation of removing the carcasses of buffalos, cows etc. When young Chamars refused to dothis dirty and risky work, members of the privileged castes forced them to continue it. This created a confrontationalsituation and they ostracized the Chamar Community. In this context, the petitioner challenged state inaction to eliminatediscriminatory treatment against the Chamar community in Siraha and Saptari districts. Petitioners sought an order toprotect their fundamental rights and to render assistance to the activities of the Nepal Ram Society Welfare Association,which was formed to protect and promote the Chamar community's rights. Disposing the writ petition, a Division Benchheld that: “In view of the Constitutional commitment towards eradication of the malpractice of untouchability anddiscrimination on the ground of caste it is not appropriate for Government offices like District Administration Office,District Police Office and local bodies like District Development Committees, Municipalities and Village DevelopmentCommittees to display apathy and negligence in carrying out their legal obligations. Those offices and institutions are dutybound to work towards eradication of untouchability and discrimination as enjoined by No. 10 (A) of the Chapter on Adalof the Country Code”. The Supreme Court issued a directive order to the defendants instructing them to always remainactive and alert in carrying out their legal obligation in this regard.52In another decision Rupak Dhakal vs. Prime Minister and Cabinet Office Singhdarbar, Year 2061, special writ no. 55,2063/2/25/5issued on May 12, 2006 the Supreme Court found that rule 10 (3) of the Scholarship Regulation, 2060 thatstated "the available scholarship should be secured for ethnic groups, Dalit and women as 10, 10 and 20 percentrespectively". But that other provisions of the Scholarship Regulation which provided that “students belonging to ethnicgroups, Dalit and women will be eligible for application even if they scored only 50% of the marks" were void on theground that they were inconsistent with the Nepal Constitution, 1990's article 11(3) and were not consistent with the spirit


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The Supreme Court’s writ jurisdiction continues to be problematic and there are some notablecontroversial decisions deemed by civil society not to respect the rights of women and minorities.In many cases the Court has made directive orders instead of voiding the discriminatoryprovisions at issue. It can also be said that the majority of such decisions appear to beaccommodative instead of transformative.

With regard to overall rates of adjudication and judicial efficiency, statistical data paints a mixedpicture of improvement 2001-2010. Statistics generated by the Supreme Court53 for years 2004-2008 (the only official source of statistical data on the court system in Nepal) indicates noremarkable improvement in the functioning of the appellate courts or their rates of case disposal;however, some improvement, albeit uneven, was measurable in the district courts, while theSupreme Court significantly improved its functioning and rates of case disposal and backlogelimination.54

5.1.1.2. Court managementIn terms of court management, all stakeholders interviewed expressed the opinion that UNDP in-kind contributions, infrastructure development, and trainings 2001-2010 greatly enhanced thecapacity of the Supreme Court’s and lower courts’ management skills, allowed courts to publishannual reports and formulate Strategic Plans and policies.

The Supreme Court states55 that for 2004-2008 there was a marked improvement in the budgetaryresources of the courts. The judiciary received assistance in various forms from the donorcommunity and was better able to allocate these resources. The Court published a Law Reporter,Supreme Court Bulletin and Annual Report. Infrastructure of the courts was strengthened overalland judicial security was improved. A website for the judiciary was capacitated.

There was also an overall improvement in the manpower and skills of the judiciary; improvedrecord keeping (300,000 case files in various courts) and the infrastructure of courts improved.The judiciary also improved its research skills. Juvenile justice benches were established in 26districts and the commercial courts were strengthened. UNDP supported all of these functionsto varying degrees.

The UNDP supported Pilot Court Programme of the Supreme Court (discussed in detail below)

of substantive equality either. The Court further stated that it will not promote substantive equality and will reinforceinequality further, if the disadvantaged class is classified as a group, regardless of the basis and reason. Somecommentators believe that the Supreme Court of Nepal failed to understand the dynamics of constitution in the above caseand its broader interpretation to address the dynamic issues of contemporary society of the country. Nonetheless, thedecision did point out that there should be a comprehensive umbrella law to implement article 11(3) of the 1990Constitution.53 The Supreme Court is the only official source in Nepal for data on the court system and it only releases such data in theform of its Annual Reports and plans. The 2nd Five-Year Strategic Plan of the Nepali Judiciary is currently the best sourceavailable on the functioning of the courts and is heavily relied upon by the Evaluation Mission.54 According to the 2nd Five-Year Strategic Plan of the Nepali Judiciary, during 2004-2008 the disposal rate of SupremeCourt petitions was minimized by 9.4%. The total number of “backlog” cases at the Supreme Court was reduced by 9.09%every year 2004-2008. The overall data of the Supreme Court indicates a decrease in the registration of new cases and anincrease in the speed of disposal of cases. Yet, rates of case disposal at the appellate courts show no remarkableimprovement. Meanwhile, overall rates of case disposal at district courts show uneven progress with rates of case disposalhigher than the number of total registered cases in 2004-2006, but with case disposal rates deteriorating in 2007 only toimprove again in 2008. Overall improvement in the rate of case disposal for all courts in Nepal was 19.44% (2004) to16.17% (2008) showing an overall improvement.55 Id.


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enabled the Court to develop case management software and improve the management skills ofthe judiciary.

Following the lessons of the pilot courts, the Supreme Court internalized the significance ofinformation technology as an essential part of the overall development of the judiciary. It hasaccepted the necessity of the entire judiciary actively taking part in the management of records,information and data collection and the preservation of same; and is now geared toward applyinginformation and communication technology in its work.56 This said, many courts were not ableto maintain the IT or computers delivered to them by UNDP and still keep records by hand.

Meanwhile, the Court changed its rules of court to allow for court-referred mediations and hasimplemented a system-wide plan for court-annexed mediation as a direct derivative of UNDPsupport to court-referred mediation57 (discussed below). Significantly, while UNDP did notprogramme heavily with regard to the judgment execution function of the courts, all pilot courtsadopted a regional mechanism of judgment execution in 2006.

The training delivered to the Supreme Court by UNDP better capacitated the Court to formulateits Annual Plans and Strategic Plans. District Courts through the Pilot Court Programme werealso capacitated to formulate better management plans. For example, the Banke District Courtnow creates its own “Action Plan” that follows the Supreme Court’s five-year strategy.

According to the Supreme Court, UNDP’s trainings of the judiciary on mediation wereparticularly beneficial. Furthermore, as noted by the Registrar of the Banke District Court58, theUNDP sponsored trainings were one of the only opportunities for court registrars and judges fromall over Nepal to meet each other and discuss problems; however, the training curricula itself wasnot highly tailored to the day to day practical needs of the Judiciary.

While it is difficult to make a direct correlation between all of the above developments andUNDP support, stakeholders acknowledge that UNDP played a crucial role in strengthening theSupreme Court’s management function.

5.1.1.3. Criticisms of UNDP’s capacity building and training for courts and the judiciary 2001-2010While UNDP undeniably played a crucial role in improving the capacity of the courts andjudiciary during 2001-2010, the Evaluation Team notes significant “gaps” in UNDP’s approachto capacity building and training for the judiciary, as well as its relevance to CPAP Outcome 2.2:

a. There were no specific indicators developed by UNDP to measure and track theimpact of the training and capacity support upon the Judiciary;

b. UNDP did not articulate specific and transparent selection criteria for participants inthe training and most of the judges trained were senior members of the Judiciary asper the practice of the Supreme Court —training for new judges and junior staff

56 The 2nd Five-Year Strategic Plan of the Nepali Judiciary (2009-2019) affirms that access to computers has been enhancedat the Supreme Court and there has also been a sufficient increase in vehicles. Second Five-Year Strategy Plan of NepaliJudiciary 2009010, Supreme Court Nepal, 2009, p. 5657 The term “Court-referred mediation” as used in Nepal means the situation where the court orders the parties to attemptto mediate their dispute at a court approved mediation centre located within the community. “Court-annexed mediation”by contrast connotes the situation where the court orders the parties to attempt to resolve their dispute at a mediationcentre located on the premises of the court itself.58 Id.


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members was relatively lacking until recently and there was apparently no matchingof judges trained to their specific skills or job postings;

c. Many of the trainings appear to have been conducted in an ad hoc manner and werenot tied to a strategic plan or linked to the improvement of access to justice forwomen and minorities in Nepal per the Outcome;

d. Some judges selected for training in an international environment lacked the requisiteEnglish language skills necessary for them to fully benefit from the programme;

e. Some stakeholders interviewed who had participated in international training statedthat it had a “recreational” character to it and was not targeted to their day-to-dayduties in Nepal;

f. There was no proper mechanism implemented by the Court to share knowledgegained in the trainings and little in the way of a ToT component;

g. Apparently little attention was paid in the training to some key issues (i.e. judicialcorruption).

UNDP trainings going forward should be coordinated more closely with the National JudicialAcademy. UNDP has recently begun to target more junior-level members of the judiciary in itstrainings, which is encouraging. In 2009, over 240 and in 2010, 250 junior staff of the judiciaryhave been trained. The judiciary in general requires much more training on human rights.Enforcement of judgments is a key area of need for the court and UNDP has recently initiatedsupport for enforcement of judgments as part of the UNDP BCPR SPF. All stakeholdersinterviewed by Evaluation Team underscored the need for UNDP to include support for thetraining of quasi-judicial officials in Nepal in human rights and court procedures.

In general, stakeholders interviewed believed that UNDP’s outputs for the Judiciary and courtscould have been more robust and had a more strategic focus on women and minorities. Recently,however, with UNDP support, the Supreme Court has taken the decision to create “Fast Track”divisions for cases involving women at the District Courts. This is an encouraging and importantdevelopment. UNDP needs to continue to foster discussion of “best practices” within the Nepalijudiciary applied to the specific cultural and political context of Nepal.

5.1.2. The Pilot Court Programme and its DividendsMuch of the capacity building and training for the Judiciary and court staff occurred in the PilotCourt Programme supported by UNDP. Through the programme UNDP led the entire courtreform movement and, in the opinion of the Supreme Court, has improved overall levels of accessto the courts for citizens in the districts that benefited from the programme. UNDP maintained astrong comparative advantage in this sector throughout 2003-2010.

UNDP’s Pilot Court Programme was implemented pursuant to the UNDP ROL Project in seven(7) District Courts namely: Kathmandu, Morang, Banke, Chitawan, Kaski, Kapilvastu andShiraha. Its stated goals and objectives were to i) strengthen the efficiency of justice delivery(including shortening the time between case filing and disposition, thereby lowering transactioncosts to litigants and providing better services to court users, improving the image of the judiciaryand increasing public confidence in the judiciary); and ii) improve the capacity of judges andcourt staff by training, provision of IT and computer case management software and the adoptionof structural changes such as a case allocation method of assigning cases59, the establishment of

59 The lottery-system of case allocation relies upon all judges gathering in a meeting and drawing small numbered woodenblocks from a cloth bag. These correspond to the numbers of cases. The bag is passed around one or more times among


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dual benches (i.e. separate benches for criminal and civil cases) and the implementation of newpractices relating to case management, record keeping and docketing (including new printedforms and diaries/calendar of operations).60

Impact of the Pilot Courts on rates of case disposition and backlogAs noted by the Registrar of the Supreme Court, in terms the statistical data (as contained in theCourt’s 2nd five-year plan), there is little measurable impact of the Pilot Court Programme onrates of case disposition or backlog when compared against overall rates of case dispensation forall district courts; however, in terms of improving the quality of decisions there was “remarkableimpact”.

Most of the pilot courts were located in the Terai, which experienced a greater level of criminality2001-2010; and where armed gangs, drug dealers, smugglers and political party strong arms haveattempted to illicitly influence the judicial process. This impacted negatively upon their ability toadjudicate and reduce backlogs to some extent.

IT and computers were provided to all Pilot Courts. But in practice, the District Courts were notable to derive maximum benefit from UNDP support due to lack of any plan for maintenance orreplacement of old equipment and technology. The Evaluation Team observed that the districtcourts continue to prefer to keep some or all of their case records in the old manual system—evenat the District Court of Kathmandu (which arguably should be the nation’s “flagship” districtcourt).61

The Supreme Court does not disaggregate data by # of months from filing to court decision incivil cases and # of months from filing to court decision in criminal cases, nor for that matter anydisaggregation by women or minority groups such as Dalit. This lack of disaggregated datahinders stakeholders’ efforts to monitor the courts, including the Pilot Courts.

A recent case history survey conducted for the Supreme Court62 in 2009 Q3 of 7,535 pending andclosed case files at 21 courts across Nepal indicates that the typical mean age of a pending districtcourt case was 15 months. Whereas, disposed criminal cases in district courts had a median age of9 months and disposed civil cases at district courts had a median age of 9 months. Overall, as of2009 Q3, 67% of pending district court cases were more than 12 months old and 21% were over 2years old.63 This would appear to indicate that disposal rates in the district courts may in facthave deteriorated slightly over time.

the judges until all cases are assigned. This system is susceptible to corruption, however, and only works if all judges arepresent. An alternative method of assigning cases, the “case allotment” method, relies upon the senior judge to allocatecases to judges according to predetermined criteria. This method is generally viewed as being superior to the lottery systemand it creates a record of which judge was assigned a particular case.60 This was done throughout 2003-2008 pursuant to an “Action Plan for Operation of the Pilot Courts” that was preparedby the Supreme Court’s Task Force on the Pilot Courts in 2003, with UNDP support. Computer software speciallydesigned for the pilot courts was also prepared in 2003. Pilot courts were also some of the primary focal points for UNDPsupport to court-referred mediation. UNDP also provided technical advice and support with regard to the streamlining ofthe Civil Procedure Guidelines and the preparation and publication of an Administrative Manual.61 Court staff interviewed stared that they have limited training in human resources in the judiciary. In practice, there is nocomprehensive official computerized data-networking or nation-wide record keeping system in place; although the SupremeCourt informed the Evaluation Mission that it has a plan to fully enhance the Judiciary’s IT capacity in the near future.62 B. Walsh & Associates and Gandhi & Associates, “Judicial Mapping and Judicial Assessment: Legal and JudicialReforms to Strengthen Creditor Rights Project”)(Submitted to Supreme Court of Nepal and World Bank January 2010) at94.63 Id.


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According to the Supreme Court’s 2008 Mid-Term Review of its 1st Five-Year Strategic Plan:

“The district courts do not present a promising picture…. Whereas at thebeginning of the plan period the pending balance was 27,642 cases, this has nowincreased to 30,819 cases by the end of the third year. The per judge disposal ofcases in the first, second and third year is 276.69, 220.76 and 275.33respectively…[D]ata collected from larger courts such as Kathmandu and Saptaridisposed of only 47.70% of and 48.20% in the first year, 32.83% and 36.05% inthe second year and 50.75% and 43.99% percent in the third year. Major courtssuch as Morang, Mahottari, Bari, Lalitpur, Rupandehi, Nabalparasi and Bankecould not cross the 50 percent mark in the second year. The situation in the 7pilot courts is also not satisfactory. They could dispose of only 54.51%, 40.70%and 52.70% percent cases in the first, second and third year.”64

It is important to note that in the view of the Supreme Court the pilot courts were a project thathas ended and the Court is currently assessing the lessons learned and impact of the pilot courtsand whether or not to maintain and extend certain practices to all 75 district courts.

During the Evaluation Mission’s interview of the Supreme Court Registrar he stated:

“The nature of the pilot courts was transitory. Therefore, there is no justificationfor their continuation. The lessons were learned and were applied. Thus, there isno need to label courts as ‘pilot courts’. The UNDP project certainly does notequal a ‘failed project’. We have applied and will apply the elements that wewant in all district courts. The programme resulted in the case allotment systemand introduced software (even though it is now outdated), resulting in the courtsplans to rollout a new computers and a web-based case management anddocketing software in all 75 district courts. The Supreme Court is not in favour ofcontinuing all elements of the pilot courts per se and is currently debating themerits of maintaining separate civil and criminal benches, because there are only24 district courts in Nepal that have two (2) or more judges. The Supreme Courthas the strong concern, that the bifurcation of the bench may create ‘two systemsin one country’.”

The sustainability of “dual benches” in all District CourtsAs summarized by the Registrar’s comments above, the bifurcation of the bench at all courts inNepal is currently under discussion. There is currently no package of funds available tostrengthen the capacity of the dual benches that were developed through the pilot courts; anddistrict court judges report that there is not a clear division between criminal and civil benches inpractice at some courts. The Bar Association echoes the view that there is not sufficient staff toimplement a bifurcated bench throughout all 75 district courts in Nepal effectively.

64 Mid-Term Review of its 1st Five-Year Strategic Plan, Supreme Court of Nepal (2008) at p. 24.


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The Adoption of the “Case Allocation” method of assigning casesA key component of UNDP’s Pilot Court Programme was the abandonment of the Court’s“lottery” system in favour of a case allocation system. Under the new case allotment system,judges must hear the cases that are assigned to them and can only refuse to hear a case for cause(i.e. conflict of interest). This is a major development that would likely not have occurredwithout UNDP.

The Supreme Court believes that the abandonment of the lottery system has actually increasedjudicial accountability and lowered the perception that the system is susceptible to corruptionbecause judges cannot “pass” on hearing a case whenever they want to.65 As reflected in the 2nd

year plan, however, some stakeholders still are not convinced that the new case allotment systemis an improvement and may in fact create windows of opportunity to influence a judge due to thefact that parties to the case know well in advance which judge will hear their case.

Judicial corruption continues to be an issue in Nepal and there is a need for UNDP to supportanti-corruption initiatives targeted to the judiciary.66 The Chief Justice of the Supreme Courtheads the Judicial Council, which is responsible for staff transfers, and this opens up thepossibility of making “punitive” transfers or shielding judges from allegations and investigationsof corruption.67

Major challenges persist with district courts, especially those located in the Terai. Judgescontinue to spend an inordinate amount of their time in criminal cases on the judicial custodyfunction of the judiciary instead of actual trials; lawyers abuse the right to postpone cases;68 andthreats to the physical security of judges and court staff continue. Allegations of judicialcorruption are pervasive.

The Supreme Court’s Transfer policy for Judges and its impact upon sustainability of courtreformJudges interviewed stated that the Supreme Court and Judicial Council’s own transfer policy hadundermined the sustainability of the pilot courts. At the same time that UNDP was capacitatingthese courts, the Supreme Court itself via its transfer policy was eroding their institutionalknowledge. Judges and staff from non-pilot courts were transferred in and out of pilot courts andvisa versa during the life of the project with no provision for training of judges to enable them toadapt to courts with bifurcated benches.

The Judicial Council’s existing transfer policy is strict and makes no account for the skills or

65 This was echoed in interviews with both the Biratnigar and Banke District Courts. As reflected in the 2nd year plan,however, some stakeholders still are not convinced that the new case allotment system is an improvement and may in factcreate windows of opportunity to influence a judge due to the fact that parties to the case know well in advance whichjudge will hear their case.66 For best practice and approaches to combating judicial corruption, see the following: “Global Corruption Report 2007-Corruption in Judicial Systems” (Transparency International, 2008); “Reducing Corruption in the Judiciary” (USAID 2009);and “Rule of Law, Regional Best Practices: A Model Framework for a State of the Judiciary Report for the Americas”(International Foundation for Electoral Systems/USAID 2003).67 According to the Nepalgung Bar Association judicial corruption allegations are not taken seriously and it appears that theultimate consequence of corruption is that the judge is transferred to another court instead of being dismissed or, for thatmatter, prosecuted. The Nepalgung Bar related one case where it utilized the Supreme Court’s “hotline” to report aninstance of alleged judicial corruption and while the Supreme Court issued no formal response the judge in question wastransferred.68 Cases are sometimes also postponed “to a date certain” which is in fact the equivalent of postponing them indefinitely.


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prior training of judges who are transferred on average every two years.69 Additionally, somecourt staff interviewed stated that they were never really made clear by the Supreme Court whatwas the purpose of the pilot courts. Thus, it can come as no surprise that case statistics for thepilot courts are uneven.

Perception of litigants and lawyers of the “customer service” aspect of the pilot courtsAs of 2008, most of the litigants and lawyers acting on behalf them in the pilot courts still did notperceive that the service provided to them by court staff and administration was of a highstandard and had somewhat negative perceptions about the effectiveness of the proceeding ofcases in the pilot courts.70 Furthermore, district court judges interviewed by the EvaluationMission stated that in their opinion there is still relatively little access to justice for the poor,women and ethnic minorities in Nepal as of 2010.71

Additionally, the Bar Association states that political instability, the lack of a merit-based systemfor judicial promotion and transfer, and the fact that many judges spend large amounts of theirtime in political party activities also hinders the functioning of the pilot courts. The BarAssociation believes that UNDP should have also targeted the appellate courts in the Pilot CourtProgramme so that all levels of courts were capacitated and litigants and cases tracked at eachlevel of court.

Juvenile justice as a growing concern in NepalJuvenile justice issues are of increasing concern at district courts in Nepal (especially in theTerai). The district courts in the Terai interviewed by the Evaluation Mission reported havinghad cases where juveniles had been used as “drug mules”. There needs to be more trainingavailable in general on juvenile justice and procedures. There is currently only one (1) juveniledetention centre in the entire country located in Baktapur, resulting in juveniles often being keptin policy custody and allegations of torture of juveniles by police while in custody arewidespread.72 It does appear, however, that some courts in Nepal are aware of the rights ofjuveniles and have ordered that juveniles be removed from police custody when petitioned to doso.73 UNDP should explore joint programming with UNICEF to address the needs of juvenile

69 The example of a judge at the Biratnagar District Court is typical. The judge had been in Biratnagar for 9 months afterbeing in Kathmandu for two years (where he did civil cases) he was in a hill district court for a while and he did civil andcriminal cases…now he is in Biratnagar and is expected to specialize in criminal cases. He was not provided with anyspecial training before he was transferred to the pilot court. A judge in the Banke District Court related an almost identicalscenario.70 Assessment of UNDP Pilot Courts (Final Report)(UNDP 26 December 2008) at p. 27.71 A judge at the District Court in Banke stated that he had encountered many cases of women in Banke and in the districtswhere he had served previously. The judge noted that while there is a general Civil Rights Act in Nepal, jurisdiction doesnot sound in the District Courts, but only in the Courts of Appeal and the Supreme Court making it difficult for people tofile cases.72 Torture of juveniles remains a serious concern in Nepal. On the occasion of the 2010 International Day in favor of thevictims of Torture, Advocacy Forum released a report ‘Torture of Juveniles in Nepal’ which highlights that ‘Despite someimprovement after the introduction in 2006 of the Juvenile Justice Regulations, juvenile detainees are still more frequentlytortured than adults in Nepal’. Between April 2009 and March 2010 Advocacy Forum interviewed 957 juveniles indetention: 22.3% - or almost one child out of four – reported having been subjected to ‘torture or other ill-treatment at thetime of arrest and/or during detention’. In one recent case documented by Advocacy Forum Nepal, a 16-year-old boyDharmentra Barai died in police custody in unclear circumstances in Rupendehi District on or about 03 July 2010. The boywas arrested by the police and brought to Khajuriya Police Post regarding a lethal bicycle accident. He was taken dead tothe hospital in the early morning of 4 July, some hours after he was removed from the police station. The circumstancessurrounding his death are yet to be clarified and hospital records report various injuries on his body. Although aninvestigation team has been set up to probe into the death, strong doubts have arisen regarding its impartiality.73 For example, Patan Appellate Court issued verdict on 23 June 2010 that juveniles should be kept in reform homes, not inpolice custody. t,responding to a petition filed against the detention of 15-year-old Surendra Shrestha. Kathmandu District Court had


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offenders and outreach for youth--especially in the Terai—to ensure that the courts and policeaccord juveniles their rights.

Other Issues of Judiciary and court reformAs noted above, the Supreme Court of Nepal has recently issued its 2nd Five-Year Strategic Planfor the Nepali Judiciary that sets forth 12 Strategic Interventions for court reform in Nepal. TheSupreme Court also recently commissioned a “Judicial Mapping and Judicial Assessment”(January 2010)(B. Walsh, et. al.) that sets forth extensive recommendations for judicial and courtreform in Nepal—all of which are endorsed by this Evaluation Mission.

UNDP lacks the resources to programme in all of the 2nd Five-Year Plan Strategic Interventionsor address all of the numerous recommendations raised in the recent “Judicial Mapping andJudicial Assessment”, however, UNDP should closely reference both of these documents whentargeting the adjudication, management and execution functions of the Nepalese judiciary goingforward.74

Future Structure of the Nepalese JudiciaryIt is beyond the scope of this Evaluation Mission to make policy predictions or pronouncementson the future structure of the Nepalese Judiciary; or, for that matter, to critique the variousproposals for a federal judiciary put forth by political parties or expressed in the Concept Paper ofthe CA Committee on the Judiciary. We can say, however, that the current concepts for thejudiciary, if adopted, will create new burdens for the Judiciary and courts.

The CA Committee on the Judiciary Concept Paper proposes a federal judiciary and a new tier oflocal/village courts to be organized under the authority of existing district courts.75 These newvillage and municipal-level courts would be empowered to settle small and minor cases and,thereby, to increase access to justice at the local level. The Judiciary Concept Paper also proposesto provide District Courts jurisdiction to hear appeals against the decisions of the subordinatevillage and municipal courts and to empower District Courts to punish persons, in accordancewith the law, who attempt to obstruct judicial proceedings or refuse to abide by or implement the

remanded Shrestha in Juvenile reform home on August 8 for his ‘involvement’ in drug peddling.Kumar Shah had moved the court, accusing the Hanumandhoka-based Metropolitan Police Range of defying KDC’s orderand keeping the child in police detention. Keeping a juvenile in police detention is against child rights, the bench observed,adding that Section 15 of the Act Relating to Juvenile Justice, 1991 and Rule 29 of the Appellate Court Rule, 1991 requiredthat a juvenile should be kept in reform homes. The bench directed MPR to let lawyers to monitor the detainee’s condition.It ordered MPR and KDC to clarify within three days whether Shrestha has been kept alone or with minors and whetherfacilities in the detention centre were satisfactory.74 The Evaluation Mission endorses the recommendations made in the Supreme Court’s recent “Judicial Mapping andJudicial Assessment”, but recognizes that UNDP lacks the resources to support all of them through its programming. Ofthat reports’ recommendations, priority areas for UNDP might include supporting the Supreme Court in the followingareas: enhancing its human resources and a merit-based system of appointments and promotion; establishing a JudicialConduct Commission; continuing to support the district courts to improve case docketing; record keeping and casestatistics (i.e. with hands on training, not simply more IT); removing the power of the CDOs to convict and imprisonoffenders; reforming and building the capacity of the OAG; publishing electronic versions of the laws of Nepal;supporting mobile courts in Nepal; reforming the legal profession and establishing CLE; building a comprehensivenational legal aid scheme; continuing to reform the lottery system of case allocation in the district courts and reformingcourt fee structures to ensure greater access to justice for the poor.75 While it would appear from the Concept Paper of the CA Committee on the Judiciary that Nepal will have a federaljudiciary with a new tier of courts at the village and municipal level, such a Constitutional outcome is neither certain norguaranteed in the current political climate. As noted in Section 6 infra, there are inconsistencies among the concept papersof the various CA Committees regarding the structure of the court system, judicial independence and the role of a SupremeCourt.


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decisions of a court.76

Such a federal structure with local/municipal-level courts—were it to be adopted in a newConstitution—would have obvious implications for the Supreme Court, District Courts, JudicialAcademy and Judicial Services Commission in terms of budgets, resources, capacity building andtraining in terms of staffing and enabling the new tier of courts to function. A need would alsoarise to train district court judges to exercise appellate jurisdiction for subordinate courts. Thismay also have implications for legal pluralism in Nepal, if local/municipal-level courts arepermitted to apply customary law in resolving disputes.

UNDP and other donors can, to a limited extent, anticipate and support the Supreme Court toprepare for the eventuality of change, by formulating a plan to transition the Judiciary and bysupplying the Court with knowledge in the form of information, models, best practices and casestudies of other countries that have transitioned from centralized to federal judicial structures.77

UNDP continuing support to Nepal’s district courts and UNDP supported customary lawascertainment research will help to ensure that district court judges and staff are prepared andequipped to handle any reform of the judiciary and the new responsibilities required of them oncea new Constitution is passed.

As further discussed in Section 6 infra, UNDP’s CCD to date has done an excellent job ofsupplying the CA with knowledge and information on comparative models of judicial structuresfrom various jurisdictions. UNDP A2J, in close cooperation with the CCD, should support theSupreme Court to adapt to whatever judicial and court structure is ultimately mandated for Nepalby a new Constitution.

5.1.3. Court-referred MediationUNDP scored a major success for court reform and access to justice via its support to court-referred mediation 2001-2010. In partnership with the Nepal Bar Association, UNDP supportedcourt-referred mediation at a total of 20 District Courts in Nepal, including the 7 Pilot Courts.

According to the Supreme Court UNDP’s support to court-referred mediation in Nepal was“pioneering”. Prior to UNDP’s involvement in this sector the Nepalese legal community did notproperly understand institutional mediation. UNDP facilitated advocacy with the legalcommunity and judges for the adoption of mediation. According to Justice Kaylan Shrestha,“without UNDP support, the process could have taken much longer”.

The Supreme Court notes that while many donors were active in community mediation during2001-2010, only UNDP was involved with court-referred mediation initially (achieving an impactthrough the creation of knowledge, advocacy and training about court-referred mediation as analternative dispute resolution mechanism). As a result, judges, court staff and lawyers in Nepalnow exhibit a great demand for training on mediation in every District and the Court hasimplemented a ToT element to its trainings on mediation. UNDP also contributed to the processof drafting a Mediation Bill that is now before the Legislature-Parliament.

The principal direct indicator of UNDP’s impact upon court reform and access to justice in Nepal

76 CA Committee on the Judiciary Concept Paper, Topics 25 and 28, et. al.77 The Canadian Bar Association reported to the Evaluation Mission that it has already begun work to produce a “JusticeSystem Transitional Plan” for the Judiciary. These meetings have involved UNDP participation. Work on the plan wason going as of August 2010.


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is the Supreme Court’s decision to adopt a system-wide plan for establishing a court-annexedmediation centre at the Supreme Court and, ultimately, similar centres at all 75 district courts inNepal.78

These official court-annexed mediation centres have been exclusively funded by the Judiciary’sbudget since 2008. The Supreme Court’s Mediation Committee79 regulates them. Courts referonly civil disputes to the centres. Representative matters have involved such issues as: property,divorce (only the negotiation of the partition of assets phase of the process), land (boundarydisputes), construction/buildings, commercial transactions and some family related cases.

The Court perceives that ultimately mediation is “low cost” when viewed in its totality, becausethe parties resolve the issue at stake themselves, thereby ensuring a greater “ownership” of theresult, maintaining the quality of relationship between them and reducing the potential for thedispute to resurface at a later date. Overall costs to the parties themselves and to the court system(in terms of judicial administration, oversight and enforcement) are lower than litigation.Mediation is also one of the best available mechanisms to lower rates of case backlog in thecourts.

In 2009, the GoN allocated 30 million Nepalese rupees for the establishment of official “court-annexed” mediation centres at all 92 courts in Nepal. This was pursuant to an amendment of therule of court to permit mediation.80 Court-annexed mediation centres have thus far beenestablished at the Supreme Court, 16 appellate courts and 37 district courts and are one of thehighest priorities for the court. The Supreme Court’s “roll-out” of court-annexed mediationcentres at the remaining 38 district courts is scheduled to be completed within the next four years,but the Court states that this is more likely to occur as early as end of 2011.

In 2009, the Supreme Court itself pursuant to its court-annexed mediation programme trained 447lawyers, judges and social workers. As of 02 August 2010, there were 1143 total mediatorsregistered in the Supreme Court’s Roster of Mediators in 54 different court-annexed mediationcentres across Nepal and every District Court had a minimum of at least three (3) trainedmediators. The Supreme Court had 159 registered mediators and 43 new applications pending,but not yet approved. As of this date, a combined total of 2844 cases had been referred to the 54court-annexed mediation centres by the courts with successful mediations in 431 cases. TheSupreme Court estimates that the overall success rate for court-annexed mediations is 15.3%.

The establishment of the court-annexed mediation centres by the Court is still in a relatively earlystage and presents possible programming opportunities for UNDP in terms of specialized trainingmaterials and publications.81 Going forward, the challenges of the courts with regard to court-

78 The Government of Nepal, Supreme Court and Nepal Bar Association embraced the importance of mediation throughamending the District Court Regulation, 2053BS (1996) in 2003. On the basis of the experiences of district court referredmediation in 2007, Supreme Court amended the Appellate Court Regulation, 2048 and Supreme Court Regulations 2041BS(1984) to institutionalize the Court Referred Mediation. It has also published compilation of that regulation for publicaccess with the support of USAID Nepal, ARD, Inc Rule of Law Project. The Supreme Court also developed theOperating Guidelines of Mediation, 2063 (___) for all level courts: Supreme, Appellate and District Courts. These operatingguidelines set some practical norms that help to regulate the court-referred mediation.79 The Court’s Mediation Committee is comprised of two Supreme Court Justices, Supreme Court Registrar, SupremeCourt Bar President. The Chief Justice appoints the Chairman of the Committee.80 USAID/ARD contributed significantly to the process of the court rules. Recently, the rules were further amended topermit judgment execution related disputes to be referred by the courts to court-annexed mediation centres.81 The new UNDP A2J project is continuing to provide training to judges and lawyers who are registered on the SupremeCourt’s roll of mediators in both court-annexed and court-referred mediation centres. As noted by the Banke DistrictCourt, the local judiciary currently has no jurisdiction to provide training to mediators, but would like to do so tosupplement the training that the Supreme Court has provided with UNDP support.


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annexed mediation are the provision of additional training for the district court judges, trainingthe staff of the existing 54 mediation centres, ensuring that the Mediation Act is passed,encouraging more lawyers to act as mediators and increasing the fees paid to mediators.

Also, without the physical presence of the parties at the mediation centre and their participation,mediation becomes an impossibility—unlike a trial, where lawyers represent clients, in mediationit is technically the clients themselves who have a face-to-face negotiation and their presence isrequired.82 Public awareness of this mechanism will ensure its sustainability in Nepal. UNDPshould support additional public awareness-raising on mediation.

The Future of the Kathmandu-based “Mediation Centre of Nepal”As a result of the establishment of court-annexed mediation centres, courts in Nepal will nolonger refer cases to community mediation centres as they did previously. This is expected tooccur subsequent to the adoption of the new Mediation Act83 at some point in 2011. The courtshave already ceased referring new cases to non-court mediation centres such as the MediationCentre of Nepal based in Kathmandu that had received UNDP financial support previously.

Thus, the sustainability of the Mediation Centre of Nepal and the role that it can continue to playin community-based mediation is currently at issue as are other such mediation centres (i.e. theBar Association in Biratignar is continuing to maintain its mediation centre in the absence ofdonor support).84

The impact of court-referred/annexed mediation on the rights of women and minorities in NepalThe Mediation Centre of Nepal found that overall approximately 50% of its cases were related towomen and the majority of disputing parties were from Newar community in which womensometimes face social norms that are discriminatory. Furthermore, the Mediation Centre reportsthat, in 2007, the disputing parties were female in around 30% of total disputes mediated andsettled. At the same time 59% of total mediated and 68% of settled cases at the Mediation Centredirectly involved women in 2007. The highest numbers of cases were registered in year 2007,declined by nearly 30% in 2008 only to spike again in 2009 and levelled off in 2010. This mayindicate that the need for mediation rises during political conflict in Nepal.

82 USAID has recently supported the dissemination of information on radio and television about court-annexed mediation.83 Currently, there are no adequate guidelines and substantial legal provision to maintain the standard of mediation activitiesat the courts and in communities. The Ministry of Law and Justice submitted the Mediation Act, 2066 BS (2009) Bill to theparliament for approval. The Bill gives a substantial legal recognition to both court referred mediation and communitymediation. Likewise, this bill provisioned for Mediation Council comprising with the Supreme Court Judges recommendedby Chief Justice of Supreme Court, Secretary of Ministry of Law and Justice, Secretary of Ministry of Local Development,Central Member of Nepal Bar Association recommend by Central Bar Association, Representative of NGOs working inmediation sectors and Register of Supreme Court.84 These centres currently exist upon the goodwill and manpower of volunteers (i.e. lawyers, retired judges and others), buthope to begin to charge for mediation services after the adoption of the new Mediation Act (which would be non-courtreferred mediations—except in districts where courts have not yet established an official court-annexed mediation centre).According to the Mediation Centre of Nepal, to date; altogether this centre trained 1300 to 1400 mediators. Now they haveonly 24 mediators in their roster.


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Statistics of Court Referred Mediation since 2005-2010: Mediation Centre Nepal

The data above clearly indicates that many women benefited from UNDP supported mediationinitiatives. Out of the total settled cases, more than 50% disputants were economically poor andsocially excluded groups and most of those cases were related with land and tenancy rights.85

Disaggregated data for Dalits and other ethnic minorities was, however, not available.

UNDP’s A2J project included on average 20% women in its training programmes on mediation,including training on court referred mediation. Gender justice was considered a very importantissue during the training. The UNDP supported Mediation Centre of Nepal also had a policy toinclude a women mediator in all mediations if one of the disputing parties was a woman. By2007, the number of women mediators had increased in the mediation centre.

85 Supra note 25

Year TotalReferredCases

Mediated Cases Back tothe Court

SettledCases

Unsettled Cases

CarryOver

New Cases Carry OverCases

TotalMediatedCases

2005 132 97 - 97 2 9(9.3%) 88 332006 362 238 33 271 3 74(27.3%) 197 1212007 540 469 121 590 16 1.37(23.22

%)453 55

2008 359 339 55 394 8 95(28.02%) 299 12

2009 478 378 12 390 5 86(22.4%) 304 952010 200 137 95 232 0 21(9%) 211 63Total 2,071 1,658 316 1,974 34 422(21.4%) 1,552 63


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UNDP Comparative Advantage “in Action”: Court Referred Mediation in Nepal


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5.1.4. Legal Aid in Nepal and UNDP supported Legal Aid Desks for WomenLegal aid is one of the important features of a democracy and helps those who are unable toafford legal representation in the courts to gain access to justice. In a country like Nepal, wherealmost half of the population lives under the poverty line, legal aid plays a very prominent role inbringing justice within reach of the poor, who would not otherwise have the access to the courts.Women, Dalits, Janajatis and other marginalized groups who lack social standing and languageskills cannot or are not able to approach the court in time of need or exercise their legal rightswithout such services.

To address this problem, a Service of Legal Aid was introduced in Nepal in 1970.86 A Legal AidAct was later enacted in 1997. The Legal Aid Act, 1997 is the first legislative provision to extendstatutory legal aid in Nepal. Currently, the legal aid system operates under both customaryjudicial practices and the Act. In addition, various CBOs and public interest law firms have alsostarted providing legal aid to indigents, minorities and other marginalized groups in Nepal,forming a loosely organized coalition for legal aid in the country.87

Against this background in 2009 UNDP’s A2J program lunched Legal Aid Desks for Women atpolice stations in 4 districts: Morang, Banke, Kaski88 and Kathmandu. The main objectives of thelegal aid desk are to assist female victims in police stations to file for FIR and assist womenvictims with legal aid and counselling. The cases presented at the desks have mainly involved:child marriage, divorce, domestic violence, polygamy, injury, rape, partition and so on.

The program is initiated in collaboration with the District Bar units in the respective four (4)districts, which provide 3 to 5 junior women lawyers to staff each Legal Aid desk. Theselawyers in each district work with their District Police Office particularly with the Women andChildren Service Centres in the police stations. UNDP training has capacitated these to providelegal assistance to the victims of SGBV.89 Since these are new junior lawyers, they facechallenges due to their relative inexperience in dealing with cases and provide counselling tovictims.90

According to the police interviewed, this program has helped some victims to apply for FIR91 andother applications required for court proceedings in general. The police officers from Morang

86 The history of legal aid in Nepal is not very long, in 1970s, the Supreme Court appointed two lawyers for the defense ofclients from the marginalized sections of the society. Those lawyers were responsible for providing legal aid to those clientswho could not pay lawyer's fees to file cases. At the beginning this service was confined in the Supreme Court and laterexpanded to all courts in Nepal (i.e., Supreme Court, Appellate Courts and District Courts).87 Despite the positive perspective of the Legal Aid Act, there are some limitations that prevent the effectiveimplementation of Act in practice for needy people. For example, under the Legal Aid Act, a person who requires legal aidis currently required to make an application along with a certification of low income to the Legal Aid Committee. Thus,persons who are in police custody or jail cannot access legal aid due to their inability to file such paperwork. TheEvaluation Mission notes that A2J is in the process of conducting an “Impact Evaluation of Legal Aid” that should bringfurther light to this topic.88 Kaski Legal Aid Desk reports as follows for 2009: Total received cases: 121; Child related cases: 7; Relating to rape: 3;Relating to domestic violence: 27 Cases relating to polygamy: 84.89 Legal Aid Desks for Women built upon UNDP’s early work in that took place under the UNDP “MainstreamingGender Equity Programme” (MGEP)(1999-2006). MGEP made significantly contributed to women’s rights in Nepal viathe its trainings on the monitoring of CEDAW, public awareness and outreach and the establishment of a legal aid cell (i.e.“Central Women and Legal Aid Committee” (CWLAC)) within the Ministry of Women Children and Social Welfare andthe support of psycho-social counselling to women victims of domestic violence. MGEP’s outputs resulted in enhancedaccess to justice for women and victims of SGBV.90 T. Tamata, at al, Field Project Monitoring Report, (Morang, Siraha and Dhanusha District, Jan 2010).91 Personnel of District Police Offices interviewed by the Evaluation Team stated that most of the women coming to LegalAid Desks are very poor and uneducated. They cannot afford a single piece of paper and a ticket for the registration of thecase in police station. When victims approach the Women & Children Service Centre (WCSC) of district police station, the


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district stated, however, that performance of this program is not as effective as it could be due tothe part-time nature of the lawyers’ employment.92

Sources of Legal Aid in Nepal:

The court's stipendiary lawyer: Each of the country's Supreme Court, Appellate Court and District Court has appointed astipendiary lawyer for a period of one year. They are there to provide legal aid to those poor and marginalized sections ofthe society, who cannot pay for hiring a lawyer and so on. In the Supreme Court, normally there are two stipendiarylawyers.

Central and District Legal Aid Committees (DLAC): There is a District Legal Aid Committee in each of around 53districts, where the Legal Aid Act, 1997 has been implemented. It has recruited legal aid lawyers for providing legalassistance in those districts. In the rest of districts, the appointment process is underway. Legal Aid Act is launched in all75 districts from December 2009. The performance of legal aid lawyers is, however, seen as not very effective because ofinternal problems. They are paid very low, and even the nominal payment is not dispatched on time. Currently they arenot getting their payment. In the past also, for around 16 months their payment was stopped and they had to hold a strike toreceive it.93 Therefore, the DLACs did not create tangible impacts in the larger context.

Nepal Bar Association: Nepal Bar Association is another source of legal aid in the country, which provides legal aidthrough its bar units in various districts. It has a unit in the Supreme Court and units in all Appellate Courts. But it does nothave its own funding for the legal aid and has to depend on various donors for the fund. Currently it is providing legal aidwith the assistance of two major donors, i.e. the Norwegian Bar Association.

Civil society organizations: Local and International NGOs are also found offering legal aid services from theirorganizations. The legal aid they provide seems more effective than other sources of legal aid. However, all of them aredonor-led. They provide legal aid as long as the donors support them and it ends as soon as the donors stop funding for theproject ends. Such legal aid projects are running for one to three years. Though there are various sources of legal aid, thereis no coordination and mutual support among the legal aid providers. It increases possibility of duplication of activities andjustice seekers get confused to which institution they should approach.

Members of civil society organizations interviewed by the Evaluation Team, as well as the Police,also complained that UNDP provided no mechanism for follow-up after women file a case withthe police. Thus, it is difficult to ensure the quality of the legal aid services being provided or totrack beneficiaries. After filing their case, female clients are left largely on their own unlessanother legal aid service or NGO takes up their case.94

Lawyers of the Legal Aid Desks, are advocates, but are not given the opportunity to representtheir clients in court. Instead, they only prepare legal documents, assist with making applicationsfor FIR, and coordinate with rehabilitation centres. Legal Aid Desk Lawyers are not entitled toprovide mediation services; and if found doing so, they will be monitored regularly by theproject, and must take action to avoid doing so in the future.

At times, the police are unable to provide adequate shelter for female victims. Occasionally,these victims are kept in common rooms of the police station rather than separate rooms. In

station refers the case to the lawyers of the Legal Aid Desk. Upon receipt of the case, the lawyers first try to resolve casesthrough mediation. If the case is not resolved through mediation, they will provide legal counselling and held the womenregister for FIR.92 The District Legal Aid Committees are also understaffed due to only nominal funding from the Government of Nepal(for example in Nepalgung there was formally a panel of lawyers that the District Legal Aid Committee could draw upon,but for the past three years, only one lawyer was appointed to serve as the legal aid lawyer to represent all legal aid activitiesin court which isn’t enough to meet the demand). The Police interviewed by the Evaluation Team stated that the legal aiddesks have had issues with lawyers scheduling and staffing. The lawyers are all part-time and set-up a routine of duty-hoursso that victims can access them in the office from 10 am to 5 pm. If the lawyers are not present during their appointedoffice hours, then the police call them and ask them to appear on behalf of clients if possible.93 “Legal Aid lawyer Do not Get Payment,” Kantipur Daily, (Sunday, 1 August, 2010). p 8.94 The Biratnagar Bar Association confirmed that the Pilot Legal Aid Desks had facilitated registration of cases with thepolice and assisted women with filling out medical forms, but that there was effectively no protection or follow-up forwomen who file complaints.


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Banke, the only present organization, CWIN, provides temporary shelter to women and children,who are eventually sent back to the police station. The same thing is happening in regard toproviding shelter and rehabilitation for women. Once victims approach the legal aid desk, theyare assisted by NGOs who arrange shelter and rehabilitation for victims by referring them to localservice providers who provide temporary shelter.

The female lawyers interviewed by the Evaluation Mission, echoed the criticism of the DistrictPolice Offices, but stated that the lawyers are doing their best to provide full services to the publicwith limited circumstances and resources. The lawyers indicated a need to provide a referralmechanism to victims of SGBV for psychosocial counselling. The lawyers also pointed outthe need to form legal aid desks in other police stations such as Area Police Posts and VDCs.

In addition, the lawyers get only travel allowances, which may not be enough to motivate them tocontinue their support as women lawyers currently face many economic, and social challenges tosustain themselves in the profession.95 UNDP should not ignore the gender dimension of itsintervention and the challenges faced by female lawyers in Nepal.

It is difficult to measure the full impact of the UNDP Legal Aid Desks due to their recentformation in 2009. The major impact of the UNDP Legal Aid Desks to date seems to be thedialogue that the initiative has created between police, lawyers and women who are victims ofSGBV.

The police were very articulate concerning SGBV and the needs of women who are victims ofdomestic violence. There appears to be general good faith on the part of the Police in trying tofulfil their role in the successful implementation of the UNDP supported Legal Aid Desks.96 Ininterviews with the Evaluation Mission, however, some stakeholders reported that they hadexperienced a high level of political pressure on the police at the local level regarding settlementof criminal cases like rape.

Establishing the Legal Aid Desk at district police stations is not enough. UNDP should generateinnovative ideas to build new components, such as linking the Legal Aid Desk with paralegals atthe VDC-level and conducting an awareness-raising program on legal aid services along withlegal rights and remedies (including copies of forms for FIR; identity cards; vital statistics, etc.).UNDP should also explore methods to strengthen the sustainability of legal aid.

95 Interview with women lawyer in Kathmandu.96 It remains to be seen what significant contributions the Legal Aid Desk will have on improving legal services in thecountry. The important question is what can be the added value of the UNDP project in a larger context. The Nepal BarAssociation’s legal aid intervention it is not yet sustainable even after almost 15 years of support and is even now seekingfunds from donors.


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5.1.5. Community-based MediationWhile UNDP did not maintain as distinct a comparative advantage in community-basedmediation as it did in court-referred mediation, it nevertheless made a significant contribution tothe development of this concept in Nepal through the RoJ/ROL/A2J projects 2001-2010 and hascontinued to support community mediation through its new A2J Project.97

UNDP began early support to community-based mediation in 2002 by funding study tours abroadfor parliamentarians and judges with a view to determining how to implement provisions of theLocal Self-Government Act that provided for establishment of “Arbitration Boards” by localbodies in Nepal (VDCs and municipalities). UNDP prepared a Manual on Arbitration Boards andprovided generalized trainings to local mediators in 7 districts during 2001-2006 (Kaski, Bardiya,Solukhumbu, Jumla, Dhanusha, Chankutta and Rupandehi districts) with a total of 865participants.

Due to the Conflict and a lack of political will, the provisions of the Local Self-Government Actpertaining to Arbitration Boards were never implemented by GoN; however, UNDP and otherdonors continued their support of mediation in Nepal at the community level.

UNDP proceeded to establish community mediation centres in four (4) districts: Udajapur, Dang,Surket and Kailali, and the mediators were provided with 40 hours of training. The training wascompleted in 2009. The Evaluation Mission observed enthusiasm among community mediatorsin the field during its visits to Eastern and Western Terai.

UNDP supported community mediation is receiving significant recognition from VDCs andcommunities in some locations (i.e. in Pahalmanpur VDC of Kailali district). Some VDCs areproviding financial support for mediation centres. At the local level, political parties, localleaders, and traditional dispute resolution practitioners have also committed to support themediators. They informed the Evaluation Mission that their communities favour mediation,because the disputants themselves are involved in the decision-making process, void of outsideinfluence, which ultimately promotes an equitable outcome.

The majority of cases registered in UNDP supported community mediation centres between 01June 2009 and 16 July 2010 settled (75%-85% on average); indicating that community basedmediation was a popular means of ADR in Nepal. Similar rates of settlement were evidenced inother districts around Nepal where TAF, DanidaHUGO and DFID (ESP) maintained communitymediation centres.

The overall rate of settlement of disputes for all community mediation programmes of all donorsfor the period 01 June 2009 to 16 July 2010 was 77.09%. UNDP A2J supported communitymediation centres settled a total of 629 cases during this time and a total of 2,413 cases by alldonors. Thus, A2J contribution to overall community mediations in Nepal was approximately25% for the above time period. The ANNEX of this report contains statistical tables forcommunity mediation and paralegal cases.

The cases submitted to community mediation centres during the time period 2008-2010 IUdajapur, Dang, Surket and Kailali reflect an almost even split between male and females, exceptin Dang which had 63% males and 37% females. Percentages for cases filed by Dalits in these

97 UNDP was one of many donors in Nepal who supported community mediation between 2001-2010. Apart fromUNDP’s initiatives in community mediation, The Asia Foundation (TAF) implemented a community mediationprogramme; DanidaHUGOU and DFID also implemented community mediation projects in different parts of the country.


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same districts during 2008-2010 appear to reflect the overall percentage of Dalit per 1000population in these same districts. For example, the percentage of cases filed at the communitymediation centres 2008-2010 for Dalits were as follows: Udayapur (17%); Kailali (9%); Dang(10%) and Surkhet (13%). Compared with the percentage of Dalits in the overall population ofNepal that is approximately 11.8% according to various estimates.98

This indicates that UNDP is reaching a percentage of Dalit that is in line with the overallpopulation. The Evaluation Mission notes, however, that the percentage of the population ofDalits in the districts where the mediation programme operates may today be higher than thenational average. Moreover, given the fact that this group is known to suffer a greater incidenceof normative and de facto discrimination and historical caste-based prejudice within theircommunities, UNDP should continue to support CBOs that assist Dalit with communitymediation.

Challenges remain for UNDP and other donors regarding community mediation. There is arelative lack of coordination between Donors to date, but UNDP Governance is exhibitingleadership in this regard by chairing a Donor ADR Coordination Group. A Strategy forCommunity Mediation as part of a greater rule of law sector strategy is needed.

UNDP’s initiative currently relies upon volunteers from VDC mediation committees, but thismay not be sustainable in the long run. Most mediators state that it will be difficult for them tocontinue to work without some minimal economic incentive. Without addressing this issue,UNDP runs the risk of exploiting some of the very same target group that it is seeking toempower (i.e. structurally disadvantaged women).99

Legislation regarding community mediation also needs to be strengthened. No legislation iscurrently in place except some provisions in court regulations. The proposed Mediation Actcontains only limited provisions for regulating community mediation.

UNDP should support the Supreme Court and other actors to ensure that traditional practices areaccounted for in mediations including: hill regions’ practices of “Mukhia”, and “PanchaBhaladmi”; and the Tharu Community’s “BhalBansha” or “Badaghar”. Since, nocomprehensive study has been conducted on these practices, it is difficult to access their strengthsand weaknesses. Currently, A2J project has put forth a ToR to conduct such a study.

There are also a number of synergies with UNDP Peace Building and Community Mediation.Justice Kalyan of the Supreme Court stated that he believes Local Peace Committees should berevitalized and capacitated for community-based mediation. Local Peace Committees are still inexistence, but no as active as expected.

98 There is a lack of disaggregated data on Dalits in Nepal. The above figure is from the Nepal Human DevelopmentReport 2009, citing 2001 Census data.99 Community mediators interviewed by the Evaluation Team during its Western Field trip explained that their VDC is largeand that they are scattered. They have to walk a great distance to do mediations and suggested that UNDP providebicycles, bags for documents and basic resources such as paper, pens, and pencils to help them do their jobs.


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5.1.6 Para-Legal Committees (PLCs)UNDP’s support to paralegals began in 2008 under the new A2J project and the Para-LegalCommittees (PLC) became active in Q1 2009. PLCs were formed in 7 districts: Morang, Siraha,Banke, Bara, Dhanusha, Doti and Kailali. The PLCs identify issues at the local level, createawareness among people on legal rights and human rights, resolve small disputes locally andrefer more complex disputes to District Resource Group (DRG) legal aid committees.100 Thereare now more than 1600 UNDP supported individual paralegals as the membership of the PLCshas expanded.

Many of the districts and VDCs selected by the programme are located in the Terai and have ahigh concentration of Dalit; making this initiative very relevant in terms of access to justice,conflict resolution/prevention and transitional justice. The PLCs have also reached remote areasof Nepal’s Far Western Region that lie at a distance of 2-3 hours walk from any highway. ThePLC's have dealt with a number of cases pertaining to domestic violence, social violence andproperty, family issues, rape, polygamy, trafficking, land disputes, neighbourhood problems, andother issues.

PLCs work at three levels as follows:

District Resource Group (DRG): DRGs are comprised of district level individuals whoreceive 12 days training from a national resource person. The main role of a DRG is to conducttraining for VDC paralegals and provide technical support. Social inclusion was one of the keycriteria in forming DRGs.

VDC-level PLCs and Advisory Committees: DRGs in-turn conduct the same 12 daystraining course for VDC-level PLCs in two phases (7-day basic and 5-day refresher). TheVDC-level PLCs contain 13-15 women from each respective VDC. Interestingly, VDC-levelAdvisory Committees contain several men—usually senior leaders—from the VDCs.

Ward level: Ward-level paralegals are the lowest level of UNDP paralegal conductingawareness raising and low-level dispute resolution at the village level. They receive only three(3) days training from the VDC level paralegals one of which contains some “mediation”training.

100 The objectives of the PLCs are to end caste and untouchability, to raise awareness of women and children’s rights,SGBV and caste discrimination. PLCs also establish a community security system to safeguard the people from risks offemale trafficking, violence against women and sexual exploitation. PLCs are also expected to resolve disputes within theircommunities through low-level “mediation”, provide legal assistance or counselling and refer all unresolved or complicatedissues to VCD and DRG-level PLCs/ lawyers.


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Overall, PLCs appear to have been active, but have experienced difficulty in attracting as large anumber of beneficiaries as expected in some districts monitored by the A2J Project in 2010 (i.e.Morang, Siraha and Danusha).

Statistical data indicates101 that UNDP A2J has contributed to an increase of access to justicethrough its PLCs in those communities where it was active 2008-2010, especially upon womenand Dalits. (The ANNEX of this report contains complete statistical indices for UNDP supportedcommunity mediation and paralegals submitted to the Evaluation Mission).

We note the highlights below.

101 Source: UNDP A2J Project and local CBOs/NGOs utilized by UNDP.


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i) The percentage of total disputes resolved by the UNDP PLCs remained favourable from 2008-2010.

% of disputes solved by paralegal committeesDistrict Total cases to paralegals Total cases resolved to dateMorang 197 191Siraha 270 253Banke 103 38 + 24 referred to DistrictBara 46 43Dhanusha 766 751Doti 33 30Kailali 73 63

ii) The overwhelming majority of cases in the UNDP PLCs were brought by women.

% of total cases submitted to paralegal committees submitted bywomenDistrict Cases brought by womenMorang + Siraha 68.13%Banke 80.0%Bara 76.1%Dhanusha No data submittedDoti No data submittedKailali No data submitted

iii) Total numbers of cases brought by Dalits tended to reflect the percentage of Dalits in theoverall population.102

% of total cases submitted to paralegal committees submitted by Dalits and % of casessubmitted by Dalits solved by the paralegal committeesDistrict %Cases brought by Dalits % Dalits’ cases resolvedMorang + Siraha 51.09% 48.87%Banke 0% to 50% 0% to 100%Bara 30.4% 92.9%Dhanusha No data submitted No data submittedDoti No data submitted No data submittedKailali No data submitted No data submitted

102 While exact current figures are not available, the overall percent of Dalits in the population is approximately 11.8%according to various estimates.


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The Evaluation Mission found in its interviews that DRG and Advisory Committee support, hasnot been uniform across all districts. The Evaluation Mission also finds that the amount oftraining provided to Ward-level PLCs (i.e. 3 days) was likely not sufficient (especially given thelow literacy rates and relative inexperience of the PLC members) to ensure the impact of thetraining upon the capacity of the PLCs and their work.

The Evaluation Mission also noted that PLCs at the Ward-level have been performing mediation(and even what appears to be low-level adjudication) in some alleged cases of domestic violenceor disputes. Going forward, in the event that UNDP continues with Ward-level PLCs, UNDPshould take measures to reinforce the respective scope of authority that ward-level PLCs possess.PLCs should proceed according to clear guidelines of how to call parties together and encouragesettlement. This might indicate a need for revised training materials that provide clear examplesof “best practices” in dispute resolution.

Civil society’s assessment of UNDP supported PLCsMembers of civil society in Kailali stated that there are three major problems with the UNDPPLCs: i) other stakeholders in the process did not receive training; ii) the sustainability of theparalegals is at risk unless they receive some financial incentive for the many hours that theydevote to the PLC; and iii) perpetrators have threatened the PLC members. UNDP A2J needs toprovide livelihoods to the paralegals. Members of civil society interviewed in Banke opined thatUNDP A2J does not have sufficient follow-up for its initiatives and is more focused on the courtsthan it is on women, minorities and the poor. The Banke group also criticized UNDP forworking with only a few points of entry in the field, not including enough stakeholders andfocusing only on the judiciary.

Civil society in both Kailali and Banke affirmed the impact of the PLCs with a perceived increasein awareness on SGBV and greater number of women willing to talk about these issues, but thatthere was a need for massive community awareness raising in the Terai, referral mechanisms,witness protection, community policing, elimination of political interference with the police,youth (i.e. “street law” programmes), linking the courts and NHRC with civil society, increasedinformation on UNDP in general, developing a long-term sector-wide strategy for access tojustice in Nepal. UNDP A2J was also criticized for lacking any synergy between the variousparts of it’s A2J programming and the lack of communication between various VDC PLCs in theTerai.


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A possible “hand-off” of UNDP supported paralegals to UNICEFA number of donors have had paralegals during the past decade in Nepal. Chief among these hasbeen UNICEF.103 Recognizing UNICEF’s perceived success in implementing PLCs, DFID hasrecently awarded UNICEF a substantial grant to “roll-out” its paralegal programme to all 75Districts in Nepal during 2011-2012. 104

The DFID funding represents an unprecedented opportunity for a member of the UNCT toimplement a truly comprehensive community-based justice initiative in Nepal. This leads theEvaluation Mission to make the recommendation that UNDP consider handing-off its paralegalsto UNICEF.105

The overall relative importance of devoting UNDP limited resources to “legal empowerment” andTransitional Justice mitigates in favour of UNICEF taking the lead with paralegals and UNDPfocusing on mediation, legal empowerment and Transitional Justice. OHCHR and especiallyUNMIN currently struggle with diminished legitimacies in Nepal, thereby increasing UNDP’srelative credibility and role in this Transitional Justice and peace process. Any handoff ofparalegals to UNICEF by UNDP should not be viewed as a “loss”, but an opportunity to free upresources for Transitional Justice and other initiatives.

UNICEF as part of any countrywide expansion should tailor its “global” training templates to thespecific context of Nepal.106 The Evaluation Mission maintains the opinion that the transitionaljustice and post-conflict context of Nepal, demands that in addition to women’s and children’srights UNDP/UNICEF target such issues as property disputes107, land tenure issues, economicempowerment of the poor/livelihoods/access to credit and fundamentally the rights of Dalits andother discriminated groups.

“Rural women’s lack of land rights limits their access to other livelihood assets that flowfrom the control of land. Few women have control over the income generated from the landtheir households cultivate. Fewer still are able to obtain loans or credit based on thehousehold’s land, or to exercise significant bargaining power within their communities.Instead, women are dependent on their relationships with male family members for theireconomic security and social status. If those relationships terminate by death, divorce orother circumstances, the women are left without any assets on which they can rely to sustaintheir livelihoods.”108

103 UNICEF started its PLC initiatives in the 1990s as a response to trafficking in women. UNICEF’s core mission is toimprove the lives of women and children and this objective is indeed paramount in Nepal. UNICEF currently supportsapproximately 570 PLCs in 23 districts in Nepal. Their activities include: 1) advocacy and awareness raising; 2) earlydetection and intervention; 3) case management through local mediation or referral; and 4) monitoring and reporting.104 The expansion will create a total of 633 new PLCs across 52 new districts that, when combined with the 570 existingPLCs and an additional 180 new ones planned for 23 existing Districts is envisioned to create a total overall figure of 1,383PLCs by end of February 2013.104 This will effectively provide coverage to one third of Nepal’s population.105 The Evaluation Mission likely would not be recommending a “handoff” so readily, if it weren’t for the fact of the DFID$10 million that UNICEF has received. This fact and the relative sophistication of UNICEF’s demographic analysis andplanning for its DFID funded “roll-out”, convinces us that in the interest of coordination and allocation of resources,UNDP would be best served handing off its paralegals to UNICEF and concentrating on community-based mediation (andmeanwhile expanding its focus beyond women’s issues/SGBV, to include a larger “legal empowerment for the pooragenda”).106 A 2009 Evaluation of the UNICEF Paralegal Programme noted, “the training manual developed for UNICEF byFWLD is excellent, but it does not include any detailed procedures to guide implementation…a complete re-write isneeded.” [Draft Report of Chris Robertson of May 2009 at p. 56].107 See, Ministry of Local Development’s draft bill for “Formulation of the Process of Legal Remedy and (Paralegal)Committee and Operational Procedure 2067 (2010), Section 8(4) that lists “property” as one of the enumerated categoriesof disputes that PLC can handle.108 Sundeep Bista, Mediation Specialist, UNDP A2J Project email to Evaluation Mission of 25 July 2010.


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All too often, community-based justice initiatives training takes the form of informingbeneficiaries of the existence of their rights without giving them any details on the proceduralmechanisms (i.e. necessary forms, locations of offices, filing fees, etc) that are required to availthemselves of remedies that deliver rights. It is simply not enough to “proselytize” localcommunities on their rights through public awareness. Knowledge of the existence of rightsmust be backed-up by concrete examples, details of procedures and clear mapping of referralmechanisms.

Nothing under the above scenario would preclude UNDP from continuing to be a knowledge-based resource for the paralegals and/or to provide training to them. In fact, we highly encourageUNDP to negotiate such a role for itself in the MoU with UNICEF for the handoff. (UNDPshould retain some % of “executable” programming out of the MoU with UNICEF). UNDP mayalso wish to support “mobile justice units” in take mediators into the field.

UNICEF, however, has a contract with a local NGO (“Forum for Women, Law andDevelopment) to train District Resource Groups for 2011-12 so clearly there will be an issue as towho trains and when and where they train.109

109 The Evaluation Mission notes that a point of debate exists as concerns the timing of the “hand-off” (with some A2JProject staff arguing that because the local-NGOs have only completed one year of what is designed as a 3-year contractthat the “hand-off” should not occur earlier than next year). Our conversations with UNICEF, however, indicate that theyare not interested in keeping the contracts with the existing NGOs, but want to transfer the Paralegal Committees to theLocal Development Office and/or the Local Women’s Office. We only raise the issue without making a decision. DFID’sfunding will expire in February 2013, so this might be a driving factor in the timing of any handoff.


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5.2 Assessment of UNDP Contribution to the Outcome via its Support to NHRC2001-2010

CPAP Output 2.2.2. NHRC capacity strengthened in monitoring, investigation, documentation and reporting ofhuman rights violations

- Capacity Development of the National Human Rights Commission (CDNHRC, 2002-2008)- Strengthening the Capacity of the National Human Rights Commission (SCNHRC 2009-

2012).

The CDNHRC and SCNHRC projects have effectively supported CPAP Output 2.2.2.: “NHRCcapacity strengthened in monitoring, investigation, documentation and reporting of human rightsviolations in Nepal 2001-2010.110

5.2.1. UNDP Support to NHRC Infrastructure, Organization and Operational Capacity 2001-2010Former NHRC Commissioners interviewed by the Evaluation Team, stated that UNDP financialand technical support during 1999-2000 was crucial in capacitating the NHRC in its early work.NHRC had no regular funding initially and was heavily reliant upon UNDP and other Donors.111

UNDP, along with other donors and partners, effectively countered the Government’s reluctanceto fund the NHRC by providing infrastructure support, training, developing a long-term actionplan and supporting Nepal’s accession to/ratification of international human rights treaties andregional arrangements.

UNDP enabled the NHRC to become established and to continue its work even during the yearsof conflict in Nepal. As a result NHRC was able to document human rights atrocities andconduct investigations and exhumations of victims even in the midst of on-going politicaltensions.112 This effectively set the stage for later modernization and institutionalization of NHRCand its investigations thereby advancing the Outcome in Nepal.

110 Overall Actual Expenditures for CDNHRC project 2001-2006, 2007/08 was: $4,642,296. Total projected budget for thenew SCNHRC project 2009-2012 is: $2,300,380. The execution modalities, donor funding specifics and a description ofeach of these projects appear in the ANNEX to this report.111 “NHRC was starved for funds ab initio” according to one former NHRC Commissioner interviewed by the EvaluationMission.112 A former NHRC Commissioner interviewed by the Evaluation Mission recounted that UNDP support was crucial tothe resolution of several incidents during the conflict. For example, one incident involved the capture of 3 people in aVCD. NHRC received a message of the capture, contacted the Maoist commanders, condemned the attacks and with thesupport of UNDP took helicopters to the location, talked to the Maoist on the ground and negotiated the release of thecaptives.


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UNDP and its consortium of donors113 supported all aspects of NHRC’s operations and itsmandate including: basic infrastructure development, operational capacity development,organizational capacity strengthening, management and administration systems strengthening,investigation and monitoring, monitoring of the CPA, and capacity building of NHRC staff.114

UNDP also supplied NHRC with vehicles, office furniture, computer equipment and IT support,photocopiers and fax machines.

These deliverables, technical advice and financial supports have greatly facilitated the NHRC’swork and advanced the Outcome significantly during 2001-2010 in the following three majorareas: 1) Protection of human rights by supporting complaints handling and investigation; 2)Support the protection of human rights through monitoring and advisory programmes; and 3)Promotion of human rights through education and outreach programmes.

UNDP further supported the achievement of the Outcome, through the establishment andexpansion of NHRC’s regional offices in Nepalgunj, Biratnagar, Pokahra and Dhangadhi andcontact offices in Jumla, Rolpa, Butwal, Jankapur and Khotang, which helped increase localcitizens’ access to NHRC and ability to file complaints. UNDP also assisted NHRC in thedevelopment of the NHRC Strategic and Program Plans 2004–2008 and 2008-2010 by which theNHRC has been implementing its programs.

Throughout NHRC’s existence, UNDP has supported training at the national and internationallevels for NHRC Commissioners and staff. These trainings were primarily focused on conceptsof basic human rights, international human rights standards, investigation, monitoring, anddocumentation and reporting socio-economic rights, treaty-monitoring, and legislative drafting,and IT.115 Stakeholders interviewed by the Evaluation Team at the NHRC stated that thetraining improved the efficiency of their work and increased their capacity to carry-outinvestigations and exhumations, monitor human rights violations, formulate recommendationsand conduct outreach activities both during the period of armed conflict and in a post conflictenvironment in Nepal.116

Prior to 2007, UNDP formed a committee to make comprehensive recommendations in the formof a position paper on the NHRC to the Committee on the ICN. This position paper, along withthe opinion of the international community of donors, contributed to Nepal’s decision to enshrinethe NHRC as a Constitutional body. With its new status, the NHRC retained its investigative andoutreach mandates, and received several new powers (i.e. the ability to publish a “blacklist” with

113 In 2002, a consortium of donors including UNDP, Austria, Finland, Norway, Switzerland, UNICEF, Ford Foundation,UK, USA, Denmark, Canada and OHCHR formed the CDNHRC project.114 To analyse the true impact of the project, the political situation during the project implementation period should beconsidered. First, when project started to implement its activities, NHRC was just a year old and it was established underthe NHRC Act. Second, it was a time of intensive armed conflict in Nepal and incidents of human rights violations were attheir peak. Third, a year previous to the project’s implementation, in 2001, the government of Nepal had declared a state ofemergency that gave security services and other government actors expanded powers of arrest and detention and suspendedthe fundamental rights of the people.115 The staff interviewed from all offices reported that the trainings they have received during the project period were usefulfor their work. Subsequent to these trainings, NHRC came up with various rules, policies and guidelines. Among these,some are approved by NHRC and implemented and in some cases, the drafts are ready, such as a Complaint HandlingManual that is prepared and implemented. Other NHRC policies include the Monitoring Rules, Prison Visit Checklist andGuideline, Monitoring Checklists for five thematic areas; IDP, Demonstration and child rights guidelines prepared andimplemented. Similarly, drafts were developed by NHRC for its human rights promotion strategy, collaboration policy,HRD policy, Rescue Team Guidelines, etc.116 UNDP’s prior trainings of NHRC and Commissioners (i.e. training in the Philippines on forensics) were deemed to havebenefited NHRC’s work and allowed them to conduct investigations and exhumations more efficiently in Nepal.


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the names of alleged human rights perpetrators; a power to rescue victims of human rightsviolations and a mandate to review laws).

UNDP support also enabled NHRC to develop a Police training manual, and support the NepaleseArmy to develop a training manual for soldiers and staff. Such support is perceived by NHRCmonitors to have resulted in an estimated 22% reduction in incidents of torture in Nepal.UNDP’s NHRC project also supported the formation of “Guidelines for Gender and SocialInclusion” and it’s “Monitoring Guidelines”. UNDP also facilitated meetings between NHRC andNGOs (i.e. to monitor bandas in 2009).

Furthermore, through their on-going support, UNDP and OHCHR have recently assisted NHRCto prepare and submit its report for the “Universal Periodic Review of National Institutions”(submitted to OHCHR in Geneva 05 July 2010). UNDP also helped NHRC work with theNational Women’s Commission (NWC) and National Dalit Commission (NDC) to produce theirreports. This is a direct indicator of the impact of UNDP support on the legislative initiatives ofNHRC and, tangentially, upon the NWC and NDC. Such support has advanced the Outcome inNepal.

____________________

A 2007 UNDP supported Evaluation of the NHRC117 led to awareness to address issues118 andcreated new mechanisms at NHRC (i.e. in general on social inclusion; to develop a Department ofGender Development in NHRC and a Special Reporter on Trafficking of Humans in Nepal).NHRC is currently reviewing its progress towards meeting the seven (7) Strategic Objectivesproposed in the NHRC Strategic Plan for 2008-2010.

The Evaluation Mission observes that a “gap” currently exists in the operational mandate andauthority of NHRC—i.e., it has the status of a Constitutional body per the 2007 ICN, yet itsimplementing statute/ by-laws have not yet been enacted by the Parliament.119 With UNDPsupport, NHRC jointly with the Human Rights Unit of the Prime Minister’s Office has recentlydeveloped a new draft bill on the NHRC that is submitted to Parliament. UNDP should continueto facilitate the adoption of NHRC’s implementing statute and by-laws.

NHRC’s work continues to take place amidst difficult security conditions in the Terai wherearmed groups continue to perpetrate human rights violations.120 NHRC staff and formerCommissioners informed the Evaluation Mission that there continues to be a need for training inmonitoring and evaluation, investigations, forensics and equipment. As of 2010, the regional and

117 The evaluation Report of CDNHRC in 2007 identified several gaps in the achievement of project outputs. Amongthese were the following: No significant impact of “numerous training” offered to staff; The Promotion Division” manyactivities –minimal impact”; Insufficient contact with government; Lack of analysis in human rights reporting; Lack ofstrategy to address backlogs case; Significant lack of diversity of the NHRC staff; Inadequate government funding, ‘endingto an unhealthy dependence’ on donor support; Overly “dependent relationship” with the predecessor to this project –CDNHRC 1; Lack of accessibility; Lack of expertise and experience in addressing “the discriminate, exclusion andmarginalization that affect a majority of Nepali people”.118 UNDP support to NHRC faced many challenges during the decade following the original inception. Beyond this, therewere internal differences of opinion among NHRC staff and Commissioners that at times became quite acerbic andsurfaced in the public eye, undermining the public’s confidence in the NHRC and its reputation.119 The Evaluation Mission notes in Section 5.3 below that lack of implementing legislation, by-laws and administrativeregulations are generally lacking in Nepal.120In April 2009, the government of Nepal revealed that a total of 109 armed groups were operating in Nepal: 20 of themwere separatists in nature, 12 groups otherwise politically motivated and the remaining 70 were said to be criminal gangs.Although the government initiated separate talks with a number of the political armed groups, none of the talks have so farresulted in substantial political agreements.


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districts offices are still not fully equipped to monitor and document cases of human rightsviolations on a regular basis. The regional and district NHRC offices lack sufficient systems fortimely access to resources for transportation, communication and documentation.121

The Evaluation Mission further observes that to date, neither UNDP nor the NHRC appear tohave undertaken any detailed initiatives to map out the nexus between activities of criminalgangs, political parties and human rights in Nepal. UNDP and NHRC should engage directlywith the senior leadership of the political parties in regard to human rights to the extent possible.

Furthermore, NHRC has been predominantly concerned with conflict related complaints andinvestigations over the last decade—to the exclusion of focusing on socio-economic and culturalrights. The Evaluation Mission believes that UNDP should support NHRC to adopt a morebalanced allocation of its resources and include more emphasis going forward on socio-economicand cultural rights in Nepal.

UNDP should also support NHRC to increase the percentage of female staff members at theregional level and include minorities such as Dalit on its staff. The Evaluation Missionrecommends that UNDP support NHRC to establish points of liaison between NHRC and theNational Dalit Commission and National Women’s Commission in Nepal that would facilitatedialogue between the organizations and coordinate human rights advocacy and outreach.

The OHCHR-NHRC Working Relationship and Spheres of ResponsibilityOHCHR has been a key partner of UNDP in its support of NHRC. In interviews with theEvaluation Mission, NHRC staff and former Commissioners stated that OHCHR expertise;technical advice and support were crucial in many NHRC investigations, policy-level interventionand capacity building to respond to human rights issues.122

NHRC staff and Commissioners admitted that there had been a number of differences of opinionbetween NHRC and OHCHR during the past several years, but that NHRC is interested tomaintain a very good working relationship with OHCHR. NHRC credits UNDP and theoutgoing OHCHR Representative for trying to facilitate ongoing cooperation between therespective staffs.123

121 The case software developed by UNDP originally was never fully utilized and is now several years old. NHRC states thatUNDP’s software was complicated and never accepted by the staff. NHRC doesn’t use it. It is the opinion of the currentUNDP project that the NHRC guidelines for case reporting are not detailed enough to track key indicators and this shouldbe an objective in the future. NHRC continues to need updated computer software for: i) investigations and ii) humanrights monitoring. As of 2010, the NHRC is still keeping track of cases only by hand in a block register. UNDP shouldprovide NHRC with assistance in the form of technical support and temporary staff as necessary to go back through all thecases and better categorize them. USAID is currently supporting NHRC to develop new computer software forinvestigations.122 For example, in 2002-2003 the Nepalese Army killed 49 people and NHRC organized an exhumation of the bodiessupported by OHCHR forensics. The bodies of the victims were successfully recovered, but no prosecutions resulted.NHRC recommended reparations.123 The current Secretary of the NHRC notes that OHCHR had already been in existence in Nepal for three (3) years at thetime that the NHRC was reconstituted as a Constitutional body by the ICN in 2007. In NHRC’s opinion its Constitutionalmandate made NHRC the premier human rights organization in Nepal (even if by way of comparison OHCHR was betterfunded and more sophisticated). This was the principal source of friction with OHCHR that led to various differences ofopinion as to scope of mission and authorities of the two organizations. For example, regarding exhumations pursuant tohuman rights investigations—where NHRC and OHCHR ultimately reached a MoU that investigations had to beconducted by NHRC with the support of OHCHR, not vice versa.


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OHCHR is a member of the UNDP SCNHRC Project Advisory Committee (PAC) and willcontinue to provide technical assistance to NHRC.124 OHCHR support going forward willinclude the following: i) implementation of the law pending before the Parliament; ii)implementation of recommendations of NHRC an the elimination of “roadblocks” in the process;iii) mobilize civil society in support of NHRC, human rights monitoring and investigations.

5.2.2. UNDP/OHCHR Support to NHRC Human Resources and StaffingThe majority of NHRC employees and staff at its national headquarters and sub-offices are all ontemporary contracts of 1 year as a result of the litigation filed against NHRC by staff members125

and the transition of NHRC from a statutory to Constitutional body.

After NHRC was raised to a Constitutional body it became subject to the recruitment and hiringrules of the Civil Service. In 2011 the majority of the NHRC’s existing staff contracts will expireand these staff will be forced to re-apply for their positions pursuant to the Civil Service rules.Unfortunately for NHRC, the Civil Service rules preclude males over age 35 and females overage 40 from joining the Civil Service. Thus, any existing NHRC staff members who are overthese age limits cannot re-apply for their positions by law. This will affect 98% of all existingNHRC staff.

The above-described situation means that virtually the entire current NHRC staff (national,regional and sub-regional) will be made redundant and replaced by new employees sometime in2011. At a minimum, this will create an extreme administrative burden on the NHRC andpotentially cause a “gap” of at least 3 months to a year in programming while NHRC completesthe hiring process and trains new staff. This is certain to affect the pace of NHRC’s work and itsquality and in fact is already impacting negatively upon the morale of existing NHRC staff andtheir willingness to work—especially those located in the field. Moreover, it represents apotential loss of NHRC institutional memory (as well as UNDP and other donor investment inthe skills of these employees).

The Evaluation Mission urges UNDP to respond to this event by providing NHRC with technicaladvice and in-kind contributions126 to enable NHRC to develop a staff plan and training for newstaff. UNDP is currently exploring such possibilities. NHRC estimates that the process of hiringnew staff will take 3-6 months. UNDP can support NHRC to develop ToR for staff, improveupon its organizational model, and develop publications and training modules for new staff.

Further infrastructure support and capacity building from UNDP and donors should likely bedelayed until NHRC resolves its staffing issues. Once NHRC hires new staff, UNDP should

124 NHRC and OHCHR have developed a guideline of the co-operation, operational modality, and also had series ofdiscussion on their mandate. The guideline aims at strengthening the commission’s role in monitoring and investigation ofhuman rights violations. The OHCHR would refer new cases to NHRC and follow up with support and cooperation in theinvestigation of those cases. But NHRC to date has not initiated investigations into nearly 75 percent of cases referred byOHCHR, including cases of alleged extra-judicial killing and torture stated in the report the United Nations HighCommissioner for Human Rights on the human rights situation and the activities of her office, including technicalcooperation, in Nepal dated 5th January 2010. To implement the guideline, UNDP’s 2 Million NRs CDNHRC project wassigned in July 2009, which will be implemented jointly by OCHR and UNDP.125 Following the elevation of NHRC to a Constitutional body a group of NHRC staff sued the NHRC in the SupremeCourt challenging its human resources and hiring practices as a violation of their rights. The Supreme Court ruled againstthe NHRC finding that the NHRC had violated the rights of the employees and that it was bound by the rules of the CivilService Commission.126 The MoF recently sent a letter to NHRC stating that as a Constitutional body, NHRC cannot use donor support forstaff salaries.


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support the provision of at least one (1) additional all Terrain vehicle at each NHRC regionaloffice and sub-office to enable staff to more effectively conduct investigations.127

5.2.3. The Implementation of NHRC Recommendations 2001-2010: Key Challenges and“roadblocks”

Despite a decade of financial and technical support by UNDP, OHCHR and other Donors, recentreports estimate that 75% of NHRC recommendations to date have received “no response” by theGovernment of Nepal, while 35% have receive a full or partial response. UNDP estimates thatform 2002 to present of all NHRC recommendations 8.8% were fully implemented, 36% werepartially implemented and 55.4% had no response. The Government has tended to respond toNHRC recommendations by way of awarding reparations to victims and their families, ratherthan punishing perpetrators.128

Although the Government had taken strong action against some perpetrators of violations (i.e.cases of “witchcraft”), as of August 2010 there had not been a single instance of prosecution incivilian courts in Nepal of alleged perpetrators on the basis of an NHRC investigation,recommendation or report of conflict related human rights violations. 129 This relative lack ofenforcement of NHRC recommendations threatens to put at risk the “A” grade status awarded toNHRC in September 2007 by the International Coordinating Committee of National HumanRights Institutions.

Status of Total Cases of NHRC since establishment to 2010:Total # complaints of human rights violations received by NHRC: 10,507Total # of complaints of human rights violations deemed by NHRC to be without merit or otherwise notactionable: 7,000 (approximate)Total # of complaints of human rights violations investigated by NHRC: 3,000 (approximate)Total # of decisions made by NHRC and recommendations to the Government: 386Total # recommendations completely implemented: 34Total # recommendations partially implemented: 138Total # recommendations no implemented: 214Total # prosecutions resulting from NHRC recommendations: 0Total # reports published by the NHRC on monitoring and investigation: 9Total # discriminatory laws reviewed by the NHRC on human rights grounds and recommendations foramendment proposed: 34 (national laws reviewed in relation to people with disability).Total # public hearings by NHRC on discriminatory laws and on emerging issues: 0

127 NHRC staff members interviewed by the Evaluation Team in Biratnigar expressed the opinion that NHRC should becapacitated to effectively “replace” OHCHR field presence in the Terai. The Evaluation Mission encourages UNDP toexplore ways to supplement NHRC’s human resources, field presence and resources once NHRC has appointed additionalstaff.

128 Following the Jana Andolan II (2006) and the adoption of the ICN (2007), there was a 15-month delay in theappointment of the NHRC. Meanwhile, this same 15-month period of time saw many cases filed relating to armed forces,disappearances, etc., but the Commissioners were not yet appointed and NHRC was delayed in responding, creating abacklog of 5,000 complaints that welcomed the NHRC when it finally began its business. As of August 2010, NHRC wasstill struggling to reduce this backlog.129 Still Waiting for Justice, No End to Impunity in Nepal, (Human Rights Watch and Advocacy Forum, October 2009).


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The NHRC Complaints and Recommendations ProcessIn a nutshell the NHRC complaints and recommendations process is as follows: NHRC receives acomplaint from a citizen and/or reaches a finding of its own accord under its suo moto powers. Ifthe complaint is deemed to possess merit, the NHRC proceeds with investigations as necessarysupported by its field officers who report to NHRC. On the basis of the NHRC investigations theNHRC makes recommendations for action to the Government.

The recommendations are sent to the Office of the Prime Minister Council of Ministers(OPMCoM) which in-turn conducts its own review of the investigative file and the proceeds torespond to NHRC for more information or forwards the recommendation onward to the line-Ministry most appropriate for taking action against the accused and/or the GovernmentAttorney’s office, police or National Army as appropriate. Thus, once the NHRC has relativelylittle ability to act upon its own recommendations and it’s almost completely dependent uponother the OPMCoM. In fact, there is a serious gap in follow-up to ascertain whether action wastaken or not.130

NHRC states that a fundamental problem is the relative lack of follow-up done by the OPMCoMafter it sends the recommendations to other arms of the government for implementation. Since2007 and as of August 2010, there were three (3) different Prime Ministers in Nepal lying at allpoints on the political spectrum (i.e. democratic, moderate and revolutionary). Yet, each of thesePMs failed to fully implement NHRC recommendations and lacked political will to do so.

The Prime Minister, pursuant to Art. 133 of the ICN, submitted the last two NHRC AnnualReports to the Legislature-Parliament, but there was no discussion. Therefore, NHRC waseffectively left only with the option of disseminating its reports in the press as best it can. In itsdefence, OPMCoM claims that NHRC investigations are sometimes of poor quality and/orincomplete.

Under the existing laws of Nepal as currently written the Government Attorneys’ office, Policeand the National Army all claim a legal basis to ignore NHRC recommendations.131 It is clear tothe Evaluation Team that key pieces of legislation will need to be amended in order to fullyfacilitate the implementation of NHRC recommendations. These include the following: i)Government Cases Act-Schedule 1; ii) the Army Act (and the Army’s internal regulations); iii)Draft “Human Rights Commission Act”; iv) Civil Service regulations.

These are outlined in more detail below. NHRC staff interviewed also urged that Parliamentamend laws so that cases of human rights violations committed by government officials, policeand the military are subject to civilian jurisdiction and courts. UNDP should support NHRC toadvocate for amendment of these pieces of legislation in addition to NHRC’s other activitiesregarding laws in Nepal (discussed, infra).

130 NHRC recommendations fall into several broad categories that have had various levels of implementation in Nepal: i)Compensation (this appears to be adequate in the opinion of NHRC and has resulted in a number of payments by thegovernment to victims’ families; and ii) Demands for actions against perpetrators at a departmental level (in some instancesalleged perpetrators have been given temporary suspensions of duties, demoted or transferred as a result of an NHRCrecommendation)130; and iii) recommendations for prosecutions (this is not accepted or followed by the government due toa) lack of political will and b) lack of legal procedures and gaps in procedural law (legal “roadblock”) in the process ofimplementation of NHRC recommendations.131 According to some stakeholders interviewed by the Evaluation Team, the NHRC was never popular with the securityforces of Nepal who tended to view the NHRC as something imposed upon them by foreigners. Meanwhile, even theMaoists have criticized the UN human rights agenda in Nepal as “bourgeois human rights.”


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Among the legal and procedural “roadblocks” to the implementation of NHRC recommendationsin Nepal are the following:

Government Attorneys in the OAG. NHRC recommendations have requested the OAG to initiateprosecutions against alleged perpetrators, however, in response the OAG states that it is not ableto prosecute on the basis of NHRC recommendations, due to the fact that NHRCrecommendations are not one of the enumerated categories of cases that the OAG is empoweredto hear by law under the “Government Cases Act.” Thus, from the perspective of the OAG, the“Government Cases Act” will have to be amended to include NHRC recommendations as acategory of actionable case before the OAG can act on them. In contra position to the OAG,NHRC has argued that the ICN alone and the fact that the NHRC is a Constitutional body132

provides ample legal basis for the OAG to act.133 [See the ANNEX of this report for keyprovisions of the “Government Cases Act”].

Police. The Police have their own tribunal for disciplining officers accused of misconduct. ThePolice refuse to implement NHRC stating that they have their own internal processes for handlingsuch issues. (Note: the jurisdictional basis of this claim was not made clear to the EvaluationMission).

The Nepalese Army. The Army also claims exemption from civilian jurisdiction as it has its ownmilitary tribunals subject to the military’s own code pursuant to the Army Act 2007.134 TheNepalese Army maintains its own Human Rights Cell (established in July 2000) and while it hasfollowed up on NHRC investigations it has done so almost exclusively “in-house” through itsown internal investigatory procedures and courts martial. Because these proceedings are notfully transparent or open to the public, it is difficult to verify the Army’s statistics and whether ornot the form of punishment and length of sentences are commensurate with the allegations andfacts of the NHRC recommendations. In it’s meeting with the Evaluation Mission, the NepaleseArmy expressed an interest in receiving more human rights training from UNDP.

As of 2008, the Army Human Rights Cell stated that it had received a total of 4707 human rightsallegations from various organizations, including 1886 NHRC allegations (of which the Army“clarified” 1239 and placed 647 under investigation).135 A 2010 report issued by the Armyquotes the total number of allegations received by NHRC as 2248, with total clarificationsforwarded to the relevant army units of 1581 with 1581 “solved” and 667 cases “outstanding toclarify”. The Army claimed a 70.3% response rate to NHRC allegations that as of 01 January2010 had resulted in a combined total of 169 army officers and other ranks punished.

The categories of punishment by the Army’s Courts Martial were mostly imprisonment of 1month to 7 years (116 cases), discharge from service (58 cases), demotion to lower rank (40cases), forfeiting of grade (23 cases), forfeiting of promotion (29 cases), warning (9 cases) and

132 Pursuant to the ICN, the NHRC is an autonomous and independent institution and it is on par with the Supreme Courtand OAG in terms of its authority.133 NHRC informed the Evaluation Mission that it recently raised the issue with OAG prosecutors informally at a trainingexercise and found that prosecutors fell into three groups regarding the OAG’s duty to prosecute according to NHRCrecommendations: a) conservative prosecutors (believe that only the OAG can decide and there is no basis for them tofollow NHRC recommendations); b) moderate prosecutors (believe that if NHRC could include the OAG in its decisionmaking and investigations process, then OAG could implement the recommendations); and c) “liberal/progressive”prosecutors (believe that OAG has a duty to implement NHRC recommendations and prosecute based upon the ICN thatgives an ample legal basis for doing so).134 Military Act 2006, Art. 67.135 Source: Nepal Army Human Rights Journal 2008Appendix C and D pp. 202-203.


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payment of compensation to victims families (8 cases).136 Only two cases had been referred bythe Amy to civilian courts for punishment as of 2010 (both of these were rape cases and notapparently related to NHRC recommendations).137

Many problems still remain in the Army Act, 2007 which prevents the effective implementationof recommendations of NHRC for actions in civilian courts as per international standards.138

There is an urgent need for cases of torture and disappearance to be defined as crimes in nationallegislation.139

A general problem also exists concerning criminal investigative processes in Nepal. Article 24 ofthe Interim Constitution enshrines the criminal justice rights of suspects.140 It has ensured therecent development of principles of fair trial, prohibition of double jeopardy, presumption ofinnocence, right to remain silent, right to a hearing by a competent court of justice and the right toconsult a lawyer from the time to arrest and right to legal aid. However in practice, prosecutionsand adjudications largely depend on confessions, depositions and in some instances, exhibits.

According to persons interviewed by the Evaluation Mission, the police rely heavily on torturingsuspects while investigating cases. 141

NHRC states that UNDP can facilitate the process by organizing a series of meetings betweenNHRC, the Supreme Court, the OAG, and OPMCoM to facilitate a dialogue and officialmechanisms of cooperation. To date there is no such mechanism and the status quo and egoshave gotten in the way of the process. UNDP could also suggest ways in which to establishchannels of communication between the various actors in the process.142

Moving the process along will certainly entail continued discussions between the NHRCCommissioners, the OPMCoM and the OAG first and foremost. UNDP should play a role infacilitating these. Furthermore, some staff members interviewed by the Evaluation Team

136 Report “Efforts by Nepalese Army for the Protection and Promotion of Human Rights” (Nepal Army 2010) p. 4.137 Id.138 See, Comments on the Nepal Army Act, 2007, (International Commission of Jurists, February, 2008). PP.1-12.; See also,“Nepal: Recommendations for Amendments to the Draft Army Act” (ICJ, September 2006).Section 66(6) of the Army Act provides that the crimes of rape and homicide fall within the jurisdiction of civilian courtswhether or not they were committed during a military operation. But, the specific procedure for filing a case ortransferring a case already under investigation or adjudication by the Army is not clear. As of July 2010, there were notransitional arrangements in any other act or regulation to transfer cases from courts martial to civilian courts.

Similarly, Section 62 of the Army Act says that if army personnel are accused of acts “defined” as an offence of torture anddisappearance they will be investigated by a specially constituted committee and tried under a Special Court Martial. Thosecases are subject to appeal to the Supreme Court. Section 62 does not define torture and disappearance as a crime. Anotherissue is that Section 6.2 provides no rights for further action to civilian court. According to international human rightsprinciples, only civilian courts should exercise such jurisdiction over such human rights violations.139 UNDP supported drafts of the revised civil code and draft criminal codes clearly classify disappearance cases as criminalcases.140 Art. 24. The Interim Constitution of Nepal, 2063 (2007).141 Advocacy Forum Nepal’s Annual Report 2009 reinforced this opinion as well, stating that “... after submitting a numberof complaints about torture to the Nepal Police or Armed Police Force, Human Rights Units are there but the units do notact independently and do not undertake through investigation. Further, in the few instances, where sanctions have beenimposed on public officials, the punishments have been grossly disproportionate to the gravity of the offences committed.”Annual Report, Advocacy Forum, 2009.142 While there were a couple of meetings held by NHRC with the Office of the Attorney General in 2005 to buildcooperation among different actors, as of the date of the Evaluation, had not had extensive meetings with the OAG orother stakeholders to identify legislative and procedural “roadblocks” to the implementation of NHRC recommendationsand ways to remove them. Meetings were scheduled to take place, however, in late-August/early-September 2010. UNDPSCNHRC Project, has recently undertaken to organize a preliminary meeting between the above actors.


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suggested that NHRC enhance its “Monitoring Division” by creating a sub-unit focused solelyupon implementation and follow-up of NHRC recommendations. 143

The Evaluation Mission notes that a procedural “compromise” might be reached by allowing for astay of civilian proceedings until after the Army or Police have finished with their internalprocesses. This would permit victims and/or their families to bring a civil law suit provided thatthey were not satisfied with the outcome of the Army or Police internal investigations. At anyrate, the Evaluation Mission is of the opinion that continued engagement and dialogue betweenNHRC and all stakeholders—including the Nepalese Army and security forces—is the only wayforward.

Significantly, NHRC, with UNDP support, is preparing to publish all of the past 10 years of itsdecisions and recommendations including its fact-finding reports, press releases, monitoringreports and annual reports. This will represent a major advance in terms of the visibility ofNHRC and will make it more difficult for the Office of the Prime Minister to ignorerecommendations. UNDP should ensure that these are publically available on the NHRC’swebsite.

5.2.4. Other substantive issues pertaining to NHRC monitoring of human rights in Nepal

Avoiding potential conflicts of interest between NHRC and the proposed TRC and CoEDThere is currently a potential overlap among different national human rights institutions thatmight complicate the implementation of NHRC recommendations in the future and strain theresources of the OAG’s office beyond capacity if it is not taken into account.

At present, several inconsistencies exist in the constitutional provisions covering the mandates ofthe NHRC, the Truth and Reconciliation (TRC) Commission, and the Commission on EnforcedDisappearances (CoED) as envisioned by CPA, 2006, acknowledged as a part of the ICN.

In the context of dealing with the violation of human rights during armed conflict, NHRC is apermanent human rights institution with a broad mandate to monitor and investigate all pasthuman rights violations in general, but, according to the CPA, TRC, yet to be formed, will have aspecific and time-limited mandate concerning alleged violations that took place during the armedconflict. The TRC bill contains a provision to entrust NHRC to monitor the recommendations ofthe TRC.

UNDP should work with the NHRC and all relevant stakeholders to make sure that conflictsbetween the various human rights institutions are avoided and that the offices charged with theduty of implementing recommendations are appropriately budgeted, staffed and capacitated to doso. UNDP should support the OAG to meet the administrative burdens placed upon it by thedraft TRC bill and to enable it to implement NHRC and TRC recommendations.

Additionally, OHCHR and human rights NGOs have recently raised concerns over provisions inthe draft TRC bill relating to the proposed Commission’s independence as well as provisions inthe bill that accord amnesty from prosecution to perpetrators of certain categories of crimes (i.e.extra-judicial execution, torture and disappearances). OHCHR deems amnesty for these crimesto be contra to Nepal’s obligations under international human rights treaties and conventions.

143 NHRC staff members interviewed by the Evaluation Team in Biratnigar, 19 July 2010.


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In addition to the above, the Evaluation Mission is concerned by the administrative burden andcosts imposed upon the OAG’s office as a result of their obligations under provisions of the TRCand CoED bills (i.e. that witnesses be compensated; and the OAG prosecute perpetrators).Government attorney/prosecutors in the OAG appear to have mixed opinion as to whether or notthey are required to prosecute based upon NHRC recommendations. UNDP and other Donorsshould take measures to avoid a similar scenario with TRC and CoED recommendations andrequests for prosecution, as these will also depend upon the OAG.

UNDP and Donors should facilitate dialogue between the OAG and GoN and NHRC in thisregard and support capacity building initiatives at OAG to ensure that it has the requisitewillingness and ability to follow-up on NHRC and TRC and CoED recommendations. Asdiscussed elsewhere in this report, this might also entail amendment of the Government CasesAct and harmonization of other legislation.

Monitoring the potential human rights violations perpetrated by quasi-judicial authorities inNepalAs stated above in this report, the rate of convictions before CDOs is approximately 98%. Allstakeholders interviewed by the Evaluation Mission stated that the relatively unchecked power ofquasi-judicial authorities such as CDOs to arrest and detain persons is a huge problem in Nepal.

UNDP/OHCHR should support NHRC to target the CDOs and many other quasi-judicial actorsin Nepal as potential points of human rights violations and investigate their activities.144 UNDPshould support NHRC to conduct a study of the CDOs and other quasi-judicial actors and theirimpact on human rights in Nepal—especially violations of procedural due process rights.

Mobilizing “shame” in Nepal against alleged perpetrators of human rights violationsOne of the greatest tools in human rights is the “mobilization of shame” against allegedperpetrators. NHRC has to date not utilized the mechanism of publishing a “blacklist” ofperpetrators although this is provided for in its mandate. Nor, for that matter, has NHRC heldpublic hearings to date on its recommendations. UNDP could support NHRC to avail itself ofboth of these mechanisms as a means of increasing implementation and compliance with NHRCrecommendations as well as the public awareness of human rights and the NHRC’s work.

Socio-economic and cultural rights: women, Dalit and other minoritiesAs outlined elsewhere in this report, while the situation for women in Nepal is marginallyimproved from 2001-2010, Dalits and other minorities continue to suffer a higher incidence ofdiscrimination, as do persons with disabilities and the sexual minorities in Nepal. UNDP shouldsupport NHRC to strengthen its monitoring of these groups with the support of the National DalitCommission (NDC) and National Women’s Commission (NWC).

The NDC has to date reviewed legislation; produced numerous studies and papers on the Dalitcommunity and their rights; translated international human rights conventions into locallanguages; reviewed the curriculum and textbooks relevant to the Dalit; published a book “Dalitsin New Nepal”; prepared the five-year strategic plan for NDC and monitored human rights abusesand caste-based discrimination against Dalit and conducted various training workshops/seminars

144 See, Advocacy Forum sponsored litigation in the Supreme Court as of August 2010 challenging the ability of the CDOsto imprison persons.


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and interaction programmes. All of this has been accomplished in the relative absence of UNDPsupport and/or much in the way of communication between NHRC and NDC. NDC informed theEvaluation Mission that they would welcome an increased level of UNDP support.

5.2.5.UNDP Support to NHRC Outreach and Advocacy 2001-2010In addition to investigating and reporting on alleged human rights violations in Nepal, NHRC ischarged with the duties of promoting human rights dialogue and conducting advocacy, educationand training on human rights in Nepal. This has included educating the public on importanthuman rights issues such as social discrimination, witchcraft, SGBV and human trafficking.

Most stakeholders interviewed by the Evaluation Mission agreed that there was only minimalstatistical improvement in the status of women in minorities in Nepal to date, but that NHRCoutreach and advocacy, as well as that of many other human rights organizations active in Nepal,has increased the overall awareness of human rights in the country. Many political groups haveplaced human rights on their agendas.

UNDP supported NHRC in the research and publication of several important publications.Foremost among these was a “Situation Report on Trafficking in Persons” for years 2005-2006,2006-2007 and 2008-2009. NHRC also published a “Report on the Rights of Persons withDisabilities.” Yet, NHRC did not publish studies specifically on the Dalit or other minorities inNepal. LGBT rights were also left completely unaddressed in the NHRC publications supportedby UNDP to date.

In Nepal there are around 40,000 NGOs working in different parts of the country and amongthem more than 5,000 NGOs are working in the field of human rights nationally or locally. Strongstrategic coordination is lacking among and between the NGOs. NHRC considers its relationshipwith NGOs/INGOs and civil society in Nepal to be very good, but states that it lacks theresources to fully engage with all organizations in the country. NHRC should be taking a leadrole, however, to coordinate and collaborate with civil society in order to enhance awareness ofhuman rights in this regard as prescribed by the ICN.145 UNDP’s new project SCNHRC isdesigned in part to improve upon the NHRC’s capacity to conduct advocacy related activitieswithin a transitional justice framework.

UNDP assisted NHRC to establish a Human Rights Documentation Centre that is used bystudents, UNDP project staff and some lawyers. The Information Centre has not been utilized byNHRC Commissioners much to date. UNDP should enhance the Information Centre bycontinuing to provide updated periodicals; practice books and computers to the Centre and moreformally link the Centre to universities in Nepal. UNDP should also encourage human rightsNGOs to utilize the Centre.

UNDP should support NHRC to produce more studies and publications about Dalit in Nepal (inpartnership with the National Dalit Commission); rights of women (in partnership with theNational Women’s Commission) and rights of LGBT (in partnership with Donors and localCBOs in Nepal who are active in this field—such at the Blue Diamond Society). UNDP should

145 Article 132 (d) of the Interim Constitution of Nepal


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also support NHRC to print more copies of its studies in order to reach a wider audience in Nepalthan it currently does.146

The Evaluation Mission encourages UNDP to continue to support the NHRC’s other outreach,public awareness and media activities. NHRC has a weekly radio programme broadcast eachSaturday for 30 minutes on 9 FM stations across Nepal reaching a total of 20 million people.NHRC is now in pre-production for a documentary on displaced persons. NHRC has notconducted any public awareness surveys to date, however, they have a plan to survey the listenersof the radio programme on human rights awareness and perceptions.

As addressed in Section 6 of this report, the Evaluation Mission has identified many synergiesbetween UNDP Rule of Law, Access to Justice and Human Rights programming andUNDP/UNCT support to peace. UNDP can support NHRC going forward to monitor theformation and functioning of District Peace Committees and to help build the capacity ofcommunity-based peace workers/mediators to promote human rights advocacy and outreach.

5.2.6. UNDP Support to NHRC Treaty Monitoring and Legislative Activities 2001-2010.NHRC’s mandate also includes monitoring treaties and it has recommended policy and legalreforms (i.e. ratification of the Rome Statute of the ICC). UNDP support to NHRC to fulfil itsobligations to monitor Nepal’s compliance with its international human rights treaty and reportingobligations is discussed in Section 5.3 of this report.

5.2.7. Overall level of “ownership” by NHRC of the UNDP projects and contributionAs stated above, the morale of NHRC is currently low as a result of the impending expiration ofstaff contracts. Beyond this general state of malaise, however, NHRC staff interviewed by theEvaluation Mission expressed some significant criticisms of UNDP performance to date.

During the initial phase of UNDP support to NHRC, since the commission was in an inceptionperiod, it was almost imperative for the CDNHRC project to hire consultants to developguidelines and policies. This was done out of a perceived necessity, notwithstanding the conflictsof interest that this may have caused internally within NHRC and among NHRC staff and UNDPproject staff.

The new UNDP SCNHRC project attempts to correct this and limit the number of consultantshired by the project. In SCNHRC, all UNDP staff members have been converted to theGovernment payroll (resulting in a 50% reduction in the salaries of staff). NHRC staff is of theopinion that UNDP spent too much money (42% of its budget) under the previous CDNHRCProject on consultants.147

146 The recent NHRC report on “Women and Children” in Nepal had only 1000 copies published in English and 1000copies published in Nepali. NHRC informed the Evaluation Mission that it did not distribute copies to universities inNepal.147 The CDNHRC project was developed as per the NHRC Strategic Plan 2008-2010. The NHRC strategic plan wasdeveloped in consultation with all staff (both of central and regional level). In addition, NHRC staff was consulted in theformulation of the project. Despite this fact, some stakeholders interviewed by the Evaluation Team characterized theUNDP project as currently being rather “isolated” at NHRC. Stakeholders suggested that the UNDP project might wantto move to a separate facility in order to improve its relations with the Commission staff (i.e. rather than existing within theNHRC itself).


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Within NHRC’s overall structure, only 2% of the staff members are permanent staff andresponsible for the management functions of the NHRC. Due to the very training that UNDPsupported, as well as their length of service at the NHRC this 2% now has even greater capacityto participate in strategic planning and design of project indicators and targets. UNDP could do abetter job of availing itself of the in-house expertise that it has created at NHRC among this elite2%. This component at NHRC possesses advanced degrees and considers itself to be as or morequalified than UNDP project staff.

Additional factors negatively affecting the level of “ownership” by NHRC of the UNDP supportinclude the fact that the NHRC and the UNDP NHRC projects followed different programmingcalendars; there was a general lack of leadership at NHRC during past years and a poor workingenvironment within NHRC that exhibited a preference against hiring younger staff members (i.e.as witnessed by the fact that 98% of existing staff members on non-permanent contracts are age35 or above).

NHRC staff members at the regional and sub-regional levels interviewed by the EvaluationMission had mixed opinions of UNDP and the effectiveness of its support 2008-2010.148

UNDP’s new SCNHRC project had only been operational for six (6) months as of the date of thisevaluation, but NHRC staff reported that they were very satisfied with many aspects of the newproject and its limited outputs to date and have great expectations for the future.149

The NHRC Strategic Plan 2008-2010 identifies seven (7) Strategic Objectives and sub-objectives/outputs as well as presenting estimated budgets and time frames for their attainment.UNDP/OHCHR have attempted to closely align their support to NHRC with this plan.Continued alignment of programming with the Strategic Objectives will ensure a greater level of“ownership” by NHRC of the UNDP project and further advance the Outcome.

148 The Evaluation Mission interviewed NHRC staff at regional and sub-regional (“field”) offices in Janakpur, Biratnigar,Banke and Dangadi. NHRC staff in Biratnigar recounted that UNDP capacity building and support had enabled them tohandle more complaints and improve their budget. They expressed the need for new computers and software, cameras andvehicles. Staff in Janakpur stated that documentation at their office was poor and that UNDP supplied software was notused. Staff members in Dangadi stated that in their opinion the UNDP project was simply a burden to them and statedthat they barely had enough time to complete the takes that the national NHRC office required of them and theirinvestigations let alone UNDP Project requests for information. The Dangadi staff had a very low appreciation for the factthat the UNDP project was a NEX project implemented in partnership with NHRC. Meanwhile, staff in Banke were veryappreciative of UNDP support and capacity building, but requested more vehicles to do their work.149 Highlights of SCNHRC as of July 2010 included: a pictorial book documenting 10 years of NHRC activities and thepublication of NHRC recommendations for past 10 years; UNDP support to the UPI Programme, with regionalworkshops and consultative meetings.


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5.3 Assessment of UNDP’s advancement of the Outcome via its support to thelegislative process and the review and amendment of existing legislation

CPAP Output 2.2.3 Selected existing laws reviewed and amendments drafted and new legislation drafted asrequired by Nepal’s treaty obligations and other international human rights standards

5.3.1. Reform of Legislation to Conform to Nepal’s International Human Rights TreatyObligations

During 1963-2010, Nepal ratified or acceded to various human rights treaties and covenantsincluding ICERD, CEDAW, Convention on the Rights of the Child, ICESCR, ICCPR and itsOptional Protocol, “Convention Against Torture” and the Convention on the Suppression ofImmoral Trafficking and Protocol, Other laws were amended and new laws passed on thedomestic front to conform to Nepal’s International Human Rights Treaty Obligations. TheANNEX of this Evaluation Report contains a detailed list of these instruments.

After 1990’s people’s movement, Nepal ratified additional international human rightsconventions that protect and promote the human rights of women, children, and other excludedgroups in the country, which continue to be excluded following the CPA. Since then women,human rights organizations, civil society along with other excluded groups like Janajati, Dalitsand persons with disabilities in Nepal have been using the law as an instrument to end socialdiscrimination and create a new social order, based on equality and justice.150 The 11th

Amendment of National Code (Muluki Ain), the Act to Amend Some Existing Acts to EnsureGender Equality Act, 2063; the Domestic Violence Act, 20 July 2007, (2064 Sharawan 4), andthe Human Trafficking Act, 2064 are some examples of recent legislation designed to endgender-based discrimination.

But a strong tradition of gender inequality and social exclusion has prevented the realization oflegal and constitutional goals. The Nepalese legal system is conditioned by an anti-female biasand patriarchal tradition within Nepali society. This fact not only creates obstacles and delays inadopting progressive laws, but also interferes with their effective implementation.

The ICN 2007 enshrines the provision of ratification or accession of international agreements ortreaties. However, the scope of implementation of such treaties still remains in dilemma.151

Nepal’s domestic Treaty Act, 1990, is a special legislation governing the substantive andprocedural matters of Nepal’s accession to/ratification of international treaties and conventions.Since the Treaty Act 1990 derives legitimacy directly from the Constitution, its authority isexclusive in matters of international treaties and conventions. The provisions of Treaty Actsuggest, however, that ratified international treaties or conventions are not automaticallyenforceable in Nepal. It implicitly points out to the obligation of the state to ‘rationalize the lawsin accordance with the international treaties and conventions’ ratified or acceded to.152

150 I. Tuladhar; Women Defining State Restructuring (Centre for Women Law and Democracy, 2008, Kathmandu).151 On the one hand, ICN, Article 33 (m) stipulates that the State is responsible for effective implementation of theinternational treaties to which Nepal is a party, but, on the other hand, Article 36 of the same Chapter of the ICN restrictsthe court from raising questions regarding the implementation of any provisions enshrined in Part IV (responsibilities,directive principles and policies of the state) of the Constitution. Against this Nepal has ratified number of human rightstreaties, convention and protocols.152 Section 9(2) of this act holds that in a situation where there is a conflict between international treaties or a conventionand any law of Nepal the supremacy of the international law prevails. However, the construction of Section 9(2) isambiguous, as it does not explicitly hold that international treaties and conventions ratified or acceded to by Nepalautomatically become part of the “law of Nepal”. For the full application of a treaty, there must also be an implementing


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Moreover, the Supreme Court of Nepal has applied international law and treaties in differentcases. Still, it cannot be conclusively determined under ICN Article 107(1)153 whetherinternational treaties and domestic legislation are in conflict.154

_______________

UNDP made significant efforts 2001-2010 to bring national laws and policies in conformity withinternational standards, NHRC with the support of UNDP and other donors reviewed severalnational laws that are incompatible with international standards (i.e. the Army Act, the PublicSecurity Law and Local Administration Law, etc.) and made recommendations that weresubmitted to the GoN for their amendment.

Similarly, NHRC reviewed the “Terrorist and Disruptive Activities (Prevention and Control)Ordinance” 2001 (TADO) and recommendations were made to repeal it. TADO wassubsequently repealed based in part on the recommendation of the NHRC with UNDP supportand technical advice. In addition, the project provided technical assistance on the draft ofCeasefire (second) Agreement between CPN –Maoists and Government of Nepal. The publicSecurity Act was also reviewed and some of the contradictory provisions were amended as perthe recommendation.

Moreover, UNDP support to NHRC enabled it to review several laws from the perspective ofprotection of rights of persons with disability (PWD) and issue a “Report on Review ofDiscriminatory Legal Provisions on the Rights of the Persons with Disability.”155 The reportidentified several gaps on national laws to protect the rights of the persons with disability.156

UNDP’s early support facilitated NHRC participation in the ICC conference held in Geneva in2004. UNDP’s NHRC project also supported the NHRC’s plan for review of discriminatorylegislation in Nepal. As of 2010, NHRC had reviewed 10 discriminatory laws (i.e. Law onPersons with Disabilities). Among such initiatives was UNDP supported to NHRC to review theTADO and make recommendations for its repeal (and its discriminatory control and punishmentprovisions). The repeal of TADO with UNDP support was a major advance for human rights inNepal.

With UNDP and other donor support, NHRC has clearly made substantial progress during 2001-2010 on reviewing laws and policies in order to address various rights guaranteed by international

domestic law, whether it is consistent or not. (Note: such an interpretation of treaties within a domestic legal order is notunusual and found in many jurisdictions around the world).153 Extraordinary jurisdiction of Supreme Court to nullify the inconsistent legal provision with the constitution154 For example, in Dinesh Kumar Sharma v. Office of Prime Minister and Council of Ministers, the Court held that “Treaties towhich Nepal is a party may be applied as laws, but not called “laws of Nepal”. The Court in Dinesh further held "Laws' and'applicable as laws' are two different things. Though some provisions may be considered to be applicable as laws, suchprovisions may not be accepted in all contexts and for all purposes as the domestic laws promulgated by legislativeprocedure.” [Dinesh Kumar Sharma v. Office of Prime Minister and Council of Ministers, NKP 2063 Decision No. 7757 p. 1136].155 R. Ghimire, S. Subedi; Report on Review of Discriminatory Legal Provisions on the Rights of the persons withDisability, (submitted to SC NHRC, 2010).156Id., For example, under the Police Act; there should be a provision regarding recruitment of PWDs in the police servicessuch as medical, technical and administration post. Under Legal Aid Act, 1997, clear provisions about free legal aid toPWDs are made in order to fulfil the obligations of GoN regarding rights to access to justice etc. The report also madeseveral recommendations i.e. Labour Act, 1992) that ensure that persons with disabilities are not held in slavery or inservitude, and are protected, on an equal basis with others, from forced or compulsory labour. This report is in the processof publication and NHRC has sent its recommendation to the GoN for addressing the gaps stated in the report.


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conventions. UNDP’s RoL project carried out a study in 2004 to identify Nepal’s obligationsunder different international instruments relating to human rights that reviewed 16 internationaltreaties/conventions and more than 70 Nepalese acts and rules. The draft of the study was revisedin light of comments given by the participants a workshop held in 2004.

UNDP RoL also conducted similar research with regard to Nepal’s obligations under differentinternational treaties related to environmental protection. Perhaps most importantly, UNDPsupported Constitutional reform in Nepal that elevated the NHRC from a statutory body to aConstitutional body. This was fundamental to ensuring the NHRC’s role and mandate wasstrengthened.

In addition UNDP CO also supported or generated a number of reports and publications aboutNepal’s international human rights obligations and legislation 2001-2010 as follows:

UN Convention on the Rights of Persons with Disability” and “Optional Protocol on the Rights ofPersons with Disability, 2006”.

UN General Recommendation XXXI on the Prevention of Racial Discrimination in theAdministration and Functioning of the Criminal Justice System” and “Concluding Observations ofthe Committee on ESCR

CPA in 8 different languages namely, Awadhi, Bhojpuri, Gurung, Limbu, Maithali, NepaliNewari, Tamang and Tharu

People’s Demonstration (April) 2006 Six-Year NHRC Report: Achievements and Challenges 2006 Human Rights Resource Centre Brochures 2006 Ceasefire Monitoring Report in Nepali and English 2006 Human Rights Situation in Emergency 2006 Human Rights Situation during the Ceasefire 2006-07 A study report on "Domestication Status of ICCPR in Nepal First four month, second four month and Annual monitoring report on the “Status of Human

Rights under the Comprehensive Peace Accord” A Situational Report on Trafficking in Persons - Especially in Women and Children in Nepal,

2006, 2007, 2008, 2009

International Instruments National Laws Convention on the Rights of Child, 1989 Convention on the Rights of Persons with

Disability, (CRPD) Declaration of the Rights of Disabled

Persons, 1995 International Covenant on Civil and

Political Rights, 1966 International Covenant on Economic,

Social and Cultural Rights, 1966 Principles for the Protection of Persons

with Mental Illness and The Improvementof Mental Health Care, 1991

Standard Rules on the Equalization ofOpportunities or Person with Disabilities,1993

World Program of Action ConcerningDisabled Persons, 1981

Children Act, 1992 Civil Service Act, 1993 Consumer Protection, 1998 Country Code, 1964 Education Act, 1971 Interim Constitution of Nepal, 2007 Labour Act, 1992 Legal Aid Act. 1997 Nepal Army Act, 2007 Police Act, 1955 Protection and Welfare of the Disabled

Persons Act, 1982


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Future Need for Human Rights Legislation in NepalFollowing the CPA, there is growing awareness and mobilization to ensure that the rights ofexcluded groups in the country are protected and to vanguard the rights of Dalits, Janajati,minority groups and marginalized/disadvantage groups along with some progressive legalmeasures.157 Nonetheless, a number of discriminatory laws prevail against women and excludedgroups basically Dalits and Janajati.

Despite significant UNDP and other donor support, NHRC has not made significant progress todate on conducting a comprehensive review of the many other discriminatory laws and policesrelated to the promotion of gender equality and social justice in Nepal identified in the 2004UNDP study and reports of other Donors and NGOs.

Beyond this, there is a low level of synergy between NHRC and other actors. During theEvaluation Mission’s meetings the National Women’s Rights Commission and National DalitsCommission stated that they also review national laws for protection and promotion of rights oftheir respective constituencies, but report little or no interaction with the NHRC (and the nationalDalit Commission does not currently receive support from UNDP). As a result, manydiscriminatory laws still prevent women, Dalits and other excluded groups from obtaining theirfair measure of access to justice in Nepal.

Significant work remains for UNDP and NHRC in the legislative sphere. There are few laws inNepal that address the execution of rights and very limited laws regarding the protection andpromotion of human rights (i.e. Habeas Corpus even when court ordered). Furthermore, there iscurrently no provision to punish perpetrators who detain people illegally in violation of theirhuman rights.158

Despite NHRC having become a constitutional body in 2007, new implementing legislation onthe NHRC itself is not yet passed by Parliament. Even the draft bill that was submitted to theLegislature-Parliament in October 2009 is not immune from criticism by NHRC itself, civilsociety and the international community. According to OHCHR, the bill as proposed would

157 ICN, Art.138 (1) provides, “To bring an end to the discrimination based on class, caste, language, gender, culture,religion and region by eliminating the centralized and unitary form of the state, the state shall be made inclusive andrestructured into a progressive, democratic federal system.Art. 17(3) Cultural Right: Each Community residing in Nepal shall have the right to preserve and promote its language,script, culture, cultural civility and heritage.Art 23 Right to Religion:(1) Every Person shall have the right to profess, practice and preserve his / her own religion ashanded down to him/ her from ancient times having due regards to the social and cultural traditional practices.Provided that no person shall be entitled to convert another person from one religion to another, and shall not act orbehave in a manner which may jeopardize the religion of others.(2) Every religious denomination shall have the right to maintain its independent existence, and for this purpose to manageand protect its religious places and religious trusts, in accordance with law.158 Article 26.1 of the ICN clearly provides for the protection of the right against torture stating, “ No person who isdetained during the investigation, or for trial or for any other reason, shall be subjected to physical or mental torture, betreated in a cruel, inhuman or degrading manner.” Nevertheless, Section 10 of Nepal’s “Compensation for Torture Act ”(1996) is inconsistent with the spirit of the ICN and the “Convention Against Torture” to which Nepal has acceded, alongwith, because Section 10 cannot protect those rights in practice as this section has made a provision that in the case, wherethe chief of a concerned office makes a request in connection to any complaint filed (according to Section 5 of the sameAct); the Government Attorney will defend the case before a court on behalf of such employee. Here, the employee refersto those employees who are alleged to have committed torture against a detained person under their custody. TheCompensation for Torture Act has a provision for compensation for the victim and disciplinary action against theperpetrator, but there is no provision for the protection of an individual from torture and promotion of rights againsttorture. As result, no action has been taken in practice under the Act except in a few cases. The schedules do not haveany provision listed on the violation of human rights.


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hinder important powers of NHRC, and removes a key reference to its independence andautonomy.

As discussed above, key pieces of legislation that will need to be amended in order to facilitateimplementation of NHRC recommendations include the following: i) Government Cases Act-Schedule 1; ii) the Army Act (and the Army’s internal regulations); iii) Draft “Human RightsCommission Act”; iv) Civil Service regulations.

UNDP should also support NHRC to increase its focus upon legislation needed deliver Economicand Social Rights to Nepalese citizens. Many gaps exist in domestic legislation regarding grouprights/collective rights (women, children and persons with disabilities, Dalits and otherminorities). UNDP should cooperate with the National Dalit Commission and Women’sCommission on legislative initiatives. UNDP should support NHRC with legislative initiativeson ICCCPR, CEDAW/ICESR and CERD. Also absent from the NHRC 2008-2010 Strategic Planis any mention of LGBT rights and legislation.

UNDP should also support the NHRC to review and reform legislation and rules governingadministrative process in Nepal. It is through administrative agencies and line ministries thatEconomic and Social Rights are delivered to ordinary citizens. Administrative agencies and lineministries are also capable of violating due process and other rights of citizens—especially if suchagencies and ministries possess powers of arrest and detention (as discussed above).

Finally, UNDP should continue to support NHRC to participate in the Constitutional draftingprocess to protect human rights. As discussed elsewhere in this report, many new issuesconcerning human rights will emerge surrounding the adoption of a new Constitution in Nepal.

5.3.2. Legislative Initiatives (Civil Code; Code of Civil Procedure; Penal Code; Code ofCriminal Procedure)Between 2001-2010, UNDP through the RoL and A2J projects provided logistical support andtechnical advice to the MoLJ and Supreme Court in drafting and finalizing a new Civil Code,Civil Procedure Code, Penal Code and Criminal Procedure Code—with the objective to bring theprovisions of these codes in line with the international human rights standards to which Nepal is aparty. UNDP RoL and A2J projects also supported a number of other legislative draftinginitiatives there were undertaken by the predecessor MoJLP 2001-2010.

In an attempt to improve the capacity of the MoLJ (MoLJPA) to draft legislation, UNDP RoLconducted training programmes on legislative and treaty drafting, invited representatives fromSingapore’s state legislative office to visit MoLJ, supported several study trips for officials fromMoLJ’s drafting section and officers deputed in different ministries to University of thePhilippines, and provided partial support to one official of MoLJ to attend a course at theInternational Development Law Organization in Italy for one year. UNDP also upgraded theMoLJ’s database and hardware. As a result of UNDP support, more than 80% of MoLJ weretrained by 2005 and MoLJ perceives that this training had a direct impact upon the quality of theirwork and enabled them to more efficiently produced drafts and send them to the Parliament.


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Draft Criminal Code and Code of Criminal ProcedureUNDP provided technical support to the MoLJ’s Task Force formed in 2008 for drafting of thePenal Code and Criminal Procedure Code for submission to the Government.159

Consultations with groups of stakeholders took place in 2010 with the support of UNDP (i.e.judges, CA members, bar associations160, selected experts, INGOs and NGO), but these were witha relatively select group, not entirely public and based on an excessively “top-down” approach(i.e. with the MoLJ Task Force setting the times, places and stakeholders invited). Women,Dalits, ethnic communities, PWDs and the rural areas were not well represented.

Revised drafts were submitted to the Office of the Prime Minster. MoLJ submitted the DraftCriminal Code and Code of Criminal Procedure to public comment as of 24 June 2010.

The drafts contain important provisions such as criminalization of the crimes of torture andenforced disappearance and re-arrest of criminal suspects. Yet, despite nearly a decade of workon the Draft Criminal Code and Code of Criminal Procedure—the drafts recently submitted bythe MoLJ for public comment contain numerous provisions that do not accord with Nepal’sinternational human rights obligations or international best practice. A thematic report issued byUN OHCHR in July 2010, notes the many areas of concern from a human rights perspective [Acopy of the OHCHR analysis, as well as a table containing additional points of observation bythis Evaluation Mission appear in the ANNEX to this report].

The Evaluation Mission questions whether UNDP could have done a better job of anticipatingthese issues and raising them with the MoLJ (or creating more opportunities to raise them) at anearlier stage of this process. It appears that UNDP could have done a better job of pro-activelyprompting MoLJ to organize a series of events to discuss these issues at an earlier stage in theprocess.

The fact that so much language running contra to international human rights still exists in thedrafts as of June 2010 (after years of technical support) is of great concern to the EvaluationMission. As noted by the OHCHR Thematic Report, the current Draft Criminal Code and DraftCode of Criminal Procedure offer an opportunity to improve the legal framework. UNDP shouldtake efforts to support a robust public comment and feedback effort inclusive of all stakeholdersand civil society in advance of finalizing the drafts.

159 This was a continuation of earlier efforts supported by UNDP since 2001 on the Criminal Code and Criminal ProcedureCode that produced drafts over 2002-2004 which were submitted to MoLJ in 2005). The drafts aimed to replace the existingMuluki Ain and other existing laws with a single set of legislation. In 2010, the task force publicly released a compilation ofthe Proposed Draft Criminal Code 2066 BS (2010); the Draft Criminal Procedure Code 2066 BS (2010); and the ProposedSentencing Act 2066 BS (2010).160 The various bar associations interviewed confirmed that they had been given several opportunities to comment on thedraft Criminal Code and draft Code of Criminal Procedure during past years by the MoLJ.


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Draft Civil Code; Draft Code of Civil ProcedureThe MoLJ’s Civil Law Reform and Improvement Task Force was responsible for drafting theDraft Civil Code and UNDP supported this effort during the past several years.

UNDP developed an innovative partnership with JICA to provide technical advice to the MoLJTask Force in the form of study tours to Japan and JICA experts who comprised a JapaneseAdvisory Group (AG). The A2J Project informed the Evaluation Mission that it worked as afocal point of the MoLJ Task Force to JICA and coordinated most of the activities of JICArelated with Civil Code drafting process. UNDP’s A2J provided secretariat services to andconvened all the meetings of the Task Force, organized regional and national consultations (fromDecember 2009 to 2010), and provided other assistance required by the Task Force.

JICA AG itself provided a high-level of technical expertise to the Task Force making an initialclause-by-clause “review and comment” of approximately 500 articles; exchanging ideas;meeting by teleconferences and exchanging emails; and publishing a First Draft of the Civil Codeof Nepal. JICA perceives that the process was a cooperative one that attempted to take accountof Nepalese cultural values and practices. The JICA AG showed the Task Force comparativemodels for their consideration (i.e. civil codes of Germany, France, Netherlands, Switzerland,etc.).

Furthermore, JICA perceives that the Draft Civil Code of six parts and approximately 715 articlesthat was produced by the Task Force with JICA AG support contains many features that

A Few Examples of flaws in the Draft Penal CodeArt. 44 (3) Punishment for Child. Inconsistent with CRC as it suggests

not convicting and sentencing children.Imprisonment should be the very lastresort in cases of children.

This section also needs to be brought in-linewith the draft Child Rights Act.

Art. 75 Release of the Accused PersonFrom Detention When the Case is NotDecided on the Specific Time.

In this section there is a provisionstating that a court may place theaccused in pre-trial detention withoutbail, if he/s is a repeat offender.

Needs to be revised.

Art. 48 Interim Compensation shall bemade available.

Govt. Accountability is notsubstantially spelled out.If the crime is not proved, the victimneeds to return the interimcompensation.

Needs to be made consistent with theprovisions of the Constitution.

Art. 220 Rape. Definition of Rape is limited….Discrimination of penaltyin cases of marital and non-maritalrape.

………….

Art. 177 Polygamy. Vague grounds provided to justifypolygamy (i.e. if it is not possible tohave normal married life…)

Needs to be revised; wider consultationrequired since this is the single mostimportant issue concerning violence againstwomen.

Art 65. The Accused Person to bedetained.

Allows pre-trial detention andimprisonment for purposes of judicialinquiry in cases of offences punishablewith more than three years, on thebasis of immediately availableevidence or from such evidenceproviding a judge sufficient reasons tobelieve that the accused will qualify fora sentence of more than three years.

Need to be made consistent with theConstitution and international human rightsinstruments (i.e., free and fair trial).

[Note: Articles subsequent to Art. 65 wouldappear to provide a judge with exceptionsthat allow for pre-trial detention up to themaximum number of years of a potentialsentence in serious offences].


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emphasize a fundamental human rights and equal treatment of minorities (i.e. equality before thelaw; prohibition of discrimination; women’s inheritance rights). JICA readily admits that thethat the draft might not fully meet all international standards; and informed the EvaluationMission that the JICA AG determined that an incremental approach was the best option for Nepalat the current time, proposing a Draft Civil Code that could be actually accepted and implementedin the near-term, with further amendments occurring at a later date. JICA reports that its AG alsoattempted to harmonize Nepalese traditional rules (“non-Western” elements) with internationalbest practices (i.e. “Western elements”). [JICA’s full Comments for the UNDP OutcomeEvaluation are included in ANNEX____ of this report].

The draft Civil Code represents an improvement in terms of gender equality from previous codes.Yet, according to UNDP and JICA not all technical advice and suggestions were incorporated inthe draft Civil Code by the Nepalese Government’s Task Force.

The Evaluation Mission is concerned that many elements of the Draft Civil Code are still notfully reflective of Nepal’s international human rights obligations regarding equal protection andgender equality. The Evaluation Mission is similarly concerned with the extent to which thedrafts of the Criminal Code and Code of Criminal Procedure fall short of conforming to Nepal’shuman rights obligations. OHCHR has recently criticized many elements of the draft CriminalCode and Code of Criminal Procedure.

All of these codes are currently being put through a final round of public comment and UNDP,OHCHR and other donors should continue to advocate that Nepal meet minimum standardsreflected in the international human rights treaties to which it has acceded as well as the InterimConstitution of Nepal. The Evaluation Mission raises the caveat that a decision on behalf of theMoLJ to delay complete conformity of draft legislation with Nepal’s existing international humanrights commitments, may serve to reinforce existing discriminatory norms and practices as itcontinues to leave stakeholders without the legal basis for redress of such discrimination.

UNDP supported legislative initiatives should continue to be aligned with the process of draftinga new Constitution for Nepal, taken into account the views of a wider spectrum of stakeholdersand civil society in the drafting stage and in general have made more progress towardsconforming to Nepal’s international human rights obligations.

Paramount among the Evaluation Mission’s recommendations is that the RCO form a centralizedmechanism going forward to coordinate the UNCT’s various legislative drafting projects.

__________

Overall, with regard to the specific legislative drafting initiatives supported by the UNDP RoL,A2J and NHRC projects, the relatively small circle of stakeholders that were consulted by theMoLJ concerns the Evaluation Mission. Preliminary drafts of all proposed legislation werecirculated to members of the judiciary and the bar associations, but to relatively few local NGOsor CBOs for comment. The Evaluation Mission finds that the process could have been a muchmore inclusive one—at a much earlier stage in the process.

While, MoLJ has submitted the Draft Criminal Code and Code of Criminal Procedure to publiccomment as of 24 June 2010, the question must be raised, “Are citizens and civil society in Nepalcurrently capacitated at a level that enables them to participate in the process of legislativedrafting and comment, even if they are nominally afforded an opportunity?”


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There remains an overall lack of UNDP programming to date to support the development ofpublic participation in law making in general. UNDP needs to explore ways to empower localcivil society in Nepal to participate in the law making process, to introduce and institutionalizepublic hearings—not only at the level of the Parliament itself, but at the level of administrativeagency/line-Ministry rule making.

UNDP and donors should continue to take into account traditional and customary practices inNepal when drafting legislation. UNDP A2J project has recently posted a ToR for CustomaryLaw ascertainment research, which is encouraging, but this should be made a part of anylegislative drafting initiatives undertaken by the project going forward.

Moreover, the period following adoption of a new Constitution in Nepal will entail a vast amountof legislative reform at all levels in a process that can be expected to take a decade or more toaccomplish. UNDP and other Donors in Nepal have to date paid relatively little attention todeveloping implementing legislation or to administrative law and process in Nepal.

Finally, as discussed further in Section 8 of this report, the Evaluation Mission expresses concernregarding what is an apparent lack of coordination by UNDP internally and the UNCT overallamong their various legislative-drafting initiatives undertaken between 2001-2010.


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6. Assessment of Synergies between UNDP RoL/A2J/Human Rights andSupport to Peace 2001-2010 and beyond

6.1 Evaluation of Synergies between A2J and Peace Building 2001-2010As discussed in Section 5 above, UNDP’s support to building capacity of the courts and judiciary,community mediation, paralegal committees, gender rights, the NHRC and legislative reformshave contributed to the peace process in Nepal between 2001-2010.161

A UNDP study “Access to Justice During Armed Conflict in Nepal” (UNDP Nepal 2005) furtherdocumented the links between conflict and lack of access to justice in Nepal. The study laid thefoundation for the CPAP 2008-2010 that also reflects a link between A2J and peace and set forthUNDP deliverables for A2J and Human Rights including continued support to the peace process,courts, the judiciary and the National Human Rights Commission. The study was instrumental informulating priorities under the new A2J project and foreshadowed the BCPR-UNDP StrategicPartnership Framework 2009.

Despite identifiable contributions to peace building during 2001-2010, however, it is perceivedthat UNDP Rule of Law/A2J and Human Rights outputs could have been much more robustregarding transitional justice and peace during recent years—especially since the signing of theCPA in 2006.162

Stakeholders interviewed by the Evaluation Team were of the opinion that a number of potentialsynergies between UNDP Governance: Rule of Law, Access to Justice and Human Rights andUN/UNDP peace building had not been fully realized to date.

Many of these synergies concern lack of coordination and communication between the UNDPAccess to Justice Project and the UNDP Peace Building Unit’s Centre for ConstitutionalDialogue (CCD) (i.e. failure to synchronize or harmonize legislative drafting initiatives with thelegislative drafting initiatives of other UN agencies or the Constitutional drafting process beingsupported by the CCD; lack of parallel programming by A2J for the judiciary and lawyers on keyConstitutional issues; lack of public awareness raising, etc.). These are summarized in the Tablebelow.

Other stakeholders complained that UNDP A2J had not sufficiently availed itself of opportunitiesto utilize paralegals, mediators and CBOs as conduits of information on the peace process. TheUNDP Rule of Law Programme was criticized for being overly project based with a focus uponactivities and not strategic in its programming. Some stated that UNDP A2J could have pursueda much more robust platform of programming that utilized the CPA as its central organizingmechanism to support a pro-poor legal-empowerment agenda more highly tailored to the needs ofpost-conflict Nepal.

It was also noted that UNDP A2J missed opportunities to work with Local Peace Committees andVDCs more intensively or target youth in the Terai region of Nepal. Furthermore, although

161 UNDP supported PLCs and community mediation resolved a number of disputes at the local level and empoweredwomen and the poor, thereby reducing the risk of renewed conflict and contributing to transitional justice. UNDP supportto NHRC investigations was crucial in uncovering evidence of human rights violations in several cases. Additionally, theUNDP SCNHRC Project reports that it has worked with the CA’s Fundamental Rights and Directive Principles in an effortto ensure that human rights are recognized as fundamental rights in line with international instruments.162 The revised project document for “Enhancing Access to Justice for Consolidation of Peace in Nepal (2009-2012)” (newA2J project) is UNDP’s attempt to correct this deficiency. The project document incorporates elements of the UNDP-BCPR SPF that will exploit synergies with peace building and transitional justice scheduled and is scheduled commenceexecution in 2011. (See, Section 5 above).


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UNDP SCNHRC is currently supporting the dissemination of public information in the media andUNDP A2J Project plans to increase its support to transitional justice through the UNDP-BCPRSFP and revised A2J project it is perceived that such initiatives could possibly have been initiatedearlier than 2010.

The Nepal Human Development Report 2009The Nepal Human Development Report 2009 specifically links A2J with the peace process inNepal.163 Included among its many observations and suggestions to facilitate the peace processare the following for UNDP and UNCT:

o Focus on pro-poor A2J agendao Assist minorities and persons with disabilities to obtain identity documentso Ensure that civil society and community leaders are consulted with regard to the

Truth and Reconciliation Commission and other transitional justice initiativeso Advocate for a Truth and Reconciliation Commission that effectively strikes a

balance between the ending of impunity an the maintenance of peaceo Opt for models of restorative justice, rather than retribution—placing victims at

the centre of the processo Conduct legislative mapping to meet international standards and end

discrimination against women, Dalits and minoritieso Generate data on IDPs and especially land seizures, compensation and registration

of IDPso Advocate for better access to serviceso Assist the poor and victims of conflict to register for benefits including MoPR

Financial Assistance (per MoPR “Norms and Guidelines” 2007)o Create a role for discharged combatants in restorative justice effortso Increase programming with community policing initiatives and community

relations, including training for the policeo Strengthen the Paralegal Committees (PLCs), referral mechanisms and guidelineso Increase emphasis on community mediationo Improve vehicles for anonymously reporting incidents of judicial corruptiono Develop targeted training for Chief District Officers (CDOs)o Engage with Local Peace Committees (LPCs) on the basis of terms of reference

(revised 2009) as mechanisms of information distribution, spokespersons for civilsociety and human rights, transforming LPCs into effective bodies

The revised A2J project and BCPR SP, if fully implemented, will address most of the aboveissues and there is great potential for achieving a successful Outcome in 2011 and beyond.

Draft Nepal Peace and Development Strategy 2010-2015In addition, UNDP Rule of Law and A2J is currently rendering technical support to GoN in theform of advice and comment on the Draft Nepal Peace and Development Strategy 2010-2015164

that contains a number of potential synergies between justice, rule of law, gender/social inclusionand peace building. Using the CPA as its foundation, the Draft Strategy sets forth priorities forshort-term and medium to long-term peace support—beginning with reorienting developmentsupport towards “helping to deliver tangible benefits to poor communities” and graduatingtowards helping Nepal develop its socio-economic sectors through development assistance tosocial inclusion, rule of law, land reform, good governance, inequality and inclusive growth, staterestructuring and employment creation. Addressing impunity and a successful implementation of

163 Nepal Human Development Report 2009, Chapter 3 “Getting the peace process right” (UNDP Nepal 2009).164 Draft Nepal Peace and Development Strategy (version of 03 August 2010).


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federalism are key themes. It suggests that Donors shift from a project-based approach toSector Wide Strategies and frameworks for development assistance in order to better realize apeace dividend in Nepal.

6.2 New synergies expected to arise between UNDP A2J and Peace Building duringConstitutional drafting and after a new Constitution is adopted for NepalWhat is not mentioned in the revised project document for “Enhancing Access to Justice forConsolidation of Peace in Nepal” are the synergies between the process of drafting and adoptinga new Constitution for Nepal or taking into account how the adoption of a new Constitution willimpact upon on A2J programming for transitional justice, equality and peace. The BCPR SPFmakes this link to some extent, but the revised project document for A2J doesn’t mention theConstitution drafting process at all—despite the fact that at the time of its signing the newConstitution was anticipated to be adopted within the coming year and the CCD was fullyfunctional.

Synergies with CCD and CA CommitteesA recent “Review of the Centre for Constitutional Dialogue CCD” notes many areas of need forensuring the adoption of a new Constitution in Nepal and the peace process in Nepal. 165 Whilenot directly addressing synergies between A2J and peace, the evaluation’s findings do suggestareas of UNDP A2J synergies such as: more A2J support to gender and inclusion issues andmobilizing civil society for the rights of minorities; alignment of A2J legislative drafting with theConstitution; mobilizing media; and utilizing CCD's physical space for some A2J trainingactivities.

While 80% of the issues relating to the drafting of a new Constitution have been resolved by theCA Committees, there are between 18 to 20 critical issues remaining. The CCD is now focusedon these issues and negotiations will occur within the CA over the next 10 months. There areinconsistencies among the CA Committee reports regarding the structure of the court system,judicial independence and the role of a Constitution Court (i.e., the CA Committee on the JudicialSystem does not accept the role of a Constitutional Court, but the report of the CA StateRestructuring Committee does accept it).

Many stakeholders, including the Nepal Bar Association and other NGOs have recently generated“white papers”166 analyzing the reports of CA Committee on the Judiciary and the CA Committeefor Fundamental Rights and Directives. UNDP A2J should also be fulfilling such a role via itsin-house staff and support to local scholars in Nepal and internationally to generate such criticalanalysis and comment.

Implications of a new Constituent for UNDP’s Rule of Law Programming in NepalMost importantly, following the adoption of a new Constitution a consequent process ofConstitutional “adhesion” will need to take place in Nepal. If this process does not proceed in astrategic manner addressing all levels of state administration, access to justice and human rightswill be negatively impacted and the risk that Nepal will lapse into renewed conflict will increase.The experiences of other countries that have adopted new Constitutions and federal systems

165 Review of Centre for Constitutional Dialogue (CCD)(28 May 2010)166 See, “The Judicial System under Nepal’s New Constitution: Position Paper of the Nepal Bar Association” (Nepal BarAssociation 2010).


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indicate that this process will span many years and entail initiatives on the part of A2J.

A recent review of the CCD states that, in a post-Constitution environment, UNDP will need toeducate the public on the new Constitution; the process of Constitutionalimplementation/transition; coordinate all stakeholders in the rule of law sector and conductmassive outreach and education on the democratic process and Constitution with women,indigenous people, minorities, persons with disabilities and youth. Stakeholders interviewed bythe evaluation team also stressed the need for UNDP to anticipate the impact of sub-national unitsand a proliferation of new ministries within a possible federal system; decentralization of thejudiciary and to find an internal structure within UNDP that can align with the new Constitutionalstructure and government planning.167

UNDP Rule of Law and Access to Justice programming can play a key role in the facilitation ofthis process via the provision of technical advice to the GoN and sub-national units of governancewhen these are established. As stated, UNDP A2J will begin executing the UNDP-BCPR SPF in2011 representing the capture of significant synergies with transitional justice and peacebuilding.168

The people of Nepal are growing increasingly frustrated with both the international communityand their own senior political leaders. The continued delay in reaching a consensus, finishing thework of the CA Committees169 and adopting a Constitution are elevating the risk of renewedconflict in Nepal. While there is no guarantee that the CA will be able to reach the 2/3 supermajority necessary to adopt a new Constitution; or, for that matter, that concepts of federalismwill continue to be embraced, UNDP must be ready to act with an “all hands on deck” footingwhen and if a Constitution is adopted.

The CCD and its future location within UNDP COThere is currently discussion with the UNDP CO of relocating the Support to ParticipatoryConstitution Building in Nepal (SPBCBN) Project and CCD from the UNDP Peace Building andReconstruction Unit to the UNDP Governance Unit including some or all SPCBN/CCD activities.

While the CCD is not the main focus of this report, the Evaluation Mission makes the followingobservations with regard to the possible relocation of CCD to UNDP Governance: i) Moving theCCD from Peace Building and Reconstruction Unit to Governance (Rule of Law) should notdisrupt the day to day operations of the CCD; ii) Such a move should entail a strategic assessment

167 According to Binda Panday, Chairperson of the CA Committee on Fundamental Rights and Directive Principles, “…thekey issue is how to support the human rights process after the new Constitution is passed. Much work will be required toeducate the public on their rights under the new Constitution. Additionally, UNDP will need to map out how such rightswill be delivered in a federalist state after passage of the new Constitution and support Ministries with regard to humanresources, budgeting and knowledge in order to capacitate them for delivery of rights including not only civil and politicalrights, but also economic, social and cultural rights.” [Evaluation Team interview 02 August 2010].168 UNDP A2J Project and UNDP Peace Building and Reconstruction Project could coordinate to mobilize the A2Jcommunity mediators and paralegals for promoting peace through resolving conflict through mediation. Furthermore,they can become involved in facilitating local people in the truth telling process and transitional justice process in particular.CCD can take advantage of the paralegal committees of the A2J programme that have more than 1000 energetic PLCs inseven districts and 20 community mediation centres in four districts to ensure massive participation in the Constitutiondrafting process and subsequent period of Constitutional “adhesion” in Nepal. The lessons learned from A2J mediationare also applicable to the UNDP Peace Building Units new initiative “Leadership, Dialogue and Conflict Prevention” thatincludes some elements of mediation in the resolution of community-community disputes about socio-political issues thatare multi-party in nature.169 Three out of a total of eleven thematic CA reports are now with the CA Constitutional Committee (CC). The CC hasstated publicly that it cannot begin its work until the remaining eight reports have been deposited.


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by UNDP CO as to the proper allocation of CCD’s current and predicted future activities betweenUNDP Governance Unit and UNDP Peace Building and Reconstruction Unit—most importantlyas to respective areas of competence for Transitional Justice activities taking into account theUNDP-BCPR SPF allocation and relative comparative advantages of UNDP Peace Building andReconstruction and UNDP Governance; iii) UNDP CO should also ensure that UNDPGovernance Unit’s Rule of Law/A2J programme is restructured in advance of any transfer ofCCD to Governance Unit to ensure that a strategic conflict prevention/transitional justiceprogramming framework is firmly in place, rather than placing SPCBN/CCD within the existingRule of Law and Access to Justice Programme as simply another project to be executed; iv)Transitional Justice activities are “highly sensitive” in nature and warrant careful reflection—these should continue to be executed under a DEX or partial DEX/NEX modality on an activity-by-activity basis; v) Any overlap in programming specifically directed to former combatants,cantonments and DDR should continue to be executed by UNDP Peace Building Unit; vi)Whether SPCBN/CCD remains within the UNDP Peace Building and Reconstruction Unit or istransferred to UNDP Governance Unit, engagement with senior leaders of the political parties inNepal will be crucial to both Constitutional drafting process and transitional justice and peacebuilding; and vii) UNDP CO should look upon the transfer of SPCBN/CCD as an opportunity toincrease capitalization of synergies between Rule of Law/Access to Justice and Peace Buildingand become more responsive to the emergent needs of CA members.

CCD to date has substantially enhanced both the effectiveness and inclusiveness of theConstitution building process in Nepal. The CCD has provided a platform for neutral, fact-baseddialogue on the new Constitution. CCD has conducted awareness raising and facilitated theprocess of CA Constitutional Committee concept papers. As stated above, CCD has alsoidentified 18 to 20 Critical Issues that remain and has provided strategic advice regarding thesequencing of changes contemplated by the Constitutional drafting committees. This type ofadvice goes beyond the 18 to 20 critical issues identified by CCD. CA members continue toattend CCD programming.

Some CA members interviewed by the Evaluation Team complained, however, that the CCD hasfailed to date to engage with political parties; that CCD has not expanded its roster of experts toinclude as many Nepali experts as it could have; that CCD has not adapted its programming tomeet the needs of CA members; that CCD has organized too many activities using the sameexperts; and that CCD offers too few opportunities for CA members to provide feedback on itsactivities.

The recent UNDP “Review of the Centre for Constitutional Dialogue” (cited above) suggestsareas for improvement in the work of CCD most importantly that it engage with the seniorpolitical leadership in Nepal. The CCD is currently addressing many of these issues and isplanning to engage more directly with senior political leaders in Nepal during its subsequentphases of programming.

Importantly, it should be remembered that the CCD is sui generis in character and in many waysoperates by definition and necessity more akin to a U.N. political mission than a classicdevelopment initiative.

A summary of potential synergies between A2J and Peace Building prepared by the EvaluationMission is set forth in the Table below.


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Synergies between UNDP A2J, Peace Building and Transitional Justice 2001-2010 and beyondPotential synergies between UNDP A2J and peace building inNepal that had not been fully captured by A2J as of September2010 that should be explored in the future.

Additional potential synergies expected to arisebetween UNDP A2J and Peace after a newConstitution is adopted for Nepal and during a periodof Constitutional “adhesion”.

o Aligning UNDP Rule of Law/A2J legislativedrafting with the Constitution drafting process andUNDP SPCBN project as well as the legislativedrafting of UN agencies/ Donors

o Participating in a pro-active discussion on CAConstitutional Committee concept papers amongthe judiciary, lawyers and legal scholars throughroundtables, conferences, e-rooms, newsletters,etc.— and highlighting the normative issues, gapsand conflicts that exist among and between someof the CA concept papers

o Utilizing the Centre for Constitutional Dialogues’physical space for judicial seminars and CLE.

o Facilitating wide-discussion on transitionaljustice, truth and reconciliation, enforceddisappearances, reparations and the impact ofreintegration of former combatants on the legalsystem through roundtables, conferences, e-rooms, newsletters, etc.

o Conducting extensive public awareness raisingcampaigns on the CPA, other peace initiatives,tolerance, human rights and access to justice

o Mobilizing civil society in support of pro-poor,women and minority issues as a function of peace

o Mobilizing Media and making the connectionbetween dispute resolution, rights and peace

o Supporting outreach, small grants, creative artsand “street law” programmes targeted to youth inthe Terai region

o Utilizing paralegal committees and mediators asmessengers of peace process, with a continuedemphasis on gender justice and A2J at the locallevel

o Capacitating the National Women Commissionand National Dalit Commission

o Empowering the local peace committees (LPCs)o Supporting more training of CDOs and VDC staff

on justice and human rights issueso Engaging with leadership of political partieso Increasing UNDP A2J field presence in

anticipation of UNMIN and OHCHR loss ofcorresponding field presence

o Conducting political analysis in advance of A2Jprogramming

o Conducting a mapping of customary andtraditional law and dispute resolution mechanismsin Nepal

o Support to transitional justice initiatives and theestablishment of a Truth and ReconciliationCommission and Commission on EnforcedDisappearances

o Generating better data on IDPs.o Supporting identity documentation and

registration for benefits from MoPRo Increasing programming with policeo UNDP-BCPR Strategic Partnership Framework

and Draft Nepal Peace and Development Strategyfor 2010-2015

o Participating in a mapping exercise of allpotential synergies created by theadoption of a new Constitution to be ledby UN RR.

o Conducting a legislative mappingexercise to determine legislation thatneeds to be amended in light of newConstitution as well as key pieces ofadditional legislation, by-laws andpolicies that need to be formulated

o Supporting a mapping of administrativelaw, procedures and regulations in Nepal

o Creating a central mechanism within theRCO to review and coordinate alllegislative drafting exercises undertakenby UN/UNDP

o Conducting additional and massivepublic awareness raising campaigns to onthe new Constitution and its keyprovisions to ensure Constitutional“adhesion”

o Supporting seminars, conferences,roundtable discussions with members ofthe judiciary, lawyers, law enforcementand local government and administrationon the new Constitution and itsprovisions

o Support to sub-national legal and judicialsystems, ministries, agencies andadministration that might arise as a resultof the adoption of a federal model anddevolution of power from centralauthorities to local authorities

o Offering technical advice and sponsoringknowledge products, studies, “whitepapers” and other publications formembers of the judiciary, legalprofession and legislative bodies thatresponds to emerging issues and needs ofstakeholders—especially as concern localgovernance, legal empowerment of thepoor, women and gender rights, rights ofpersons with disabilities and economic,social and cultural rights.

o Further supporting and empowering localauthorities to solve local disputes

o Further exploration of synergies basedupon both the UNDP-BCPR StrategicPartnership Framework and Draft NepalPeace and Development Strategy for2010-2015

o Develop Sector Wide Approaches forDonors in key sectors


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7. UNDP Rule of Law Contribution to MDGs and Legal Empowermentof the Poor in Nepal

The Resident Coordinator’s Annual Report Nepal 2009 states that cross-agency support to theMDGs as an area of focus for 2010.170 The recently published 3rd UNDP Nepal MDG Report171

while noting that Nepal is close to achieving several of the eight MDGs (i.e. according to thereport poverty declined to 25.4 percent in 2009 from 42 percent in 1996, with a 5 percent drop inthe last five years alone). Yet, a quarter of the population still lives below the poverty line, theproportion of the population that is considered “working poor” is growing, as is the gap betweenrich and poor. Maternal health and rates of child mortality are still high and there are greatdisparities between rural areas and cities. The report recommends “the government should makethe redistribution of benefits, social justice, and mainstreaming of populations and geographicareas its overarching goal.”

The Evaluation Team’s analysis in Section 5 of this report indicates that UNDP contributions tothe advancement of the MDGs in Nepal through its RoL/A2J programming could be improved,but also that UNDP has correctly targeted women and minorities through its support to paralegalcommunities and community based meditation in rural areas. UNDP’s early studies incommunity based justice need to be continued and expanded upon—these will help UNDPfurther tailor community-based justice initiatives to minorities and the poor and advance inparticular MDG-1 and MDG-3.

Ultimately, the prevailing literature and experiences with UNDP programming in the field innumerous countries including Nepal indicate that advancing the MDG “gaps” requires anapproach that combines the best of traditional RoL orthodoxy and a “pro-poor”/human rights-based A2J/LEP approach.172 In order to advance the MDGs, UNDP, in partnership with nationalgovernments, must support legislative and structural changes at the top, while also taking a“bottom-up” LEP approach that enhances meaningful access to justice and opportunity for theworlds “Bottom 4 Billion”. UNDP A2J programming targeted to local level, pro-poor, women,most vulnerable groups—and conflict/post-conflict areas—offers great potential for advancingthe MDGs.

170 Resident Coordinator’s Annual Report Nepal 2009 at p. 5.171 3rd UNDP MDG Report (UNDP 07 September 2010)172 Following 2006, UNDP’s RoL/A2J practice and that of other donors (i.e. World Bank) gradually evolved to takeaccount of the “Legal Empowerment of the Poor” (LEP) movement172, which is closely aligned with the MDGs. Amongthe recent U.N./UNDP resolutions, reports, studies and dialogues taking an LEP approach and articulating a nexusbetween RoL/A2J and the achievement of the MDGs are the following: 1) UNDP “Huritalk-Human Rights PolicyNetwork” (various 2010 web-postings); 2) UN General Assembly Resolution on “Legal Empowerment of the Poor”(A/C.2/54/L.4/Rev.2; 3 December 2009); 3) UN General Assembly Resolution on “Legal Empowerment of the Poor andEradication of Poverty” (A/64/133; 13 July 2009); 4) “Talking Points on How UNDP works on Legal Empowerment ofthe Poor” (Kjorven, O, 25 May 2009); 5) “Envisioning Empowerment: A Portfolio of Initiatives for Achieving Inclusionand Development” (UNDP 2009)(featuring 23 UNDP projects as well as 27 project profiles shared by 10 partners); 6)UNDP Asia-Pacific Rights and Justice Initiative: Regional Assessment (UNDP, 2009); 7) “Making the Law Work forEveryone”: The Report of the UN Commission on Legal Empowerment of the Poor)(Vol. I and II)(United Nations2008)(and its thematic reports); and 8) “UNDP Gender Equality and Justice Programming: Equitable Access to Justice forWomen” (UNDP, 2007). UNDP BDP staff members also contributed to “Legal Empowerment: Practitioners’Perspectives” (Golub, S. and McInerney, T. eds.)(International Development Law Organization (ILDO), 2010). The abovesources—dominated by and endorsing LEP themes—present numerous case studies, observations, lessons learned andsuggested entry-points for RoL/A2J and LEP that “link” with advancement of the MDGs and eliminating the MDG“gaps” mentioned in the 2010 MDG Report.


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8. UNTC/“1-UN” Rule of Law coordination in Nepal

UNCT in Nepal and the Office of the Resident CoordinatorAll stakeholders interviewed by the Evaluation Team in Nepal stated that the RCO had deliveredan improved level of coordination among the UNCT recently—especially given the challengingenvironment of 2009.173 To date, however, joint programming in such areas as court reform,judicial independence, legal education, legislative drafting, continuing legal education,community mediation, paralegals, anticorruption, juvenile justice and youth and has not been asextensive as possible. The Evaluation Team has made several recommendations for jointprogramming and enhanced cooperation throughout its analysis in above sections of this report.The Evaluation Mission’s additional recommendations in this regard are as follows:

Creating a new mechanism within the RCO to Advise on Law and LegislationAs stated in Section 5 of this report, the Evaluation Team is seriously concerned by the fact thatlegislative drafting projects within the UNDP RoL/A2J projects and the UNCT have proceededwith little or no coordination with either the Constitutional drafting process, the legislativedrafting projects of other donor or for that matter in harmony with the existing domesticlegislation of Nepal and/or international human rights treaties and obligations.

Drafting legislation is a highly technical endeavour that requires specialized legal skills.Furthermore, legislative-drafting initiatives should not be undertaken by any agency of the UNCTunless they are harmonized with other such UNCT initiatives and those of other Donors/INGOs.This is currently a crucial “missing link” in the UNCT’s effort to align its contributions in rule oflaw, access to justice and human rights—especially given the prospect of a new Constitution andthe numerous legislative revisions, new implementing legislation, by-laws and regulationsnecessary to ensure adhesion of a new Constitution in Nepal. When UNCT agencies and projectspursue legislative drafting initiatives in isolation, they risk violating the “do no harm” principal ofinternational development assistance.

UN Rule of Law Coordination and Resource GroupThe RCO has recently begun to prepare a matrix of UNCT contributions to rule of law, access tojustice and human rights in preparation of a forthcoming assessment to be undertaken by the “UNRule of Law Coordination and Resource Group” (ROLCRG).174 The forthcoming assessment

173 The RC’s Annual Report Nepal 2009 notes that coordination between UNDP and UNCT occurred in 2009 withinUNDAF Priority A (Consolidating Peace) regarding discharge of former Maoist combatants and their reintegration as wellas the Constitution drafting process; UNDAF Priority C (Sustainable Livelihoods) wherein UNDP’s livelihoods projectcreated 12,800 mico-enterprises and micro-entrepreneurs; and UNDAF Priority D (Human Rights, Gender Equality andSocial Inclusion) which led to more government and community awareness on SGBV and the passage of a DomesticViolence Act; joint UNDP OHCHR support to the NHRC; the formation of a High-Level Steering Committee on UNSCR1325 and 1820; and OHCHR technical support to the MoPR and MoLJ to ensure that international standards werecomplied with in the drafting of domestic legislation; and draft legislation, namely the draft Bill on the Commission ofEnquiry into Enforced Disappearances, and the draft Bill on Truth and Reconciliation Commission. UNDAF Priority AThematic Group is co-chaired by UNDP and UNICEF.174 Nepal has been designated as one of two “pilot” countries under ROLCRG. Ultimately under the authority anddirection of the Secretary-General, responsibility since 2007 for the overall coordination and coherence of rule of law withinthe United Nations system rests with the Rule of Law Coordination and Resource Group. The Group is chaired by theDeputy Secretary-General and supported by its secretariat, the Rule of Law Unit. Members of the Group are the principalsof the Department of Political Affairs (DPA), the Department of Peacekeeping Operations (DPKO), Office of the HighCommissioner for Human Rights (OHCHR), the Office of Legal Affairs (OLA), United Nations Development Programme(UNDP), the Office of the United Nations High Commissioner for Refugees (UNHRC), the United Nations Children'sFund (UNICEF), the United Nations Development Fund for Women (UNIFEM) and the United Nations Office on Drugsand Crime (UNODC). The Group serves an important coordination function, while the operational role remains squarelywith the individual UN entities. The Secretary-General informed the General Assembly of his decision to create the Group


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supports ROLCRG Joint Strategic Plan 2009-2011, Principal Outcome 2: “In selected pilotcountries, effective UN Joint Programmes are carried out in support of national rule of lawefforts”. A copy of the draft of the matrix of August 2010 (as supplemented with additionalinformation from the Evaluation Team) appears in the ANNEX of this report.

The Evaluation Mission recommends that ROLCRG activities in Nepal attempt to address boththe “supply-side” and the “demand-side” of the rule of law and access to justice equation. Basedupon its interviews with numerous stakeholders, the Evaluation Mission suggests the followingpossible areas of engagement for ROLCRG in Nepal: 1) coordinating the establishment of acentralized mechanism in the RCO for all UNCT sponsored legislative drafting initiatives; 2)coordinating efforts among UNCT to remove “roadblocks” to the implementation of NHRCrecommendations (and harmonizing laws and capacitating GoN for the TRC and CoED); 3)coordinating programming that addresses the quasi-judicial authorities in Nepal (i.e. CDOs andtheir power to arrest, detain and adjudicate); 4) coordinating over-arching Strategies for the Ruleof Law, Anti-Corruption and Human Rights in Nepal; and 5) coordinating training andprogramming directed towards community-based justice initiatives and peace committees inNepal. All of these have been discussed elsewhere in this Evaluation Report.

To the extent that Witness Protection initiatives are undertaken by UNDP or ROLCRG, if at all,the Evaluation Mission cautions UNDP/ROLCRG to be extremely cognizant of the potentialburden that will be imposed—both budgetary and administratively—upon Nepal’s institutions(i.e. OAG; Supreme Court and District Courts, etc.) in the event that a large scale witnessprotection initiative is undertaken. Witness Protection is a topic currently under discussion byUNDP/OHCHR and within Nepal’s Donor community.

Donor coordination will be key for the success of ROLCRG.

in his 2006 report “Uniting our strengths: Enhancing United Nations support for the rule of law”. The system-widearrangement laid out in the report includes a system of non-exclusive lead entities for various rule of law sub-sectors.Lead entities bear the responsibility for the coordination and facilitation of efforts in their respective sub-sectors of the ruleof law. The General Assembly has expressed full support for the overall coordination and coherence role of the Group,under the leadership of its Chair, the Deputy Secretary-General, and supported by the Rule of Law Unit in the ExecutiveOffice of the Secretary-General (A/RES/63/128, A/RES/64/116).minimize fragmentation across all thematic rule of law areas, including justice, security, prison and penal reform, legalreform, constitution-making, and transitional justice. The mission of its members is to work together and in support of oneanother, in the spirit of shared values and principles, to ensure effective and coherent UN rule of law efforts that are alignedwith the aspirations of partners at the national and international levels.in the development of overall strategies for rule of law assistance; providing policy direction by the preparation of policypapers, in conjunction with relevant lead entities; maintaining a clearing house of information about who in the UNprovides what rule of law assistance, as an information resource for those inside and outside the United Nations; helping toensure the Organization’s effective and coherent responses to requests from States for assistance, in close collaborationwith lead entities; facilitating contact between United Nations actors involved in rule of law programming and MemberStates, regional and intergovernmental organizations, donors and non-governmental organizations; and acting as a resourcefor the Peacebuilding Commission and Peacebuilding Support Office. Joint Strategic Planfor 2009-2011 and has to date developed Guidance Notes of the Secretary General on: United Nations Approach to Ruleof Law Assistance; United Nations Approach to Justice for Children; United Nations Assistance to Constitution-makingProcesses; and United Nations Approach to Transitional Justice. [Source: www.unrol.org].


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UN Peace Fund for Nepal and other initiatives impacting access to justice and human rightsThe Evaluation Team observes that to date no UNPFN funds have been channelled directly to theUNDP A2J Project.175 The UNDP BCPR SPF and its transitional justice and peace outputs mayoffer joint programming opportunities with other members of the UNCT that are also candidatesfor UNPFN finances. ROLCRG may also be able to draw upon and lend greater coordination tothe UN Peace Trust Fund support.

The Importance of Combining Political Analysis with Rule of Law ProgrammingAll too often, UNDP COs and UNCTs around the world formulate their rule of law programmingin a vacuum without making sufficient connections between the political situation on the groundand UNDP’s outputs. In the case of Nepal, post-2006, the rise of the Madhesi movement in theTerai176 adds yet another dimension to an already complex spectrum of ethnicity and castedisparities in Nepal. Increasing attention needs to be paid in UNDP A2J programming to intra-community awareness-raising as a component of UNDPs Transitional Justice outputs. Forexample, it is not only a matter of promoting tolerance between Dalits and Brahmin in Nepal, butalso between the Madhesi and the persons with origins in the hill districts.177

175 See UNPFN “Fact Sheet” of 14 June 2010 listing Approved Projects to date; and 1st, 2nd and 3rd Consolidated AnnualProgress Reports on Activities Implemented under the UNPFN (23 July 2008, 23 June 2009 and 04 June 2010,respectfully).176 See, Bevan, J. and Gautam, B. “Political Economy Analysis: the Madhes/Tarai” (a report for DFID Nepal 2007)177 DFID ESP related to the Evaluation Mission that there is currently an ongoing need for good empirical studies onmixed-communities and ethnicity in the Terai.

www.unrol.org


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9. Contribution of UNDP CO to the Outcome

Structure and Configuration of the COThere is currently talk within the CO of adopting a more simplified office structure going forwardfor programme management, formulation, policy development and advocacy.

A recent CO internal discussion paper suggests a structure that divides the Governance and Ruleof Law cluster into four programmes: 1) Public Administration Reform/Corruption; 2)Constitution-making/State restructuring/Federalism; 3) Local governance; and 4) Rule ofLaw/Human rights. In addition to Governance and Rule of Law, other CO clusters wouldinclude Climate Change and Environment; Disaster Risk Reduction; Poverty and Inclusion andAid Effectiveness. The discussion paper suggests augmenting the CO clusters with a number ofpolicy advisors within the CO.

Overall rates of project execution and delivery of fundsOverall rates of project execution and delivery of funds at the CO have improved since 2007.The CO has also become more efficient during this same time period (i.e. in terms ofadministrative costs involved with programme execution, managing a larger programme withapproximately the same administrative resources). For example, in 2008 administrative andcentral management costs at the CO accounted for 11.6% of expenditure, by 2009 these costsaccounted for only 7.5% of total expenditure.178 At the same time the reporting demands placedupon the CO by UNDP headquarters in New York were increasing exponentially.

According to the 2009 ROAR (as updated 26 January 2010) programme approximate expenditurein US$ for Outcome 2.2. “Responsive and accessible justice systems to promote gender equality,social inclusion and the rule of law, including formal and informal processes was as follows:

Programme expenditure for Outcome 2.2. in US$2010-12 32,0262009 609, 9212008 446,7892007 1,519,2472006 1,772,3872005 1,291 4312004 1,588,611_________________________________________Cumulative 2004-2010(Q1) 7,460,412

Percentage of expenditure for Transitional Governance (including Access to Justice and supportto the NHRC) was 20% in 2008 and dropped to 16% by 2009.179 UNDP consistently relied uponthe same funding sources and partnerships for it’s A2J and NHRC projects during 2007 to 2009.A notable addition to A2J was BCPR funding in 2009. A number of donors discontinued supportto NHRC, however, after 2008.

178 See, 2007-2010 UNDP Nepal Annual Reports.179 Id.


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For example, 2008 cf. 2009 Donors and committed funds in Access to Justice and Human Rightswere as follows:

2009 Funding SourcesSource: UNDP 2009 Annual Report

Strengthening the Capacity of the NHRC(SCNHRC) Phase II

Enhancing A2J for Consolidation ofPeace in Nepal

Finland $602,410 UNDP BCPR $1,600,000Danida $393,700 UNDP $1,200,000British Embassy $331,675SDC $461,255UNDP $160,000

2008 Funding SourcesSource: UNDP 2008 Annual Report

Capacity Development of the National HumanRights Commission (CDNHRC) Phase I

Enhancing A2J through Legal andJudicial Reforms Project (A2J)

Finland $345,748 UNDP $400,000Danida/Denmark $149,682DFID $1,043,916SDC $284,926UNDP $1,007,574

Canada $943,850Norway $455,633Ford Foundation $201,783USAID $159,540

UNICEF $45,000AusAid $16,286

Financial Auditing, Oversight and Quality ControlThe CO has recently conducted two (2) separate audits—both were passed without material issue.A recent audit of the A2J project, however, noted some departures from UNDP CO guidelinesregarding internal record keeping at the project, hiring of NGOs and results reported to the COthat could not be accounted for in project activities. The CO in its management response statedthat it took such inconsistencies seriously and would take measures to ensure enhanced statisticalrecord keeping within the A2J project and adherence to procurement guidelines.

As noted in above Section 5, the Evaluation Mission makes the strong recommendation that A2Jcontinue to improve upon its internal record keeping and oversight of NGOs hired by the project.

CO-level knowledge products 2001-2010The CO generated a number of publications and knowledge products 2001-2010. Some key CO-level publications during 2001-2010 included the following:

Nepal Human Development Report 2001 Nepal Human Development Report 2004 Nepal Human Development Report 2009 Nepal MDG Progress Report 2005 The MDGs Needs Assessment Report 2006 The MDGs District Level Reports Access to Justice During Armed Conflict in Nepal 2005 Readings in Human Development VCD Block Grants Report


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UNDP CO Senior Gender AdvisorNepal is one of 10 countries that have a BCPR-funded Senior Gender Advisor within its CO aspart of BCPR’s Global Programme on Advancing Gender Equality in Post-Conflict Settings. TheGender Advisor works to streamline Gender across the CO and build a gender component intoeach programme and conducts assessments of the UN Gender Equality Strategy throughout theyear. As such the Gender Advisor intersects with access to justice and human rightsprogramming.

The Gender Advisor has two broad mandates, one being providing technical leadership to gendermainstreaming across the four substantive areas of work under UNDP, and the other initiatinghighly focused actions to promote women, peace and security agendas (SCR1325 and 1820). Forthe former, she supports programmes to plan gender components, to offer quality assurance ofresults, and to rank programmes by gender marker scores, among others. Recently, CO hosted aBDP mission to evaluate the implementation of Gender Equality Strategy. For the latter, sheinvests in BCPR programming seeds funds to make specific changes. The Gender Advisor is alsoexpected to anchor women, peace and security themes in annual reports and to plan next actionsto further important agendas.

Recently, the Gender Advisor initiated Capacity-Building of Nepal Police in Gender Issues withFocus on SGBV and conducted an international learning event for Nepal Police, police delegatesfrom the region, Government of Nepal ministries working on SGBV and civil society to share andlearn from each other on how each party responds to similar challenges. In addition,strengthening women’s civic and political rights is also being planned with the ElectionCommission of Nepal.

Field presenceUNDP CO staff exhibited detailed and current knowledge of contextual, logistical andsubstantive characteristics of UNDP project activities in the field during the course of theEvaluation Teams meetings at the CO. Furthermore, the CO appears to maintain a good informalnetwork of reliable sources of information in the Districts where UNDP projects operate andoverall in general.

Staff from the CO itself has made regular visits to the field for both monitoring and evaluationand general information purposes pursuant to their ToR—in some instances exceeding thefrequency of project staff visits to the field.

By way of comparison, field visits undertaken by project staff had not occurred as frequently asone might have expected given the urgency of a post-conflict environment in Nepal. TheEvaluation Mission has made the strong recommendation that UNDP project managers and staffincrease the frequency of their visits to the field.


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Monitoring and EvaluationThe CO has a comprehensive “CPAP Field Monitoring Strategy for 2008-2010”180. The COM&E Office takes principal responsibility for monitoring in Western and Central Regions, aswell as the Eastern Hills and Mountains. In addition the CO maintains three field offices based inNepalganj, Dadeldhura and Biratnagar (with sub-offices planned) that, respectively, take providecoverage for monitoring the rest of the country and its regions.

“Field Monitors are expected to spend the major portion of their time in the field and tobring the “voices of the communities” to UNDP. Field Monitors are to focus theirattention on monitoring community level activities and processes (to ensure that activitiesare in fact happening, in an inclusive and participatory manner, with special attention topeace-sensitivity, gender equity and social inclusion issues) and on lower-level results,such as improvements to livelihoods through support to income-generation activities.They are also expected to signal any other issues, problems or success stories, as well asany changes in the context, that UNDP should be aware of.” [UNDP CPAP FieldMonitoring Strategy 2008-2010].

The major concern of the Evaluation Team with the CO M&E Strategy is not so much about itsdesign for information flow, but the extent to which CO M&E generated information is actuallyutilized by the projects themselves to adjust programming on the ground. Based upon theobservations of the Evaluation Team in the field and its interviews with A2J project staff, itappears that the UNDP projects are not fully using the M&E results to make adjustments andimprovements in programming.

Whether information generated by the CO M & E team is actually used by the UNDP projectsthemselves to adjust programming on the ground is a concern shared by the CO M & E team.The Evaluation Mission encourages the CO to take measures to correct any misperception on thepart of UNDP project staff that there is no mandate from the CO to use the information. UNDPCO should actively encourage the projects to make changes to day-to-day programming outputsand activities based upon M&E results (unless they think M &E has completely misunderstoodsomething and made a bad recommendation). The whole point is that M&E generatedinformation should be used to make adjustments and improvements, not simply feed into CO-level reporting requirements such as the ROAR.

Transitional justice and peace components are highly sensitive in nature and may require morefrequent monitoring and field visits going forward in years 2011 and beyond as UNDP begins toimplement transitional justice related activities.

180 UNDP Nepal “CPAP Field Monitoring Strategy” (2008-2010).


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10. UNDP’s Relations with its Donors and Partners and DonorCoordination in the RoL/Human Rights Sector in Nepal 2001-2010.

UNDP CO Support to PartnersUNDP Nepal’s partners and donors report having enjoyed good relations and cooperation withthe CO 2001-2010. Furthermore, government stakeholders, donors and UNDP project managersreported in interviews that the guidance, technical advice and overall support provided by theUNDP Governance Unit’s “Programme Analyst for Justice and Human Rights”, based at the CO,has recently proved crucial in the operation of UNDP projects to date.

Several donors interviewed during the course of the evaluation encouraged the CO to begin tomove away from project “silos” and take much more a strategic approach to rule of law andhuman rights programming. One donor in particular characterized this as a need for UNDP COto “move up the ladder” in terms of its strategic contribution to rule of law, access to justice andhuman rights policy in Nepal.

A number of donors expressed the desire for UNDP to become more pro-active in the rule of lawsector, advocate for change, raise the level of dialogue to a higher and more detailed level,demand more of its GoN partners and make recommendations in the form of white papers andanalysis. According to Advocacy Forum, “UNDP is a legitimate actor to raise issues with GoNand needs to be open and facilitate dialogue with government officials.”

It is the opinion of some donors that UNDP has not exhibited as high a level of technicalcompetence in the rule of law sector as other donors active in the sector (i.e. USAID), althoughthis was perceived to be improving recently as a result of UNDP’s efforts to improve its technicalexpertise in the Rule of Law practice area (i.e. the UNDP Asia-Pacific Regional Centre(APRC)).181 Donors encouraged UNDP to conduct a “very frank” assessment of what itscomparative advantage is in rule of law.

Meanwhile, other donors and partners stated that UNDP suffers from a public relations deficit inNepal and should strive to improve its image and “brand” itself as a “go to” source of knowledgeand technical expertise in the rule of law sector.

A number of bi-lateral donors and INGOs were active in rule of law, access to justice and humanrights in Nepal 2001-2010 through their programming many of these have been mentioned in thisreport.

For example, the Asia Foundation (TAF) implemented community mediation programme,DanidaHUGOU and DFID have also implemented community mediation projects in differentparts of the country. Meanwhile, USAID has been heavily active in supporting reform of thejudiciary, the courts and prosecutors. Both the Norwegian and Canadian Bar Associations havebeen active with the Supreme Court and Nepal Bar Association to implement legal aid in Nepal.Meanwhile, the American Bar Association Rule of Law Initiative (ABA-ROLI) has recentlysponsored presentations at the CCD on “Judicial Independence and Judicial Accountability”.

181 The APRC facilitates the Asia-Pacific Rights and Justice Initiative, which was launched in August 2002 in order todevelop a community of practice around the UNDP Democratic Governance sub-practice of Access to Justice. In terms ofsubstance, the Initiative explores and conceptualizes the links between access to justice and human rights and contributes todefining UNDP's niche in this field. The Initiative focuses particularly on the goals of equality and non-discrimination andemphasizes access to justice by disadvantaged groups.


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DanidaHUGOU reports that it has recently taken a decision to move away from targeting theformal justice sector and to focus more on a pro-poor and legal empowerment agenda and theinformal justice sector. DanidaHUGOU also reports that it is moving away from a projectapproach with NGOs and towards strategic partnerships. Such an approach is seen as crucial toempowering local-NGOs and preserving their autonomy.182

UNDP’s contribution to Donor Coordination in NepalAccording to DanidaHUGOU and other donors interviewed by the Evaluation Mission, donorcoordination has been difficult to achieve in Nepal to date due to the Conflict and politicalsituation. All donors claim to be doing there best, but the projects and programmes do notoperate in a very stable environment that makes it extremely difficult to plan strategically. In thejustice sector, there has been virtually “zero” coordination to date.183

UNDP CO, in an effort to advance the Outcome, is currently chairing a Donor CoordinationGroup on Alternative Dispute Resolution.184 This is a direct indicator of UNDP’s relativecontribution in this sector. UNDP CO should re-assess available opportunities for donorcoordination in Nepal, especially given the departure of UNMIN and the reduction in fieldpresence of OHCHR in Nepal.

UNDP is also active in developing a new “Peace and Development Strategy” for Nepal that wasin draft form as of August 2010. As mentioned in Section 8 above, donor coordination willprove key to the ultimate success of any initiatives by ROLCRG and to overall achievement ofthe Outcome by UNDP.

Beyond this, the donor meetings held at the UNDP CCD, as well as the CCD ConstitutionSupport Network’s daily “Media Monitoring” (a spreadsheet providing a synopsis of daily newsand press clippings relating to the process of drafting a new Constitution for Nepal) that isdistributed via an email list serve were both viewed as extremely valuable mechanisms forfacilitating coordination and information amongst donors.

182 By contrast, UNDP’s guidelines do not currently permit it to participate in strategic partnerships and this forces it tocontinue to programme from a project-based approach. It will require a change of guidelines and policy by UNDP at thehighest levels to allow UNDP to participate in such strategic partnerships.183 DFID (ESP) informed the Evaluation Team that it was currently undertaking its own mapping of donor coordination inrule of law.184 The group meets on average every other month to obtain and share updates on donor initiatives in Alternative DisputeResolution (ADR). Topics discussed at recent meetings have included: progress on the Mediation Bill, in court-referredand community mediation, media relations, updates on paralegal committees; trainings on domestic violence, etc. Thedonors interviewed affirmed that the ADR Donor Coordination group is highly valued


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11. Conclusion: Summary of UNDP advancement of the Outcome andfuture directions for UNDP A2J and human rights programming inNepal

UNDP has made important contributions to rule of law, access to justice and human rights inNepal during 2001-2010. The Supreme Court and Districts are better capacitated to performtheir adjudicatory and management functions and are now implementing lessons learned via theUNDP supported Pilot Court Programme (i.e. case allocation and case management). This hasimpacted favourably upon the quality of judicial opinion writings and overall statistics for rate ofadjudication and backlog. Court-referred mediation has been fully endorsed by the SupremeCourt in the form of a plan to create court-annexed mediation centres in all courts.

UNDP along with other Donors has supported community-based justice initiatives such ascommunity-based mediation, paralegals and legal aid desks for women that have delivered justiceand resolved disputes at the local level for a number of individual beneficiaries. This has laidthe foundation for future work in this sector and the eventual development of a comprehensivelegal aid delivery mechanism in Nepal.

UNDP in conjunction with OHCHR has continued to support the NHRC throughout the lastdecade; capacitating NHRC in its early work and fulfilling a crucial role in particular NHRCinvestigations of conflict related atrocities. With UNDP support, NHRC has undertaken studiesof Nepal’s legislation to conform to its international human rights treaty obligations. NHRCrecommendations have resulted in reparations paid to victims in many cases—although noprosecutions have resulted to date.

UNDP support to both MoLJ and NHRC has resulted in a number of other legislative reforms,and drafts of a new Civil Code, Code of Civil Procedure, Criminal Code and Code of CriminalProcedure for Nepal that have laid the foundation for revision of these drafts following a noticeand comment period.

UNDP CCD has advised CA members on issues related to drafting a new Constitution for Nepalthereby promoting the penultimate rule of law objective for Nepal: the adoption of a newConstitution.

UNDP support has clearly advanced the Outcome “Responsive and accessible justice systems topromote gender equality, social inclusion and the rule of law, including formal and informalprocesses” in a number of ways during 2001-2010 and laid a foundation for future work in thissector.

Yet, it is important to underscore that while women in general are better off than they were adecade ago,185 Dalit females are much in the same position today as in 2001.186 Caste-based

185 Normative advances for equality, such as those in the ICN 2007 Constitution, have occurred for both Dalit and Women.The 1990 Constitution of Nepal allocated 5% quota for female candidates of the House of Representatives and 3% for theNational Assembly. As of 2008, this was raised to a 33% quota for women in the CA. As of April 2008, women held onethird of the total of 601 seats in the CA. The Gender Empowerment Measure in Nepal improved during the last decade aswell (i.e. 17% improvement during 2006-2008)(0.496 to 0.581)[Source: Nepal Human Development Report 2009]; The totalnumber of women lawyers in Nepal has risen from 74 (1980-1990) to 649 (1991-2004) to 932 (2008) [Source: Nepal BarAssociation Report, “Ringing the Equality Bell, The Role of Women Lawyers in Promoting Gender Equality in Nepal, AReport on the Promotion of Women in the Legal Profession and in the Constitution Making Process” (Nepal Bar Assoc.2009, p.7).


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discrimination187, impoverishment188, denial of land189 and economic opportunities, SGBV anddiscrimination against persons with disabilities persist.190 Strategies are lacking for rule of law,access to justice and human rights that specifically target these populations. Meanwhile, there isvirtually no UNDP A2J programming to date on LGBT-based discrimination.191

Impunity is pervasive in Nepal and no prosecutions have resulted as a result of NHRCrecommendations that encounter significant political and legal roadblocks.

Transitional Justice has been largely underserved post-Conflict and there remains much work tobe done on drafting a new Constitution for Nepal and preparing the country for a period of post-Constitution “adhesion” and administrative reforms. Furthermore, the courts still exhibitsignificant case backlog and inefficiencies; there is no system of continuing legal education forlawyers; and juvenile justice and quasi-judicial authorities have not been targeted by UNDP ordonors sufficiently to date.192

The envisioned TRC and CoED are problematic from the perspective of the costs and politicalwill necessary to implement them as well as the administrative burden that they will place uponthe OAG. The power of the quasi-judicial authorities in Nepal to arrest and detain citizens isextensive and virtually unchecked.

A significant criticism of the A2J community-based justice initiatives is the fact that in no singledistrict were all elements of the UNDP initiative (i.e. court referred mediation; communitymediation; paralegals and women’s legal aid desks) operating at one and the same time. Thus,UNDP has not been able to document synergies between these various elements to any degree orsee how they operate in parallel within the same geographic area.

Initially, UNDP support tended to exhibit more of a “top down” than “bottom up” developmentapproach to programming. The launch of the second phase of the A2J project directed moreoutputs at the local level. Still, the Evaluation Mission is of the opinion that UNDP needs tobetter define its constituency going forward and the particular bundle of rights that it seeks todeliver to beneficiaries.

186 The overall literacy rate in 2001 was 53.7%, whereas that of Dalits was 33.8% in 2001. In the 2006-2008 period theliteracy rate for Dalit females was 34.8% and for Dalit males was 59.9%. [Source: Nepal Human Development Report2009].187 According to the Dalit Caste Index of the National Dalit Commission, there are 20 different groups of Dalit castes fromHill Dalit to Terai Dalit. These populations suffer discrimination in all regions of Nepal—especially Dalit women.188 A larger portion of people are poor in the Mid-West development region by others: by caste and ethnic groups in theMid-Western region, poverty affected Dalits, Muslims and Hill Janajatis at a much higher rate (41% to 46%) than thenational average (31 %) and much higher than Newar and Brahman/Chetri (14% to 18% respectively). [Source: NepalHuman Development Report 2009].189 Only some 2.8% of the Tharu, 0.3% of the Tamang, 0.76% of the Rai, and 0.63% of the Magar Communities,respectively, have self operated land of more than 10 acres. Being landless, the vast indigenous majority therefore has noaccess to resources related to land ownership. About 15% of the hill Dalits and 44% of the Tarai Dalits are landless.Similarly, 54% of the Dalit population engages in agriculture activities, another 15.7%in services, and an additional 14.2% innon-farm casual farm labour and other low wage activities. [Source: A Study on Discriminatory Laws, Against women,Dalit, Ethnic Community, Religious Minority and Persons with Disabilities, FWLD, 2009, p50].190 See, in general, “Gender and Social Inclusion in Conflict Sensitive Development), USAID Nepal, 2010.191 Evaluation Mission interview with representative of Blue Diamond Society Nepal, 29 July 2010.192 The Supreme Court stated in its interviews with the Evaluation Mission that it is not satisfied with the current level ofdonor coordination and the level of information conveyed by UNDP/UNCT and other Donors to the judiciary. TheCourt feels that funds are being spent without a sufficient frequency of M&E and no proper reporting to the judiciary ofproject outputs and their impact. UNDP/UNCT should also more closely track the Courts own priorities as expressed inits strategic plans and annual reports.


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While UNDP support to justice providers (the “supply-side” of the justice equation) is crucial andshould continue—albeit in a more strategic form—overall, UNDP needs to focus less on thesupply side of access to justice and increase its focus on the demand side. UNDP shouldincorporate a legal empowerment/pro-poor agenda in all its A2J and human rights programming.

UNDP assistance 2001-2010 focused heavily upon the Supreme Court and District Courts, whileother important rule of law actors that were not targeted or were only minimally or tangentiallytargeted (i.e. bar association and police) for UNDP assistance 2001-2010.

UNDP’s programming 2001-2010 was largely relevant, but perhaps could have used differentpartners and a greater number of partners for implementation purposes. Overall, the programmecould have been much more robust. We have already noted some recommendations aboveregarding the individual projects. The Evaluation Missions observations and recommendationsfor UNDP CO, RR and synergies between A2J and Peace are noted in Section 6 et. seq. of thisreport.

UNDP must redouble its efforts in Nepal to ensure that CPAP Outcome 2.2. is fully achieved.The above assessment of UNDP performance 2001-2010 presents some common programmaticand strategic recommendations for access to justice, rule of law and human rights going forward.“The challenge is to make the entire rule of law system more robust and build people’sconfidence in the judiciary.”193

Future Directions for UNDP Rule of Law and Human Rights Programming in NepalThroughout this report the Evaluation Mission has identified many areas for improvement andrenewed engagement for UNDP in Nepal. Going forward into the second half of the CPAP2008-2012 and beyond, UNDP should make several strategic adjustments to its programming.

Although the Evaluation Mission has discussed areas for continued training for the Judiciary andcourts in Nepal, over the next two to five years, UNDP should begin to transition the SupremeCourt away from donor funded trainings, to the extent possible, and to a point where all trainingfor the Judiciary is be performed within the context and curriculum of the National JudicialTraining Academy. To the extent that UNDP continues funding training for the courts, UNDPshould focus on the District Courts, any new local/municipal courts formed as a result of a newConstitution in Nepal.

UNDP and other donors need to become much more strategic in their approach to programmingfor the Rule of Law, Access to Justice and Human Rights sectors. UNDP and Donors need todevelop broad Strategies for Rule of Law; Access to Justice (Community-based justice initiatives;mediation; legal empowerment of the poor); Human Rights (including all human rightscommissions in the country, not just NHRC as well as administrative agencies and line-Ministries); Administrative Law; Anti-Corruption; Anti-Discrimination and Legal Aid. AnyStrategy for Rule of Law that is developed should attempt to be more inclusive of Nepal’s otherrule of law actors (i.e. prosecutors; administrative officials who carry out and dispense rights toindividuals; CDOs, etc.).

In general, UNDP’s approach to programming should become much more robust and include notonly top-level ministries, but also administrative agencies and public administration (including

193 Evaluation Mission interview with Supreme Court Registrar of 27 July 2010.


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municipal-level administrations to the extent these exist in Nepal). UNDP should explore thenexus that public administration reform and administrative law and process have with thedelivery of rights, conflict prevention and recovery and transitional justice.

UNDP also needs to focus on the quasi-judicial authorities in Nepal (i.e. CDOs), not only interms of building their capacity to carry out their functions in a more responsible manner, but alsoholding the quasi-judicial authorities accountable for human rights violations.

UNDP should continue its support to alternative dispute resolution, including court-annexedmediation and community mediation in Nepal, but transition away from managing PLCs asUNICEF takes the lead in this sector in Nepal. UNDP should retain a role in the training ofPLCs.

Overall, UNDP needs to become more knowledge-based and less concerned with projectexecution. UNDP should also incorporate more political analysis and situation analysis in itsprogramming. UNDP can also do a better job of assessing the burdens placed upon GoN throughits programming and via legislation that is proposed.

UNDP also needs to do a better job of utilizing its own in-house knowledge to inform itsprogramming (i.e. M&E conducted in the field and the expertise of its own Governance Unit’sRule of Law Programme, A2J Project and NHRC Project. Most all UNDP CO and project-levelstaff within A2J and Human Rights hold advanced law degrees and much better use could bemade of their substantive knowledge and expertise, in addition to project administration andexecution.

UNDP should also increase joint programming within 1-UN and ROLCRG. Paramount in suchcooperation should be the coordination of legislative drafting efforts. In general, UNDP shouldalign its entire country programme with the process of drafting a new Constitution for Nepal.

UNDP should adopt much more of a pro-poor/legal empowerment agenda to better advance theMDGs in Nepal as well as peace building, recovery and Transitional Justice. UNDP needs toincorporate livelihoods into its community justice outputs.

In terms of programme execution, UNDP should maintain a DEX modality for all TransitionalJustice components of the UN BCPR SPF as well as any other initiatives that have a highlysensitive nature.

Finally, UNDP needs to do a much better job of publicizing itself within Nepal. With thedeparture of UNMIN and the reduction in field presence of OHCHR, UNDP’s role within theUNCT and donor community


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12. Lessons Learned

Lessons Learned

When UNDP does not generate in-house statistical data on its programmes, it cannot meetthe needs of its target beneficiaries, make adjustments to programming and create a baseline for the future.

When UNDP does not programme within the context of Strategies, it risks having itsdevelopment contribution dissipate.

When UNDP does not hold its Government partners to minimal criteria for quality controlas a condition of NEX, programmes may not be sustainable.

When UNDP project staff does not make frequent visits to the field, UNDP risks becomingoverly dependent upon local CBOs for execution and verification of its programming andmay not have a clear measure of the impact of its programming on beneficiaries.

When UNDP exaggerates its accomplishments and is not self-critical, it risks becomingcomplacent and carrying-over outputs from one programming cycle to the next withoutinnovation.

When UNDP remains too focused on the execution of individual projects, instead ofgenerating true expertise and knowledge products, it risks damage to its reputation,marginalization and loss of its brand image.

When UNDP loses sight of its core constituencies and a legal empowerment agenda, it riskslosing its comparative advantage.

When UNDP/UNCT does not coordinate its various legislative drafting initiatives it risksproducing pieces of legislation that are not harmonized or connected to each other and thatin fact may violate the “do no harm” principal of development.

When UNDP does not link its community-based justice initiatives to livelihoods, it risksexploiting the very beneficiaries that it seeks to empower.

When UNDP does not reinforce the scope of authority of its PLCs, it risks violating dueprocess rights of the accused.

When UNDP does not programme with a wide enough spectrum of partners, it risks missingopportunities to empower organizations who represent disadvantaged groups.

When UNDP does not advocate for change, it risks that the status quo ante will remainstatic.


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13. Recommendations

A. Strategic Recommendations

Building Strategies for Rule of Law, A2J and Human RightsR-1. The Evaluation Mission recommends that UNDP become more strategic in its approach toprogramming for the Rule of Law, Access to Justice and Human Rights sectors. UNDP and Donorsneed to develop broad Strategies for Rule of Law; Access to Justice (Community-based justiceinitiatives; mediation; legal empowerment of the poor); Human Rights (including all human rightscommissions in the country, not just NHRC as well as administrative agencies and line-Ministries);Administrative Law; Anti-Corruption; Anti-Discrimination and Legal Aid. Any Strategy for Ruleof Law that is developed should attempt to be more inclusive of Nepal’s other rule of law actors (i.e.prosecutors; administrative officials who carry out and dispense rights to individuals; CDOs, etc.).

R-2. The Evaluation Mission recommends that in general, UNDP’s approach to programming shouldbecome much more robust and include not only top-level ministries, but also administrative agenciesand public administration (including municipal-level administrations to the extent these exist inNepal). UNDP should explore the nexus that public administration reform and administrative lawand process have with the delivery of rights, conflict prevention and recovery and transitionaljustice.

Realizing synergies between UNDP A2J and Peace building and supporting the process ofdrafting a new Constitution for NepalR-3. The Evaluation Mission recommends that UNDP A2J generate “white papers”, analysis andknowledge with regard the judicial system and fundamental rights for CA Committee members-especially with regard to the CA Committee on the Judiciary and the CA Committee forFundamental Rights and Directive reports. Such knowledge products are relatively low cost innature and may distributed to a very wide audience in Nepal.

R-4. The Evaluation Mission recommends that UNDP strive to anticipate the multitude of issues thatwill arise when and if a new Constitution is adopted. UNDP may wish to further amend projectdocuments to include additional implementing partners for its programming given the emphasisupon Transitional Justice, gender and peace in the revised A2J document and BCPR SPF.

R-5. The Evaluation Mission recommends that UNDP maintain a DEX modality for all transitionaljustice components of the UN BCPR SPF as well as any other initiatives of a highly sensitive naturerelated to transitional justice.

Adopting a legal empowerment and pro-poor approach to programming to support the MDGsR-6. The Evaluation Team recommends that UNCT and UNDP maximize advancement of the MDGsin Nepal—particularly MDG-1, MDG-3 by incorporating a Legal Empowerment of the Poorapproach in its programming; continuing to address gender equality and gender justice; andpursuing its transitional justice initiatives. Joint UNDP Environment and Rule of Law technicalsupport to the Government of Nepal to meet its international environmental treaty reportingrequirements and passing domestic legislation and strategies related to the environment couldadvance MDG-7.


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Facilitating “1-UN” cooperation at the UNCT for Rule of Law, A2J and Human RightsR-7. The Evaluation Team strongly recommends that in order to address a lack of coordination asregards legislative drafting and improve the overall technical quality, harmonization and complianceof draft legislation the RCO consider creating a technical advisor position in the form of a “ChiefLegal Advisor” who will review, coordinate and approve any and all legislative drafting initiativesundertaken by any member of the UNCT Nepal or their projects at a central level, drawing uponU.N. and partner resources where needed for further technical advice.

R-8. The Evaluation Team recommends that UNDP BCPR explore possibilities for jointprogramming between UNDP and other members of the UNCT under UNPFN under ROLCRG.UNDP should ensure the highest level of Donor coordination possible in this regard.

R-9. The Evaluation Mission recommends that ROLCRG activities in Nepal attempt to address boththe “supply-side” and the “demand-side” of the rule of law and access to justice equation. TheEvaluation Mission suggest the following possible areas of engagement for ROLCRG in Nepal: 1)coordinating the establishment of a centralized mechanism in the RCO for all UNCT sponsoredlegislative drafting initiatives; 2) coordinating efforts among UNCT to remove “roadblocks” to theimplementation of NHRC recommendations (and harmonizing laws and capacitating GoN for theTRC and CoED); 3) coordinating programming that addresses the quasi-judicial authorities in Nepal(i.e. CDOs and their power to arrest, detain and adjudicate); 4) coordinating over-arching Strategiesfor the Rule of Law, Anti-Corruption and Human Rights in Nepal; and 5) coordinating training andprogramming directed towards community-based justice initiatives and peace committees in Nepal.

R-10. The Evaluation Mission cautions UNDP/ROLCRG to be extremely cognizant of the potentialburden that will be imposed—both budgetary and administratively—upon Nepal’s institutions (i.e.OAG; Supreme Court and District Courts, etc.) in the event that a large scale witness protectioninitiative is undertaken.

Increasing the sophistication of UNDP’s approach by incorporating more political analysis anddetail in planningR-11. The Evaluation Mission recommends that going forward, UNDP A2J and UNCT reassess itscurrent programming in light of current history and political analysis—especially taking intoaccount patterns and networks of political influence, corruption and crime operative in the Terai.

R-12. The Evaluation Mission recommends that UNDP generate enhanced statistics on women andDalits so that baselines and disaggregated data are obtained for these populations. UNDP shouldincorporate such data in evidenced-based policymaking and bring a higher level of in-house technicalexpertise and policy advice to its initiatives.

Restructuring UNDP Nepal to become more of a knowledge-based organizationR-13. The Evaluation Mission recommends that whatever structure the CO chooses to adopt for itsfuture rule of law, access to justice and human rights programming, that it create a mechanismwithin the CO to harmonize all legislative drafting activities as well as stakeholder programming andpublic awareness associated with such strategies. Any new structure should also facilitate thecreation of strategic knowledge and policy in an effort to transition UNDP Nepal more from aproject-based CO to a policy-based CO. Any new structure should emphasize pro-poor, legalempowerment, women and minorities and youth at all levels of programming.


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R-14. The Evaluation Mission recommends the UNDP facilitate CO-level technical advice andsupport that can play a valuable role in formulation of broad policy and strategies, the creation ofknowledge products in the rule of law and human rights sectors. UNDP CO needs to become moreknowledge-based and strategic in general for rule of law, access to justice and human rights, ratherthan focused on individual projects.

R-15. The Evaluation Mission recommends that UNDP become more knowledge-based and lessconcerned with project execution. UNDP should also incorporate more political analysis andsituation analysis in its programming. UNDP also do a better job of assessing the burdens placedupon GoN through its programming and via legislation that is proposed.

R-16. The Evaluation Mission recommends that UNDP do a better job of utilizing its own in-houseknowledge to inform its programming (i.e. M&E conducted in the field and the expertise of its ownGovernance Unit’s Rule of Law Programme, A2J Project and NHRC Project). Most all UNDP COand project-level staff within A2J and Human Rights hold advanced law degrees and much betteruse could be made of their substantive knowledge and expertise, in addition to project administrationand execution.

Increasing UNDP’s field presence in Nepal in support of Transitional Justice and PeaceR-17. The Evaluation Mission recommends that given the large scope of the Transitional Justiceplatform pursuant to the execution of the UNDP-BCPR SPF and the revised A2J project document,UNDP CO should explore the possibility of opening one or more sub-offices at designated locations inthe field (i.e. the Terai or hill districts) for A2J/Transitional Justice/Peace and legal empowermentactivities.

Adjusting programming based upon M&E dataR-18. The Evaluation Team makes the strong recommendation that the CO require the projects toadjust programming based upon the observations and results of CO M&E. This can significantlyimpact upon the achievement of the Outcome and should not be an option, especially given the greatamount of resources invested by UNDP to create a field monitoring presence.

R-19. The Evaluation Team recommends that the CO consider revising its M&E Strategy so as tomake a distinction for transitional justice components within the country programme that mayrequire an increased percentage of time spent in the field by Kathmandu-based project managers, aswell as an increased frequency of monitoring conducted by project managers and including numberof days spent in the field as part of their performance review.

UNDP’s relations with its Donors and PartnersR-20. The Evaluation Team recommends that the CO take a “customer service” approach towardsits donors and ensure that donors are not carrying out functions that UNDP has agreed to do as partof project execution.


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B. Programmatic Recommendations

Capacity building and training of the Nepali JudiciaryR-21. The Evaluation Mission recommends that UNDP remain free to support special trainings andforum for knowledge sharing among the judiciary, but ensure that all future training initiativeswherever possible for the judiciary going forward should be done in close coordination with theNational Judicial Academy and/or Judicial Services Commission according to strategic plans,training schedules and human resource policies of those institutions—however UNDP should not bewholly bound to the institutional interests of these organizations.

R-22. Evaluation Mission recommends that over the next two to five years, UNDP begin to transitionthe Supreme Court away from donor funded trainings, to the extent possible, and to a point where alltraining for the Judiciary is be performed within the context and curriculum of the National JudicialTraining Academy. To the extent that UNDP continues funding training for the courts, UNDPshould focus on the District Courts, any new local/municipal courts formed as a result of a newConstitution in Nepal.

R-23. The Evaluation Mission recommends that UNDP continue to target junior members of thejudiciary and court staff for training. UNDP should also support the Supreme Court to articulatemore transparent indicators for training and strengthen the ToT component to training. UNDPshould also include training for the judges and staff of specialized tribunals (i.e. AdministrativeTribunal).

R-24. The Evaluation Mission recommends that UNDP conduct specialized training for the CDOsand other quasi-judicial authorities in Nepal on human rights, rights of the accused and due process,police investigations and detention to acquaint the CDOs with international best practice andstandards as well as their obligations under the ICN. Additionally, UNDP should provide trainingfor CDOs on topics of domestic Nepali criminal law and procedure. Such programmes should becoordinated with and include the participation of representatives from the NHRC, police and OAG.

R-25. The Evaluation Mission recommends that UNDP—in partnership with other Donors andpartners—support studies, round tables, white papers, etc. to explore topics such as: the exercise ofthe Supreme Court’s writ jurisdiction; citation to human rights treaties in its decisions; equality ofinterpretation and application of the law, especially in cases involving women and minorities; the roleof women in the judiciary and legal profession; and judicial corruption and independence of thejudiciary.

R-26. The Evaluation Mission recommends that UNDP support the Judicial Council in the reformof its human resources and transfer polices and facilitate coordination between the Judicial Counciland Judicial Academy regarding training, to the extent possible, in an effort to better match judges’skills to the courts and benches to which they are assigned.

R-27. The Evaluation Mission recommends that UNDP make in-country training the default positionfor any future training of the judiciary—any overseas training or study visits should require pre-approval of the UNDP CO before commitments are made to stakeholders and partners and only beundertaken infrequently.

R-28. The Evaluation Mission recommends that UNDP continue to provide resource materials andknowledge products to the judiciary on best practices and human rights. UNDP should develop bestpractices guides; bench books for the judiciary; rule of law indices and other publications andknowledge products and target the quasi-judicial authorities in Nepal. UNDP with other donors


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should also support the Supreme Court to enhance its website and publish in electronic form its pastdecisions.

R-29. The Evaluation Mission recommends that UNDP, as part of a Strategy should support the Barof Nepal to create a system of Continuing Legal Education (CLE) in Nepal. There is currently nomechanism for CLE in Nepal.

Court reform and restructuring in NepalR-30. The Evaluation Mission recommends that UNDP A2J, in close cooperation with CCD,support the Supreme Court to adapt to whatever judicial and court structure is ultimately mandatedin a new Constitution for Nepal. UNDP could in the meantime anticipate and to a limited extentsupport the Supreme Court to prepare for the eventuality of change, by supplying the Court withknowledge in the form of information, models, best practices and case studies of other countries thathave transitioned from centralized to federal judicial structures. In doing so, UNDP must be carefulto remain politically neutral.

R-31. The Evaluation Mission recommends that UNDP support the Supreme Court the achievementof the Strategic Interventions mentioned in its 2nd Five-Year Strategic Plan and otherrecommendations of its recent “Judicial Mapping and Judicial Assessment Report”. UNDP shouldfocus on the following key priorities mentioned in the mapping report: enhancing its humanresources and a merit-based system of appointments and promotion; establishing a Judicial ConductCommission; continuing to support the district courts to improve case docketing; record keeping andcase statistics (i.e. with hands on training, not simply more IT); removing the power of the CDOs toconvict and imprison offenders; reforming and building the capacity of the OAG; publishingelectronic versions of the laws of Nepal; supporting mobile courts in Nepal; reforming the legalprofession and establishing CLE; building a comprehensive national legal aid scheme; continuing toreform the lottery system of case allocation in the district courts and reforming court fee structuresto ensure greater access to justice for the poor.

R-32. The Evaluation Mission recommends that UNDP continue to support the Supreme Court toenhance access to justice for women and members of minority groups at all courts in Nepal, bysupporting the new “Fast Track” courts; improving key signage at the courts as well as instructionsand forms to contain both Nepalese and local languages where necessary; amending court rules ofprocedure to provide waiver of fees for indigents; and enhancing the overall “customer service” ofthe courts by streamlining processes for obtaining vital records, court documents and land titles fromboth courts and related administrative agencies (i.e. land offices).

R-33. The Evaluation Mission recommends that UNDP support the Supreme Court to continue toenhance the criminal justice functions of all District Courts in Nepal. UNDP should support theSupreme Court to undertake a mapping exercise to determine how all elements of the criminaljustice system (including prosecutors, prison staff, police and CDOs and other quasi-judicial bodies)interface with each other and the District Courts. UNDP should also support the Supreme Court tocontinue to explore ways to reduce the amount of time spent by District Court judges on judicialcustody issues.

R-34. The Evaluation Mission recommends that UNDP in close consultation with other donorssupport an anti-corruption initiative for the judiciary as part of a strategic and robust anti-corruption initiative for Nepal. Such an anti-corruption initiative should include representativesfrom all tiers of Nepal’s Justice System (Executive, Judiciary and Legislative)(see diagram “Nepal’sJustice System” supra); with OAG and the Commission for the Investigation of Abuse of Authority,playing lead roles, as well as Ministries responsible for GoN procurement, accounting, budgets andfinance. CDOs and VDCs should also be heavily targeted. In this regard, the Evaluation Missiondirects UNDP Nepal to reference the successful “anti corruption” initiative recently implemented by


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UNDP Serbia as a possible model (albeit from a vastly different political context). District Courtslocated in the Terai should be especially targeted by such an initiative.

R-35. The Evaluation Mission recommends that UNDP, in partnership with UNICEF, supportdistrict courts and police located in the Terai to improve processes related to juvenile justice.

Supporting court-annexed mediation in NepalR-36. The Evaluation Mission recommends that UNDP continue to support Court-referred/court-annexed mediation via the provision of knowledge products, technical advice and training.

R-37. The Evaluation Mission recommends that UNDP determine the future of the MediationCentre of Nepal—specifically whether it can be “re-tooled” as a community mediation centre.UNDP should consider providing additional funding to the Mediation Centre of Nepal to enable it tosuccessfully transition to a self-sustaining model and remain as a viable community mediationresource for the residents of Kathmandu and its environs. UNDP should render technical adviceand support to the Mediation Centre of Nepal on incentivizing its mediations through the collectionof fees and growing its base of financial support to enable it to become self-financing.

R-38. The Evaluation Mission recommends that UNDP support the extension of legalized mediationat the level of the CDO offices, other quasi-judicial authorities, the Land Reform offices and otheradministrative agencies that could benefit from implementing mediation.

R-39. The Evaluation Mission recommends that UNDP fully map out the NBA’s continued role inthe process of mediation.

R-40. The Evaluation Mission recommends that UNDP assist CBOs active in mediation for the poor,women, Dalits, Tharus, Thakalis, Sherpas, etc.) to develop programmes and training manuals.

R-41. The Evaluation Mission recommends that UNDP undertake customary law ascertainmentresearch to guide the courts and particularly the quasi-judicial authorities in the customary laws ofNepal’s various regions and traditional justice mechanisms.

Designing a system to deliver comprehensive Legal Aid in NepalR-42. The Evaluation Mission recommends that UNDP, as part of a Strategy, support the passage ofa revised “law on Legal aid” and develop a plan for a comprehensive system of legal aid in Nepal inconjunction with all relevant stakeholders (judiciary, prosecutors, prisons, and police, barassociations, law faculties, as well as CBOs that deliver legal aid to citizens in Nepal). The Strategyshould include cost and impact analysis and budgetary mapping. A principal component of theStrategy should be the establishment of a central “clearing house” for legal aid that will assign clientsto various legal aid providers. A comprehensive system of legal aid is something that governmentitself should fund, but in the absence of full funding, government should at the very least fulfil acoordinating mechanism and assign individual cases to government legal aid, bar associations, CBOsand NGOs.

R-43. The Evaluation Mission recommends that UNDP support the development of a central legalaid “clearing house” to coordinate all the various stakeholders who provide legal aid in Nepal, ratherthan restricting its legal aid activities to the on establishment of a few legal aid desks in the districtssince this will never be effective to bring national level impact. UNDP should work with all relevantStakeholders in Nepal to link the legal aid system with paralegals in the community.


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R-44. The Evaluation Mission recommends that UNDP support the creation of a National Paralegaland Mediator Training Facility for paralegals and mediators so as to harmonize trainings.

R-45. The Evaluation Mission recommends that UNDP publicize the results of its forthcomingresearch on the legal Aid system in Nepal and that the research fully analyze the strengths andweaknesses of the current system and map out possible future directions. The Evaluation Missionrecommends that UNDP use the experiences of Legal Aid Desks in police offices for evidence basedpolicy advocacy for comprehensive and accessible legal aid for the women and excluded group in thecommunity.

R-46. The Evaluation Mission recommends that specific guidelines should be provided by A2Jproject with indicating working modalities and procedures to be followed by lawyers at Legal AidDesks and procedures to be followed by the police.

R-47. The Evaluation Mission recommends that UNDP support the establishment of a referralmechanism for legal aid lawyers to refer cases to trained social workers for supplementarypsychosocial counselling when appropriate (i.e. cases of SGBV, etc.).

R-48. The Evaluation Mission recommends that UNDP assist GoN to create fund and rehabilitationcentre in Nepal for the protection of women victims of SGBV to protect them against domesticviolence as prescribed by Domestic Violence Act.

Supporting Community-based mediation in NepalR-49. The Evaluation Mission recommends that UNDP increase its level of in-house statistical dataregarding mediation disaggregated according to women, cast and ethnic groups.

R-50. The Evaluation Mission recommends that UNDP and other Donors explore mechanisms toincentivize mediation through increased synergies with UNDP Livelihoods and other initiatives thatseek to empower the poor and minorities in Nepal.

R-51. The Evaluation Mission recommends that UNDP conduct ascertainment and/or compilationof precedents of traditional and customary mechanisms of dispute resolution in Nepal (i.e. such as theTharu Community “BhalBansha” or “Badaghar” practice) in an effort to determine howcommunity-based mediation initiatives can take account of such practices.

R-52. The Evaluation Mission recommends that UNDP build upon its community-based mediationinitiatives and develops a plan to expand the programme to all districts in Nepal as part of a strategicrollout within a well-coordinated Strategy to be formulated by UNDP and all Donors who arecurrently active in this sector.

R-53. The Evaluation Mission recommends the UNDP continue to support public awarenesscampaigns and publicize community-based mediation; as well as supplying knowledge products andadditional trainings to community mediators. Trainings should be highly nuanced to reflectemergent needs of stakeholders within the political context of Nepal.

R-54. The Evaluation Mission recommends that UNDP avail itself of political analysis in itsprogramming to more closely align its community-based mediation with the issues currently facingthe population of the Terai (i.e. Madhesi movement, youth, land disputes, etc.).

R-55. The Evaluation Mission recommends that Local Peace Committees should be capacitated forcommunity-based mediation and human rights outreach.


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Transitioning out of Paralegal Committees, while continuing to support training for PLCsR-56. The Evaluation Mission recommends that UNDP carefully evaluate the possibility of“handing-off” its existing PLCs to UNICEF. This recommendation comes with the strong caveat,however, that as part of a “hand-off” UNICEF Nepal should agree to revise its approach, trainingand operations and training manuals to include issues that are not currently covered by itscurriculum such as land rights, basic contracts and property issues.

R-57. The Evaluation Mission recommends that UNDP/UNICEF conduct a mapping of PLCs to takeaccount of political analysis and include impact analysis for the intervention (i.e. the “costs” incurredto the PLC members themselves as a result of participating in the initiative). Given the politicalcontext of the Terai, UNDP/UNICEF need to consider including some components for men and youthin its initiative. A strong livelihoods component should also be included.

R-58. The Evaluation Mission is also concerned that the paralegals are at this point in timeexclusively female. In the interest of gender equality, we recommend that UNDP/UNICEF includesome men included in the initiative if possible.

R-59. The Evaluation Mission makes the strong recommendation that UNDP/UNICEF trainingmaterials be revised and updated to include information on the actual judicial and administrativeprocesses and procedures required for the attainment of rights in Nepal.

R-60. The Evaluation Team submits that from the perspective of 1-UN and the UNCT, the RRshould encourage UNICEF Nepal to align its programming to the extent possible with other UNCTmembers—and especially UNDP if a “hand-off” of UNDP paralegals is scheduled.

R-61. The Evaluation Mission recommends that UNDP continue to play a role with providingstatistics, documenting synergies and promoting them between UNICEF paralegals and UNDPcommunity-based justice initiatives (and also A2J with the formal legal system and/or court-annexedmediation).

R-62. The Evaluation Mission recommends that UNDP continue to encourage DRGs to providemuch needed office space and limited funding for the PLCs.

R-63. The Evaluation Mission recommends that UNDP reinforce trainings received to date by thePLCs in order to emphasize and make clear the scope of their authority—especially with regard tolow-level mediation and dispute resolution to make sure that it abides by standards of fairness anddue process. PLCs must not exceed their authority or violate the rights of the accused.


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Support to the capacity building and training of NHRC and other human rights bodies in NepalR-64. The Evaluation Mission recommends that UNDP support a comprehensive study andmapping of the barriers and “roadblocks” to implementation of NHRC recommendations to befollowed-up by a high-profile conference with heavy media participation to discuss the results of thestudy and thereafter generate a publication of the transcript of the conference to all Stakeholders inNepal.

R-65. The Evaluation Mission recommends that UNDP in conjunction with all Donors articulate astrategy of legislative reform and harmonization necessary in order to eliminate the existingsubstantive and procedural legal provisions and regulations that hinder the enforcement of NHRCrecommendations by such entities as the Government Attorney’s office, line-Ministries, police andNepal Army. UNDP in partnership with the Office of the Prime Minister Council of Ministersshould sponsor a series of routable discussions to try to move this process forward. New proceduralmechanisms should be explored to accomplish the goal of obtaining prosecutions of perpetrators.

R-66. The Evaluation Mission recommends that UNDP capacitate NHRC to improve the overallquality of its recommendations and publish them simultaneously on NHRC website on the same daythat they are transmitted to the Office of the Prime Minister Council of Ministers.

R-67. The Evaluation Mission recommends that UNDP and other Donors undertake a review of theTRC and CoED draft legislation to develop an implementation plan and necessary budgets forcompensating witnesses, conducting investigations and carrying-out OAG prosecutions. UNDPshould also review all other related legislation to ensure that it is harmonized to facilitate the work ofTRC and CoED and to eliminate any potential conflict of interest between the respective mandates ofNHRC, TRC and CoED. UNDP in support of OHCHR should advocate for the removal oflanguage from the TRC bill that is not in conformity with Nepal’s international human rightsobligations. UNDP should continue to promote dialogue between TRC, CoED and OAG as theinstitutions develop and commence their work.

R-68. The Evaluation Mission recommends that UNDP support NHRC to publish a “blacklist” ofalleged perpetrators in Nepal.

R-69. The Evaluation Mission recommends that UNDP/OHCHR support NHRC to target the CDOsand many other quasi-judicial actors in Nepal as potential points of human rights violations andinvestigate their activities. UNDP should support NHRC to conduct a study of the CDOs and otherquasi-judicial actors and their impact on human rights in Nepal—especially violations of proceduraldue process rights.

R-70. The Evaluation Mission recommends that UNDP support NHRC to partner with the NationalDalit Commission and National Women’s Commission to the extent permissible within its mandateon issues related to Dalit and women.

R-71. The Evaluation Mission recommends that UNDP should include NHRC in a Strategy for ruleof law, access to justice and human rights in Nepal.

R-72. The Evaluation Mission recommends that UNDP support the development of an umbrella law“on the prohibition of discrimination” for Nepal and a package of suggested amendments to existinglegislation.

R-73. The Evaluation Mission recommends that UNDP support a consultant to provideorganizational management advice to the NHRC and explore measures to increase the cohesivenessof NHRC Commissioners and staff and repair the basic structural “cracks” in the NHRC at present.


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R-74. The Evaluation Mission recommends that UNDP support the NHRC’s suo motto powers andfunctions to enable the NHRC to investigate directly of its own accord perceived violations of humanrights in Nepal.

R-75. The Evaluation Mission recommends that UNDP continue to strengthen its support to NHRCto promote dialogue on Economic Social and Cultural Rights in Nepal and to conduct ascertainmentresearch/mapping of administrative agency procedures and processes in Nepal to ensure the deliveryof Economic Social and Cultural Rights to Nepalese citizens.

R-76. The Evaluation Mission recommends that UNDP support an NHRC study of the impact of thequasi-judicial authorities in Nepal upon human rights and identify human rights violations by CDOs,police and customs authorities at the local level.

R-77. The Evaluation Mission recommends that UNDP support NHRC to undertake initiatives tomap out the nexus between activities of criminal gangs, political parties and human rights in Nepal.UNDP and NHRC should engage directly with the senior leadership of the political parties in regardto human rights to the extent possible.

R-78. The Evaluation Mission recommends that UNDP support NHRC to adopt a more balancedallocation of its resources and include more emphasis going forward on socio-economic and culturalrights in Nepal.

R-79. The Evaluation Mission recommends that UNDP support NHRC to increase the percentage offemale staff members at the regional level and include minorities such as Dalit on its staff. TheEvaluation Mission further recommends that UNDP support NHRC to establish points of liaisonbetween NHRC and the National Dalit Commission and National Women’s Commission in Nepalthat would facilitate dialogue between the organizations and coordinate human rights advocacy andoutreach.

R-80. The Evaluation Mission encourages UNDP to explore creative mechanisms for publicawareness raising on human rights, SGBV, most vulnerable groups, the peace process, A2J and thenew Constitution (if and when it is adopted). New opportunities might exist for UNDP in this regardwithin a Transitional Justice/Conflict Prevention/Early Recovery framework—possibly giving rise tonew types of community-based initiatives in the form of “information officers” or “peace workers” atthe local level—especially in light of UNMIN and OHCHR loss of field offices (or mandate).

R-81. The Evaluation Mission recommends that UNDP provide financial and technical support toNHRC concerning its human resources functions and to accommodate the orientation of new staffmembers that expected to be hired by NHRC in 2011. UNDP should also assist NHRC to documentits institutional knowledge and procedures and to prepare briefing books and training modules fornew staff.

R-82. The Evaluation Mission recommends that, after NHRC has resolved its current staffingissues, UNDP and Donors provide additional all Terrain vehicles in selected NHRC field offices toenable field staff to access sites and provide more “coverage” in their regions.

R-83. The Evaluation Mission recommends that UNDP support the empowerment and capacities ofNGOs and CBOs in Nepal to support the NHRC in its work—especially NGOs and CBOs that dealwith Dalit and Women’s rights.


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R-84. The Evaluation Mission recommends that UNDP support the NHRC to conduct a massivepublic awareness campaign about diversity and inclusion in Nepal—especially in the Terai.

R-85. The Evaluation Mission recommends that UNDP support the publication and widedissemination of NHRC recommendations to stakeholders. In addition, UNDP should continue tosupport studies and publications of NHRC.

R-86. The Evaluation Mission recommends that UNDP support NHRC to produce more studies andpublications about Dalit in Nepal (in partnership with the National Dalit Commission); rights ofwomen (in partnership with the National Women’s Commission) and rights of LGBT (in partnershipwith Donors and local CBOs in Nepal who are active in this field—such at the Blue DiamondSociety). UNDP should also support NHRC to print more copies of its studies in order to reach awider audience in Nepal than it currently does.

R-87. The Evaluation Mission recommends that UNDP explore ways to enable the NHRC to betterintegrate the UNDP NHRC project into its work. UNDP should prepare a fact sheet for NHRC staffmembers entitled, “UNDP support to NHRC 2001-2010 at a glance” highlighting UNDP’s support sothat all NHRC staff members are aware of the amount of resources that UNDP has provided. Suchrecommendation is made in order to counter a perceived low level of “ownership” of some NHRCstaff members of the UNDP project and its contribution.

R-88. The Evaluation Mission recommends that UNDP do a better job of availing itself of the in-house expertise that it has created at NHRC among this elite 2%. This component at NHRCpossesses advanced degrees and considers itself to be as or more qualified than UNDP project staff.

Support to the Legislative Process in NepalR-89. The Evaluation Mission recommends that UNDP assistance should become more strategic innature, focusing not only producing individual laws, but legislative packages that map out alllegislation, rules and policy in a sector necessary to accomplish reform. UNDP should also doimpact assessments, including cost analysis, to determine the projects costs and burdens that line-Ministries and implementing agencies can be expected to incur as a result of such legislations. Suchcomponents have not been a part of UNDP A2J legislative drafting initiatives to date.

R-90. The Evaluation Mission recommends that UNDP focus not only upon primary legislation, butalso upon secondary legislation and administrative agency/ministry adjudications, rules andregulations; taking account of such topics as: the scope of judicial review, acquiring and disclosinginformation, procedural due process, notice, evidence, separation of functions, executive oversight,etc.

R-91. The Evaluation mission recommends that going forward UNDP more closely coordinatelegislative drafting with the process of drafting a new Constitution for Nepal and the legislativedrafting initiatives of the UNCT and other Donors. UNDP should also prepare for the possibleeventuality of a new Constitution and period of “Constitutional Adhesion” that will require massivelegislative drafting/amendment and agency rulemaking that can be expected to occur in Nepal.


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R-92. The Evaluation Mission makes the strong recommendation that UNDP in close coordinationwith other members of the UNCT and Donors, support an updated legislative survey ofdiscriminatory legislation in Nepal with the participation of the NHRC, National Women’sCommission and the National Dalit Commission, as well as other stakeholders and representatives ofcivil society and that the results of this survey include clear indications to the MoLJ on whichprovisions of laws in Nepal need to be amended. The goal of the study should be to eliminatebarriers for access to justice for the poor, women and minorities and to eliminate discrimination andinsure both civil and political rights and economic and social rights. The results of the survey shouldpublished and widely disseminated to stakeholders and presented in an appropriate forum that isopen to the public.

R-93. The Evaluation Mission recommends that UNDP/OHCHR support NHRC to conduct a reviewof the TRC draft bill and draft bill on the Commission on Enforced Disappearances to eliminateconflicts in these various pieces of legislation and any possible duplication in the mandates of NHRC,TRC and CDP. UNDP should also support the Government Attorney’s office to carry out itsmandates and responsibilities stipulated in the TRC draft bill.

R-94. The Evaluation Mission recommends that UNDP support NHRC to increase its focus uponlegislation needed deliver Economic and Social Rights to Nepalese citizens. UNDP should cooperatewith the NDC and NWC on legislative initiatives. UNDP should support NHRC with legislativeinitiatives on ICCCPR, CEDAW/ICESR and CERD.

R-95. The Evaluation Mission recommends that UNDP support the NHRC to review and reformlegislation and rules governing administrative process in Nepal.

R-96. The Evaluation Mission recommends that UNDP further support civil society to exercise a“watch dog” function over the legislative drafting process and draft laws submitted for publiccomment. UNDP needs to explore ways to empower local civil society in Nepal to participate in thelaw making process, to introduce and institutionalize public hearings—not only at the level of theParliament itself, but at the level of administrative agency/line-Ministry rule making.

R-97. The Evaluation Mission recommends that UNDP, OHCHR and other donors continue toadvocate that Nepal meet minimum standards reflected in the international human rights treaties towhich it has acceded as well as the ICN and that the draft Civil Code, Code of Civil Procedure, PenalCode and Code of Criminal Procedure are in conformity with these international obligations.

R-98. The Evaluation Mission recommends that UNDP expand its efforts to document precedents oflocal and customary law in Nepal to guide policy makers, the judiciary, lawyers and community-based justice initiatives in making decisions and designing dispute resolution mechanisms.

R-99. The Evaluation Mission recommends that UNDP improve in-house documentation of itslegislative initiatives (i.e. sets of binders for each such initiative fully documenting all meetings, draftsand their various iterations, the composition of technical teams and their recommendations. Onelimitation of this Evaluation Mission was a lack of such documentation.


ANNEX Page 1

AUNDP UNDAF, CPAP and RRF Outcomes and outputs

2001-2006,7 and 2008-2012 programming periods

Selected UN/UNDP Governance Outcomes for Rule of Law, Justice and Human Rights 2002-2006, 2007

CCA 1999 UNDAF (2002-2006, 2007)(Key Outcomes and Indicators for justice and human rights)

CCF-2 (2002-2006, 2007) (Programmearea and outcomes for Rule of Law,Justice and Human Rights)

UNDP Nepal Governance: Rule ofLaw and Human Rights Projects(2001-2007)

Justice andHumanRightsPromotionandProtectionMechanismsStrengthened

B. Protectionand assistance tothe family,women andchildren

Strategy F. DemocraticGovernance

Strategy CCF-2 Democratic GovernanceOutcomes:

(f) Greater transparency,accountability and participationwithin the central machinery of theGovernment through enactment andimplementation of legislation andtreaties on human rights and throughjudicial and legal reform measures.

(g) Implementation of the nationalhuman rights action plan facilitated.

(c) Policy and legislative reformsaddressing discriminatory practicesagainst women in economic andsocial transactions, therebypromoting gender equality.

1) “Strengthening the Rule of LawProgramme” (ROL 2001-2005)

2) “Reform of the JudiciaryProgramme (RoJ: 2002-2007)

3) “Enhancing Access to Justicethrough Mediation in Court Case andStrengthened the CommunityMediation Practices (A2J Programme;2002-2007)(Phase 1)

4) “Capacity Development of NationalHuman Rights Commission” (Phase1)

5) “Support for Peace andDevelopment” (2001)(2002 extended)

B1. To increasegender equalityand equity byemphasizingspecialprotection, andassistancemeasures forwomen andchildren,including socialprotection forfemaleworkers,through follow-upto relevantglobalConferences,ConventionsandDeclarations.

Strategy 1.Facilitating the amendmentof discriminatory laws thatare in contravention withUN Conventions andTreaties and theformulation of gender re-distributive legislation andpolicies that address thespecific rights of the mostvulnerable within thefamily…advocate for theratification of the OptionalProtocol for CEDAW andthe implementation ofNational Action Planspertaining to BPFA,CEDAW and Trafficking ofWomen and Children aswell as the formulation of asecurity policy and lawstargeting the poorest andmost discriminated such aschildren, senior citizens,widows, Dalits, disabledand chronicallysick….building the capacityof law drafters, enforcersand implementers inapplying human rights andgender equity principles….

F1. To enablepublic and civilsocietyinstitutions,such asParliament,Executive, LocalGovernanceInstitutions,Judiciary,Human RightsCommission,civil societyorganizations,trade-unions andthe media tofunction in ademocratic,accountable andtransparentmanner.

Strategy 1. Strengthening thecapacity of civil and publicinstitutions in order to ensure avibrant and democratic civilsociety….facilitate exposure tovarious parliamentary systems,work jointly in building thecapacity of networking of localgovernance institutions and CSOsand will promote democracyparticipation, transparency andaccountability.

B2. To reduce theincidence of allforms of violence,

Strategy 2.Using social mobilization topromote rights-awareness

F2 To sensitisethe judicialsystems and

Strategy 2.Strengthening the judiciary,arbitration systems and


ANNEX Page 3

abuse andexploitation ofwomen andchildrenstarting withthe worstforms, such astrafficking,domesticviolence,sexualexploitation,and traditionalforms ofviolence.

and meaningfulparticipation of women andvulnerable groups ingovernance…..

enforcementauthorities to therights of poorpeople, workers,women, childrenand minorities.

enforcement authorities to ensurethe rule of law and the protectionof human rights….the rights ofpoor people, women, children andminorities.

B3. To createsocial protection

Strategy 3.Implementing programmes

F3. To have inplace laws and

Strategy 3.Supporting the development of


ANNEX Page 4

for workers andtheir families, poorwidows, batteredwomen and theirchildren, disabledand chronicallysick persons livingwith HIV/AIDS.

to eliminate the worstforms of violence, abuseand exploitation of womenand children….implement ajoint programme ontrafficking of women andchildren through a specialUN task force….advocatefor the ratification of the1951 Convention on theStatus of Refugees, theSAARC Convention onpreventing and combatingtrafficking in women andchildren for prostitution,the ILO Convention 182 onthe Immediate Abolitionand Elimination of theWorst Forms of ChildLabour and…promote vitalregistration and theamendment of theChildren’s Act to ensurethat every child isrecognised as a person andenjoys his/her full rights.

administrativeprocedures thatare consistentwith the civiland politicalrightsguaranteed inthe Constitutionand the ICCPRand thedevelopment ofaffirmativeaction policiesand programmesfor women,children, Dalitsand ethnicgroups

affirmative action policies andclose the gap between nationallegislation and internationalstandards….advocating thereduction of the bap betweencurrent legislation and standardsset in the Constitution andinternational legislation to whichNepal is a State Party…jointlypromote the development ofcomprehensive policies andprogrammes of action in respect ofDalits, kamaiyas and ethnic groupsthat focus on alleviating customaryfactors at community level andeliminating barriers to full andwider participating in communitylife.

UNDP Nepal 2008-2010Four interlinked UNDAF 2008-2010 outcomes have emerged as priorities for the UNCT’s supports to Nepal: A) National institutions, processes andinitiatives to consolidate peace are strengthened; B) Socially excluded and economically marginalized groups have increased access to improved quality basicservices; C) Sustainable livelihood opportunities are expanded, especially for socially excluded groups in conflict affected areas; D) Respect, promotion andprotection of human rights are strengthened for all, especially for women and the socially excluded, for sustained peace and inclusive development. CPAP2008-2010 also has four outcomes for UNDP contribution to UNCT . The ToR is concerned with CPAP Outcome 2.2. “Responsive and accessible justicesystems to promote gender equality, social inclusion and the rule of law, including formal and informal processes.Four UNDAF 2008-2010 Crosscutting issues: Peace Building; Human Rights, Gender and Social Inclusion; and Governance.Plus support the achievement of MDG 1, MDG 3Note: Preparations for the UNDAF began in September 2006 when the UNCT initiated discussions on potential key areas for development cooperation insupport of national priorities and global goals. A Steering Committee was established to discuss these proposed areas for cooperation and to guide the UNDAFprocess. The Steering Committee wasco-chaired by the National Planning Commission (NPC) and the UN, and comprised representatives from the line ministries, ILO UNDP, UNFPA, UNICEFand WFP. UN agencies carry out activities in all 75 districts and have 26 field offices and 6 regional hubs. [key UNDP partners = UNMIN + OHCHR]UNDAFOutcome/Output

CPAP 2008-2010 Outcomes, Outputsand Indicators

CPAP 2008-2010M&E Baselines

CPAP 2008-2010M&E Targets

UNDP Nepal Governance: Rule ofLaw and Human Rights Projects2008-2010

UNDAFOutcome D:Respect,promotion andprotection ofhumanrightsstrengthenedforall, especiallywomen and

CPAP 2008-2010 Outcome 2.2.Responsive and accessible justice systems topromote gender equality, social inclusion andthe rule of law, including formal andinformal processes

Outcome Indicators:Selected existing discriminatory laws arereviewed and amendedRatio of human rights cases resolved out of thetotal no. of cases submitted to NHRC

*176 Discriminatory legalprovisions (FWLD report2006)

*0.65% (2006) ratio ofcases investigated out oftotal received: 2200/7000(31%) % recommendedout of total investigated:147/2200 (6.7%)

*20 discriminatory laws(2010)

*80 cases recommended foraction per year

“Enhancing Access to Justice ThroughLegal and Judicial Reform” (so-called“new” A2J Project), later amended with anew title, “_____” to include transitionaljustice and peace components per theUNDP-BCPR Strategic PartnershipFramework.

“Strengthening the Capacity of theNational Human Rights Commission”


ANNEX Page 6

the sociallyexcluded,for sustainedpeace andinclusivedevelopment.

CPAP Output 2.2.1. Pilot court modelsgraduated and ready for replication, andmediation system strengthened for enhancedaccess to justice for women and excludedgroups.Output 2.2.1 Indicators#of backlog cases in the pilot courts# of months from filing to court decision in civilcases# of months from filing to court decision incriminal cases% of disputes solved by paralegal committees% of total cases submitted to paralegalcommittees submitted by women% of total cases submitted to paralegalcommittees submitted by Dalits% of cases submitted by Dalits solved by theparalegal committees

*12100 backlog cases inpilot courts (2007);disposal rate of 52.7%

*21 months from filingcourt cases in civil cases(2006)

*14 months (whereindividual is aplaintiff)(2006)

* baselines for paralegalcommittees to beestablished by LGDP in2008

*7865 cases; 65%

*12 months (2010)

*10 months (2010)

*90% of disputes solved byparalegal committees (2010)*60% total cases submitted toparalegal committees bywomen (2010)*20% of total cases submittedto paralegal committees thatare submitted by Dalits (2010)*90% of cases submitted byDalits solved (2010)

“Enhancing Access to Justice ThroughLegal and Judicial Reform” (so-called“new” A2J Project), later amended with anew title, “_____” to include transitionaljustice and peace components per theUNDP-BCPR Strategic PartnershipFramework.

CPAP Output 2.2.2. NHRC capacitystrengthened in monitoring, investigation,documentation and reporting of humanrights violations

CPAP Output 2.2.2. Indicators# of complaints of human rights violationsinvestigated# of recommendations submitted to theGovernment# of reports published by the NHRC onmonitoring and investigations# of discriminatory laws reviewed by the NHRCon human rights grounds and recommendationsfor amendment proposed# of public hearings organized by the NHRC ondiscriminatory laws and on emerging issues

*859 complaints of humanrights violationsinvestigated (2007)*53 recommendationssubmitted to theGovernment (2002-2007)13 submitted in 2007*5 reports published byNHRC on monitoring andinvestigations of ceasefireand CPA (2007)*NHRC reviewed 5discriminatory laws in linewith InternationalConventions in 2007.Four security-related lawswere reviewed in 2007.*No public hearings held

2200 (2008-2010)

*60 recommendationssubmitted to the Government(2008-2010)

*18 reports published byNHRC on monitoring andinvestigations (2010)

*20 discriminatory lawsreviewed (2008-2010)

* 10 public hearings (2008-2010)

“Strengthening the Capacity of theNational Human Rights Commission”

CPAP Output 2.2.3 Selected existing lawsreviewed and amendments drafted and newlegislation drafted as required by Nepal’streaty obligations and other internationalhuman rights standards

*n/a *8 revisions and newlegislations drafted

“Enhancing Access to Justice ThroughLegal and Judicial Reform” (so-called“new” A2J Project), amended to includetransitional justice and peace componentsper the UNDP-BCPR Strategic


ANNEX Page 7

Output 2.2.3. Indicators# of revisions and new legislations drafted# of discriminatory laws amended or abolished

Partnership Framework. +“Strengthening the Capacity of theNational Human Rights Commission”

Table 1.2. UNDP Governance Unit Projects in Rule of Law, Justice and Human Rights under CCF-2programming period 2002-2006, 2007 (sources: UNDP project documents and completion reports)Project Name Dates Key Partners NEX/

DEXTotal fundsbudgeted

Notes

“Strengthening the Rule of LawProgramme” (ROL)

2000-2002,extendedto 2006

Ministry of Law, Justiceand ParliamentaryAffairs (MoLJP) andSupreme Court (SCt)

NEX 860,500 Project“closed” in2005-remainingactivitiesfolded intoRoJ project

“Reform of the JudiciaryProgramme” (RoJ)

2001-2002 MoLJP and SCt. NEX 1,553,651

“Enhancing Access to Justicethrough Mediation in Court Caseand Strengthened the CommunityMediation Practices (A2JProgramme;)(Phases I and II,with extension)

2002-20022003-20062007

(Supreme Court) DEXDEXDEX

150,0001,145,393no additional

Budget costsavings of231,111from 2003-2006 periodused for2007extension.(Actualprojectimplementationoverlappedinto 2008)

“Capacity Development ofNational Human RightsCommission”

2002-2007 NHRC, (UNOPS),OHCHR

NEX 2,442,749* *onemilliondollars ofthis totalwas UNDPTRAC

“Support for Peace andDevelopment” (extended)

2001-2002 UNDP + 13 civil societyorganizations

DEX(with 13civilsocietyorganizations)

Norway, U.K.,Canada,Switzerland,DenmarkGermany andFinland Total :US$2,681,092*

*UNDP-BCPRcontributedandadditionalUS$230,000 forbridgingphase in2005.

Support to “National HumanRights Action Plan”

2002-2004 Ministry of Finance NEX 190,280* *UNDP’scontributionto MoFdonorfunding“basket”was $98,630

“Mainstreaming Gender EquityProgramme” (MGEP)

1998-2006 [insert]


ANNEX Page 9

o Reform of the Judiciary Programme (RoJ; 2002-2006, 2007 (Components I and II) (NEP/00/012) - The RoJProgramme focused on improved and closer access to justice by people by enhancing the efficiency ofjustice delivery and providing justice seekers qualitative, speedy and inexpensive justice through theoperation of pilot courts in seven districts, and through further legal reforms and capacity building of judgesand court staff. Work is continued under the new Country Programme to further strengthen the pilot courtsto ensure access to justice of women and the socially excluded groups. Furthermore, capacity building ofjudges, lawyers, police, and government attorneys was also carried out.

o Strengthening the Rule of Law Programme (ROL; 2001-2005)(NEP/00/011) - The ROL project was designed tosupport reform at two levels: one, at the local level, to brings justice closer to the people through thepromotion of alternative dispute resolution (ADR) by strengthening arbitration boards, and, two, at thecentral policy level, by supporting the Ministry of Law and Justice (MoLJ) in drafting civil and criminalcodes and building capacity of its staff on legislative drafting and treaty negotiation. Drafts of the CivilCode, Civil Procedure Code, Penal Code and Criminal Procedure Code were prepared through the supportof this project. (Work is continuing under the new Country Programme to support the MoLJ in finalizingthe drafts of civil and criminal codes and their procedures. The draft civil code has already been preparedand submitted for the regional level consultations.). The ROL project closed in mid-2005 and its remainingactivities were folded into the RoJ project.

o Enhancing Access to Justice through Mediation in Court Cases and Strengthening the Community Mediation Practices (A2JProgramme; 2002, 2003-2006,2007)(Phases I and II, with extension)(NEP/02/M01)(00032399) – In an effort tofill the gaps left out by the earlier RoL and RoJ Programmes and further expedite justice and reduce costsespecially for the poor, the A2J Programme, funded through the Democratic Governance Thematic TrustFund (DG/TTF), included a study of community mediation practices, necessary training support tocommunity mediators and initiation of court referred mediation in Nepal. With an objective toinstitutionalize the indigenous, community and court referred mediation systems, the project also supportedMoLJ to draft a mediation bill. The draft mediation bill was submitted to the Cabinet in December 2009.The Cabinet has sent it to the CA for the final process of enactment with some comments.

Enhancing Access to Justice for Consolidation of Peace in Nepal (00049638). One of the areas of BCPR supportunder the new Strategic Partnership Framework is Rule of Law. As a result, the Enhancing Access to Justicethrough Legal and Judicial Reform project was revised and renamed the Enhancing Access to Justice for Consolidationof Peace in Nepal project. This revised, comprehensive project is designed to strengthen the justice system inorder to support the ongoing peace process in the country. The revised project will strategically address theareas of 1) transitional justice; 2) gender justice; 3) access to justice at the local level and 4) law reform. The

Table 2.2. UNDP Governance Unit Projects in Rule of Law, Justice and Human Rights underUNDAF and CPAP 2008-2010Project Name Dates Key Partners NEX/

DEXTotalfundsbudgeted

Notes

“Enhancing Access to JusticeThrough Legal and JudicialReform” (so-called “new” A2JProject), later amended with a newtitle, “Enhancing Access to Justiceand Consolidation of Peace inNepal” to include transitionaljustice and peace components perthe UNDP-BCPR StrategicPartnership Framework.

2008-2010 Supreme Court NEX (with someBCPR fundedactivities executedon under amodified DEXmodality)

$5,691,192 UNDP-BCPRpreliminaryassessment ofthe Nepal COand A2JProject in2009 led to aDraft UNDP-BCPR SPFand an revisedA2J Projectdocument

“Strengthening the Capacity of theNational Human RightsCommission”

2009-2011 NHRCOHCHR

NEX 600,380

“Support to ParticipatoryConstitution Building in Nepal”

2008-2010 UNDP DEX 695,000 This project issituatedwithin UNDPNepal’s PeaceBuilding Unit.


ANNEX Page 10

objective of the project is to raise national capacity to carry out transitional justice processes throughenhancing execution of court decisions, victim’s support and witness protection programmes, and providetechnical assistance to the Ministry of Peace and Reconstruction (MoPR) for the establishment ofCommission of Enquiry on the Enforced Disappearance (CED) and the Truth and ReconciliationCommission (TRC). In this context the efforts will also be directed towards integrating gender justice intopeace-building agenda through capacity development of rule of law actors to respond to conflict-relatedwomen’s human rights abuses, including sexual violence. Efforts will also support awareness raising onlegal recourse including under the recently passed Anti-Domestic Violence. At the local level, the projectwill concentrate on conflict-affected regions to provide a comprehensive set of services for access to justiceto the most vulnerable population including women and socially excluded communities. Programmecomponents at local and grassroots level will include providing free legal aid and mediation services,strengthening local paralegal capacities and engaging with traditional justice mechanisms in conjunction withthe ongoing UNDP livelihoods project.

o Capacity Development of the National Human Rights Commission (CDNHRC, 2002-2008). The CDNHRCproject, supported by a large number of donors, helped the commission establish itself as a force forprotecting and promoting human rights, during the difficult context of the armed conflict. The projectsupported the commission to set up its basic infrastructure, its management and IT systems, and a networkof four regional offices and five district contact offices for monitoring the human rights situation acrossthe country. This included setting up a system for the commission’s core task of handling complaints andmonitoring human rights violations. The project also assisted the commission to fulfil its mandates givenby the Human Rights Commission Act 1997. In this regard, the project mainly supported the commissionto review the laws in line with international human rights standards, conduct human rights awareness andreview the implementation status of international human rights instruments. The project also supportedthe commission to formulate internal rules and regulations and map out its priorities and future activities instrategic plans, host discussions and report on the human rights situation, produce human rights educationmaterials. However, the lack of Commissioners for close to a year in 2007 seriously affected the pace ofreforms and work of the NHRC.

Strengthening the Capacity of the National Human Rights Commission. The Strengthening the Capacity of the NationalHuman Rights Commission project was jointly developed with OHCHR as the key provider of specializedtechnical assistance. This project will support the NHRC in implementing its Strategic Plan 2008-10. Theproject will support improvement of the capacity of NHRC in the areas of i) auditing human rightscompliance issues in legislation, policies, plans, practices and procedures which will ensure respect forhuman rights by state actors, ii) ensuring the effective implementation of the international human rightsinstruments to fulfil state obligations, iii) ensuring human rights in the forthcoming constitution and iv)protecting and promoting the civil, political and socio-economic rights. This project will support theNHRC to build both its capacity to work with stakeholders and to meet its accountability and obligationsthrough public opinions, inclusive work processes and reporting.


ANNEX Page 11

BStatistical tables relating to Case Dispensation and back-log in

Courts and UNDP Community-based justice initiatives (mediationand PLCs)


ANNEX Page 12

Selected Statistical Data on Rates of Case Dispensation; backlog and age of cases in the DistrictCourts and Pilot Courts

Combined total all District Courts: Description of cases under the original jurisdiction194

S.N.

Description 2061/062 2062/063 2063/064 2064/065 Average offour years

1 Pending balance 27,642 25,699 32,275 30,819 29,1092 New Registration 31,260 31,743 35,438 32,902 32,8363 Total 58,902 57,442 67,713 63,721 61,945

4 Disposal 33, 203 25,167 36,894 29,404 31,167

5 Current Balance 25,699 32, 275 30,819 34,317

6 From among thepending balance, casesexceeding two years

2,252 3,336 2,754 3,587

Statistics of Criminal Cases of seven pilot courts:195

District2062/63 2063/64 2064/65 2065/66Decided

Pendingend

Newin Decided

Pendingend

Newin Decided

Pendingend

Newin Decided

Pending end

1.Kathmandu 1933 3076 2151 3077 2695 2534 2684 2545 5620 3065 2555

2.Morang 266 422 511 514 419 523 373 569 1137 507 630

3.Banke 331 316 569 491 394 518 341 571 1145 611 534

4.Kaski 401 238 477 376 339 500 489 350 949 653 296

5.Chitwan 233 236 370 443 163 161 329 195 643 454 189

6.Siraha 137 175 306 200 281 208 45 444 723 446 277

7.Kapilvastu 130 179 312 390 101 165 170 96 386 247 139

Total 3431 4642 4696 5491 4392 4609 4431 4770 10603 5983 4620

194 Annual Report of Supreme Court 2066/67195 Annual Report of Supreme Court 2066/67


ANNEX Page 13

Statistics of Civil Cases of seven pilot courts:196

Data for Age of Cases and Pending District Court Cases Fall 2009[Source: Case History Survey of 7,535 pending and closed case files at courts in 21 towns and cities across Nepalconducted in Oct. and Nov. 2009 by B. Walsh & Associates and Gandhi & Associates for Supreme Court of Nepal aspublished in their report entitled “Judicial Mapping and Judicial Assessment: Legal and Judicial Reforms toStrengthenCreditor Rights Project”)( Submitted to Supreme Court of Nepal and World Bank January 2010) at page95].

Table 10 - Age of Cases in Case History SurveyCase History Cases Median age in monthsDistrict court pending 2,453 15District court civil closed 1,914 11District court criminal closed 1,287 9Appeal court pending 751 14Appeal civil closed case 386 10Appeal criminal closed case 403 9Total 7,194

Table 12 - Age of Pending District CourtCases in Case History Survey number %Under 12 months old 805 33%Over 12 months & under 24 months 1116 46%Over 24 months & under 36 months 390 16%Over 36 months & under 48 months 61 3%Over 48 under 60 months 21 1%Over 60 months 17 1%Total 2410 100%

196 Annual Report of Supreme Court 2066/67

District

2062/63 2063/64 2064/65 2065/66

DecidedPendingend

Newin Decided

Pendingend

Newin Decided

Pendingend

Newin Decided

Pendingend

1.Kathmandu 1735 4430 2271 3253 3448 2221 2464 3205 5938 2547 3391

2.Morang 514 611 632 721 522 583 582 523 1192 541 651

3.Banke 564 601 812 697 716 740 553 903 1785 900 885

4.Kaski 382 358 391 309 440 343 325 458 815 513 302

5.Chitwan 162 256 257 311 202 251 228 225 573 330 243

6.Siraha 1085 792 1134 932 994 966 648 1312 2556 1369 1187

7.kapilvastu 364 312 604 589 327 447 449 325 947 576 371

Total 4806 7360 6101 6812 6649 5551 5249 6951 13806 6776 7030


ANNEX Page 14

ANNEX

Statistical Tables: Community Mediation, Legal Aid Desks and Paralegals

Location of Court-referred Mediation Centres (Under A2J Support)2010 Districts

IlamBankeKailaliPokharaBaraSunsariSaptari

2010 DistrictsJhapaDang (this covered inter alia three other districts namely Rolpa, Rukum and Salyan

Location of Community Mediation CentresDistrict Municipality VDC

Kailali Tikapur PahalmanpurDurgauliPathlaiyaSadepani

Surkhet Birendranagar UttargangaJarbutaLatikoiliChinchhu

Dang Tulsipur ManpurDuruwaBijauriTarigaon

Udayapur Triyuga Rampur ThoksilaBeltarJogidahaBhalayadada


ANNEX Page 15

Data on Community Mediation Case

All Donor Community Mediation 1st June 2009 to July 16th, 2010Cases Description

District Registered Settled Not-settled Pending Settled outside theMediation Centre

Old New Total

1.Udayapur197 0 234 234 186 6 40 2

2.Dang198 22 263 285 214 14 36 21

3. Surkhet199

11 157 168 123 24 20 1

4. Kailali200

3 124 127 106 13 3 5

5. Rupandehi 201

0 223 223 155 30 34 4

6. Bardiya202

148 324 472 341 38 93 0

7. Banke203

84 81 165 113 4 40 8

8. Kanchanpur204 0 113 113 81 1 31 0

9. Nawalparasi205 0 347 347 250 25 44 28

10.

Makawanpur206 0 143 143 61 14 53 15

11.

Morang207

90 763 853 783 57 11 2

Total 3130 2413 226 405 86

% 10077.09% 7.22% 12.94% 2.75%

197 Supported by UNDP A2J198 Ibid199 Ibid200 Ibid201 DanidaHUGOU202 Ibid203 TAF204 Ibid205 TAF206 DanidaHUGOU207 Ibid


ANNEX Page 16

Information on community mediation:

UNDP A2J initiated community mediation program in 2008. An agreement with the implementing partner was entered on May 2009.Community mediation programs are implemented in 4 districts covering 4VDCs and 1 Municipality each district.Names of district, Municipality and VDCs

District Municipality VDCUdaypur (Eastern) Triyuga Rampur Thoksila

BeltarJogidahaBhalayadada

Dang (Western) Tulsipur ManpurDuruwaBijauriTarigaon

Surkhet (Western) Birendranagar UttargangaJarbuttaLatikoiliChinchhu

Kailali (Far Western) Tikapur DurgauliPahalmanpurPatharaiyaSadepani

Community mediators are selected from the ward level and from each ward 3 people are nominated and consideration is taken to see that the constitution ofmediators is homogenous and inclusive. There are 27 mediators in each VDC. Centre for Legal Research and Resource Development (CeLRRd) our implementingpartner has trained 536 community mediators. Besides this, there is a District Coordinator and Master Trainers in each district and each VDC has a VDCCoordinator who is responsible for the day-to-day operation of the mediation centres and they are also involved in registering complaints and requesting the otherparty to the dispute to attend the mediation sessions.

Overview of ethnicity of District Coordinators and Master Trainers

Gender Caste

Male Female Brahmin/Chhetri Indigenous Mahesi

7 5 7 4 1

58% 42% 58% 33% 9%

Early part of 2009 witnessed selection of districts and VDCs, selection of District Coordinators and Master Trainers and their subsequent training on communitymediation skills. Thereafter, potential community mediators were identified (the implementing partner do not have any hand in choosing or picking thepotential mediators) and training on mediation skills was provided to them and community mediation centres were established. Partial support in the form oflogistics was provided to the implementing partner for setting up these community mediation centres. Community mediation centres have been established insome areas within the VDC premises (where such building exists) whereas others are on lease.


ANNEX Page 17

Overview of selection of districts and VDCsCeLRRd developed a baseline survey format for the selection of municipalities and VDCs of the four districts.

Following criteria were set for the selection of program locations:

Cases load in district court, district administration office, and district police office, district revenue office, district land reform office, VDC and Municipality.Willingness of the local authoritiesAccessibility with the program locationsHeterogeneous population compositionAvailability of similar types of services in the locationsSituation of access to justice in the locationsThe following Municipalities and VDCs were selected:

Name ofVDC/MC

Civil / Individual Cases Criminal Case Population Remarks

Kailali District

Tikapur 365 6 38,722 Selected

Patharaiya 57 9 19,735 Selected

Pahalmanpur 43 15 11,892 Selected

Dhurgauli 37 8 13,291 Selected

Sadepani 21 8 17,956 Selected

Udayapur

Triyuga 466 131 63,763 Selected

Rampur Thoksila 28 24 19,246 Selected

Bhalayadada 28 0 8,277 Selected

Beltar 20 15 12,445 Selected

Jogidaha 17 8 5,876 Selected

Dang

Tulasipur 231 51 33,876 Selected

Manpur 81 18 12,951 Selected

Duruwa 59 10 13,006 Selected

Bijauri 55 9 12,064 Selected

Tarigaue 38 0 10.123 Selected

Surkhet

Birendranagar 285 85 31,381 Selected

Latikoili 96 26 12,380 Selected

Uttarganga 60 13 10,255 Selected

Chhinchu 27 20 10,911 Selected

Jarbutta 18 4 6,513 Selected


ANNEX Page 18

Overview of composition of Community Mediators

Name ofDistrict

Gender Caste

Male Female Brahmin/Chettri Dalit Indigenous Others

Udayapur-135

Triyuga MC 12 15 12 4 10 1

Beltar 21 6 14 9 4 0

Rampur 10 17 10 5 12 0

Jogidada 12 15 2 3 21 1

Bhalayadad

a

11 16 4 2 21 0

66(49%) 69(51%) 42(31%) 23(17%) 68(50%) 2(2%)

Kailali-135

Patharaiya 14 13 9 3 15 0

Durgeuli 15 12 7 1 19 0

Phahalman

pur

14 13 6 1 20 0

Tikapur

MC

15 12 10 3 14 0

Sadepani 13 14 8 4 15 0

71 (53%) 64 (47%) 40 (30%) 12 (9%) 83 (61%) 0 (0%)

Dang 134

Bijauri 16 10 16 4 6 0

Tulsipur MC 13 14 20 4 3 0

Duruwa 23 5 15 3 10 0

Manpur 16 10 18 1 7 0

Tarigue 16 11 20 1 6 0

84 (63%) 50 (37%) 89 (66%) 13 (10%) 32 (24%) 0 (0%)

Surkhet-132

Utarganga 12 15 19 2 6 0

Jarbuta 17 11 18 5 5 0

Latikoili 16 11 11 3 10 3

Chhinchu 13 10 12 4 7 0

Birendranaga

r

11 16 21 3 3 0

69 (52%) 63 (48%) 82 (62%) 17 (13%) 31 (23%) 3 (2%)


ANNEX Page 19

Mediation Case Report of Udaypur, Dang, Surkhet and Kailali, July, 2009 to June, 2010

1. Cases DescriptionDistrict Registered Settled Not-settled Pending Settled out side

the MediationCentre

Old208

New

Total

1. Udayapur

0 234

234 186 6 8 2

2.Dang

22 263

285 214 14 33 21

3. Surkhet 11 157

168 123 24 31 1

4. Kailali 3 124

127 106 13 27 5

Total 814

629 57 99 29

2. Types of Cases (Only Disposed Cases)

SN

Name ofDistrict La

nd

Tran

sitio

n

Batte

ry

Def

amat

ion

Vio

lence

ag

ainst

wom

en

Mar

riage

Rela

ted

Parti

tion

Alco

holis

m

Wag

es R

elate

d

Road

and

Exi

t

Irrig

atio

n

Ani

mal

husb

andr

y

Fore

st R

elate

d

Oth

ers

1Udayapur 19 17 15 26 34 2 18 4 3 9 3 4 3 35

2.Dang 38 34 18 22 40 15 29 1 3 2 5 1 2 18

3. Surkhet27 20 12 12 43 6 4 1 4 1 1 7 2 7

4. Kailali20 30 4 15 24 3 7 0 0 0 1 0 5 10

Total 104 101 49 75 141 26 58 6 10 12 10 12 12 70

3. Disputant DemographySN

Name ofDistricts

Ethnicity Demography Gender DemographyBra/ Chhetri Dalit Indigenous Others Female Male Total

1. Udayapur 60 56 257 41 201 188 389

2. Dang 195 112 131 28 165 301 466

3.Surkhet 144

108 35 15 135 167 302

4.Kailali 84

14 154 0 86 166 252

Total483

290 577 84 587 822 1409


ANNEX Page 20

4. Social Justice Demography (Based on Disposed Cases)

Name of Districts Male v. MaleFemale v.Female Male v. Female Total

Female as firstparty

Remarks

1. Udayapur 46 40 106 192 60

2. Dang 90 30 108 228 51

3.Surkhet

54 38 55 147 55

4.Kailali

44 16 59 119 37Total 234 124 328 686 203

5. Social Justice Demography (Disposed Cases)

Name ofDistricts

B/Cv.

B/CDalit v.Dalit

Indigenousv.

IndigenousB/C

v. Dalit

B/Cv.

Indigenous

Dalitv.

Indigenous

Otherv.

Other

B/CV.

Other

Dalit v.Other

Indigenous v.Other

Total

Remarks

1. Udayapur 36 48 132 34 34 58 15 14 6 12389

2. Dang 121 52 68 46 63 32 12 50 10 12466

3.Surkhet

92 83 25 21 19 18 11 23 8 2302

4.Kailali

69 60 99 9 8 7 0 0 0 0252

Total318 243 324 110 124 115 38 87 24 26

1409

6. Economical Status of Disputing Parties

Name ofDistricts

Economic Status

Lower v.Lower

Lower v.Medium

Lower v.Higher

Medium v.Medium

Mediumv.

HigherHigher

v. Higher

1. Udayapur 89 72 49 75 53 51

2. Dang 88 95 71 80 67 65

3.Surkhet

74 72 34 66 30 26

4.Kailali

75 108 19 17 16 17Total

326 347 173 238 166 159


ANNEX Page 22

7. Educational Level of Disputing Parties (Based on Disposed Cases)

Name ofDistricts

Education

Both IlliterateIlliteratev. Literate

Illiterate v.Secondary or

above

BothLiterat

e

BothSecondary or

above Total

1. Udayapur 35 46 29 51 31 192

2. Dang 44 53 39 57 35 228

3. Surkhet 45 58 22 12 10 147

4. Kailali 24 31 31 20 13 119Total 148 188 121 140 89 686

8. Evaluation of Implementation StatusS.N. Name of

DistrictsNo. of Settlement

Case Reviewed Implementation Status Remarks

Fully Partially Not-at all1

Udayapur 38 24 14 154

2Dang 67 55 12 161

3 Surkhet 28 14 14 119

4 Kailali26 17 9 93

Total 159 110 49 527


ANNEX Page 23

Centre to Assist & Protect Child Rights of Nepal (CAP-CRON)Dispute registration January to May 2010

a) Registration and resolution of disputes by Paralegal Committees

District VDC Registration

Resolved

A. Morang Mahadeva20

16

Dadarbairiya

17 17

Bathigachha 30 28Thalaha 14 14Amahibariyati

14 14

Majhare 17 17Babiya Birta 12 12SiswaniJahada

26 26

Buddhanagar

32 32

Kadamaha 15 15Total 197 191

B. Siraha Hanumannagar

7 7

Itatar 9 8ThalaKataha

3 3

Gautadi 10 9Karjanaha 9 7Badharamal 5 5Krishnapur 8 7Arnamapapri

9 8

Jamdaha 4 4Ashanpur 3 3Total 67 61TOTALA+B

264 252


ANNEX Page 24

Janaki Women Awareness Society (JWAS), DhanushaDispute Registration Details (January to June, 2010)

(a) Registration and resolution of disputes by Paralegal Committees

S.N. District V. D.C. Registration Resolved1

Dhanusha

Baniniya 90 892 Laxmipur bagewa 50 493 Paudeshwor 75 704 Shantipur 45 445 Sakhuwa Mahendranagar 95 956 Hariharpur 110 1107 Tarapatisirsiya 59 598 Mahauwa 55 559 Kanakpatti 102 10010 Dhanusha gondipur 85 80

Total 766 751


ANNEX Page 25

Jan Jagaran Youth Club (JJYC), BaraDispute registration January to May 2010,

a) Registration and resolution of disputes by Paralegal Committees

District VDC Registration ResolvedBara Bishunpur 1 1

Beldari 6 6

Bagahi 1 1Amarpatti 7 7Kudawa 1 1Khopwa 6 6Hariharpur 3 2Inarwamal 8 8Laxmipur Kotwali 3 3Sapahi 10 8Total 46 43


ANNEX Page 26

Statistics for 2008 to 2010 under paralegal initiative is as follows:The following table provides descriptive picture of the paralegal initiatives implemented by A2J Partners.

Centre to Assist and Protect Child Rights of Nepal (CAP-CRON)b) Disputes solved by Paralegal Committees

District VDC Registration ResolvedMorang Mahadeva 20 16

Dadarbairiya 17 17

Bathigachha 30 28Thalaha 14 14Amahibariyati 14 14Majhare 17 17Babiya Birta 12 12Siswani Jahada 26 26Buddhanagar 32 32Kadamaha 15 15Total 197 191

District VDC Registration ResolvedSiraha Hanumannagar 7 7

Itatar 9 8Thala Kataha 3 3Gautadi 10 9Karjanaha 9 7Badharamal 5 5Krishnapur 8 7Arnama Papri 9 8Jamdaha 4 4Ashanpur 3 3Total 67 61

Morang+Siraha Total 270 253

b. Percentage of totalcases submitted to paralegal committees submitted by women:

District VDC Registration Registered byMale

Registered byFemale

Morang Mahadeva 7.4% 2.22% 5.19%Dadarbairiya 6.3% 2.6% 3.7%

Bathigachha 11.11% 3.7% 7.4%Thalaha 5.19% 1.11% 4.07%Amahibariyati 5.19% 1.48% 3.7%Majhare 7.07% 2.96% 4.07%Babiya Birta 4.44% 0.37% 4.07%Siswani Jahada 9.63% 2.96% 6.67%Buddhanagar 12.6% 5.19% 7.4%Kadamaha 6.3% 2.96% 3.33%

Siraha Hanumannagar 2.6% 0.74% 1.85%Itatar 3.33% 0.74% 2.6%Thala Kataha 1.11% 00% 1.11%Gautadi 3.7% 1.11% 2.6%Karjanaha 3.33% 0.37% 2.96%Badharamal 1.85% o.37% 1.48%Krishnapur 2.96% 2.6% 0.74%Arnama papri 3.33% 0.74% 2.6%Jamdaha 1.48% 00% 1.48%Ashanpur 1.11% 00% 1.11%Total 100% 32.2% 68.13%


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c . Percentage of totalcases submitted to Paralegal Committees submitted by Dalits

District VDC Registration Registered by DalitMorang Mahadeva 7.4% 4.44%

Dadarbairiya 6.3% 2.96%Bathigachha 11.11% 4.44%Thalaha 5.19% 1.48%Amahibariyati 5.19% 4.07%Majhare 7.07% 4.07%Babiya Birta 4.44% 1.11%Siswani Jahada 9.63% 2.6%Buddhanagar 12.6% 7.78%Kadamaha 6.3% 2.22%

Siraha Hanumannagar 2.6% 1.48%Itatar 3.33% 1.85%Thala Kataha 1.11% 1.11%Gautadi 3.7% 2.22%Karjanaha 3.33% 2.22%Badharamal 1.85% 1.11%Krishnapur 2.96% 0.74%Arnama papri 3.33% 2.6%Jamdaha 1.48% 1.48%Ashanpur 1.11% 1.11%Total 100% 51.09%

d. Percentage of casessubmitted by Dalits solved by Paralegal Committees

District VDC Registration Resolved UnresolvedMorang Mahadeva 4.44% 4.07% 0.37%

Dadarbairiya 2.96% 2.96% -Bathigachha 4.44% 4.44% -Thalaha 1.48% 1.48% -Amahibariyati 4.07% 4.07% -Majhare 4.07% 3.33% -Babiya Birta 1.11% 1.11% -Siswani Jahada 2.6% 2.6% -Buddhanagar 7.78% 7.04% 0.74%Kadamaha 2.22% 2.22% -

District VDC Registration Resolved UnresolvedSiraha Hanumannagar 1.48% 1.48% -

Itatar 1.85% 1.85% -Thala Kataha 1.11% 1.11% -Gautadi 2.22% 1.85% 0.37%Karjanaha 2.22% 2.22% -Badharamal 1.11% 1.11% -Krishnapur 0.74% 0.74% 0.74%Arnama papri 2.6% 2.6% -Jamdaha 1.48% 1.48% ---Ashanpur 1.11% 1.11% -

Total 51.09% 48.87% 2.22%


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Human Rights Protection and Legal Service Centre (HRPLSC)a) Disputes solved and by Paralegal Committees

District VDC Registration Resolved ReferBanke Samshergunj 10 3 3

Bankatuwa 9 3 2

Titihiriya 14 2 6Sitapur 1 - 1Indrapur 30 13 4Udharpur 4 4 -Baijapur 12 4 2Binauna 6 2 1Fattehpur 3 3Rajhena 14 4 5Total 103 38 24

b) Percentage of total cases submitted to paralegal committees submitted by women:

c) Percentage of total cases submitted to Paralegal Committees submitted by Dalits

District VDC Registration Registered by DalitBanke Samshergunj 4 50%

Bankatuwa 4 0Titihiriya 6 0Sitapur 1 0Indrapur 13 45.45%Udharpur 4 50%Baijapur 6 16.16%Binauna 3 0Fattehpur 3 33.33%Rajhena 5 20%Total 49

District VDC Registration Registered by Male Registered by FemaleBanke Samshergunj 4 25% 75%

Bankatuwa 4 0% 100%

Titihiriya 6 0 100%Sitapur 1 0 100%Indrapur 13 10 90%Udharpur 4 0 100%Baijapur 6 10 90%Binauna 3 0 100%Fattehpur 3 0 100%Rajhena 5 2o% 80%Total 49


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District VDC Registration Resolved UnresolvedBanke Samshergunj 2 50% 50%

Bankatuwa 0 0 0Titihiriya 0 0 0Sitapur 0 0 0Indrapur 5 100% 0Udharpur 2 100%Baijapur 1 100%Binauna 0 0

Fattehpur 1 100%Rajhena 1 100%Total 14


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Jan Jagaran Youth Club, Baraa) Disputes solved by Paralegal Committees

District VDC Registration ResolvedBara Bishunpur 1 1

Beldari 6 6Bagahi 1 1Amarpatti 7 7Kudawa 1 1Khopwa 6 6Hariharpur 3 2Inarwamal 8 8Laxmipur Kotwali 3 3Sapahi 10 8Total 46 43


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b. Percentage of totalcases submitted to paralegal committees submitted by women:

District VDC Registration Registered byMale (%)

Registered by Female(%)

Bara Bishunpur 1 0.0 100.0

Beldari6 0.0 100.0

Bagahi 1 100.0 0.0Amarpatti 7 28.6 71.4Kudawa 1 0.0 100.0Khopwa 6 16.7 83.3Hariharpur 3 0.0 100.0Inarwamal 8 37.5 62.5Laxmipur Kotwali 3 0.0 100.0Sapahi 10 40.0 60.0Total 46 23.9 76.1

c. Percentage of totalcases submitted to Paralegal Committees submitted by Dalits

District VDC Registration Registered by Dalit (%)Bara Bishunpur 1 0.0

Beldari6 16.7

Bagahi 1 0.0Amarpatti 7 42.9Kudawa 1 100.0Khopwa 6 50.0Hariharpur 3 33.3Inarwamal 8 37.5Laxmipur Kotwali 3 33.3Sapahi 10 10.0Total 46 30.4


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District VDC Registration Resolved (%) Unresolved(%)

Bara BishunpurBeldari 1 100

BagahiAmarpatti 3 100Kudawa 1 100Khopwa 3 100Hariharpur 1 0 100Inarwamal 3 100Laxmipur Kotwali 1 100Sapahi 1 100Total 14 92.9 7.1

Janaki Women Awareness Society (JWAS), Dhanusha(a) Dispute Solved by paralegal Committes.

National Nepal Dalit Social Welfare Organization (NNDSWO)S. No. District Registered Resolved

01. Doti 33 3002. Kailali 40 33

Total 73 63

S.N. District V. D.C. Registration Resolved1

Dhanusha

Baniniya 90 892 Laxmipur bagewa 50 493 Paudeshwor 75 704 Shantipur 45 445 SakhuwaMahendranagar 95 956 Hariharpur 110 1107 Tarapatisirsiya 59 598 pr. ko. Mahauwa 55 559 Kanakpatti 102 10010 Dhanusha gondipur 85 80

CInternational Instruments and Domestic Legislation of Nepal: Analysis


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Annex

International instruments acceded to or ratified by Nepal Ratification oraccession date

Slavery Convention, 1926 7 Jan. 1963 (A)

Protocol Amending the Slavery Convention 7 Jan. 1963 (A)

Supplementary Convention on the Abolition of Slavery, the Slave Trade and Institutionand Practices Similar to Slavery, 1956

7 Jan. 1963 (A)

Convention on the Political Rights of Women, 1952 26 April 1966 (A)

Convention on the Prevention and the Punishment of Genocide, 1948 17 Jan. 1969 (A)

International Covenant on the Elimination of all forms of Racial Discrimination (ICERD),1965

30 Jan. 1971 (A)

International Convention on the Suppression and Punishment of the Crime of Apartheid,1973

12 July 1977 (A)

International Convention Against Apartheid in Sports, 1985 1 March 1989 (R)

Convention on the Rights of the Child, 1989 14 Sept. 1990 (R)

Convention on the Elimination of all forms of Discrimination Against Women (CEDAW),1979

22 April 1991 (R)

International Covenant on Economic, Social and Cultural Rights, 1966 14 May 1991 (A)

International Covenant on Civil and Political Rights, 1966 14 May 1991 (A)

Optional Protocol to the International Covenant on Civil and Political Rights, 1966 14 May 1991 (A)

Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment orPunishment, 1984

14 May 1991 (A)

Convention on the Suppression of Immoral Trafficking and Protocol, 1949 27 Dec. 1995 (A)

Second Optional Protocol to the International Convention on Civil and PoliticalRights/aiming at the Abolition of Death Penalty, 1989

26 Sept. 1997 (A)

Optional Protocol to CEDAW Convention, 1999 18th Dec., 2001

Optional Protocol to CRC on Sale of Child, Child Prostitution and Child Pornography,2000

8th Sep, 2000

Optional Protocol to CRC on Use of Children in Armed Conflict, 2000 8th Sep, 2000

The Discrimination (Employment and Occupation) Convention, 1958 (No 111) 19th Sept, 1974

The Minimum Wage Fixing Convention, 1970 (No 131) 19th Sept, 1974

The Equal Remuneration Convention, 1951, (No 100) 6th October, 1976

The Weekly Rest Convention, 1921 (No 14) 10th Dec. 1986

The Tripartite Consultation (International Labour Standards) Convention, 1976 (No 144) 21st March, 1975

Convention Concerning Minimum Age for Admission to Employment, (No 138) 4th October, 1996

Convention Concerning the Application of the Principles of the Right to Organize andBargain Collectively (No 98)

4th October, 1996

Forced Labor Convention, 1930 (No. 29) 3rd Jan 2002

Worst Forms of Child Labour Convention, 1999 (No. 182) 3rd Jan 2002

SAARC Convention on Regional Arrangement for the Promotion of Child Welfare inSouth Asia

15 Nov 2005

SAARC Convention on Preventing and Combating Trafficking in Women and Childrenfor Prostitution

15 Nov. 2005

Optional Protocol to the Convention on the Rights of the Child on the Sale of Children,Child Prostitution and Child Pornography

20 June, 2006

Optional Protocol to the Convention on the Elimination of Discrimination against women 15 June 2007

Indigenous and Tribal People’s Convention, 1989 (No. 169) 22 August 2007

Abolition of Forced Labor Convention, 1957 (No 105) 30 August 2007


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AnnexMapping of Constitutional Provisions Related to Sex, Caste and Ethnicity in Interim Constitution, 2007

Section Article ProvisionsPreamblePart 2, Citizenship Art. 8: Citizenship at the Commencement of the Constitution (2) (b) any

person whose father or mother is a citizen of Nepal at the time of birth ofsuch person.Art. 8 (6) A woman of foreign nationality married to a Nepali citizen mayacquire naturalized citizenship, if she desires to do so, pursuant to thelaws in force.Art. 8 (7) Notwithstanding anything contained elsewhere in this Article inthe case of such a person born to a woman citizen of Nepal married to aforeigner, if such a person is born in Nepal and has been residingpermanently in Nepal who has acquired citizenship of the foreign countryby virtue of the citizenship of his/her father he/ she may acquirenaturalized citizenship of Nepal pursuant to the laws in force.

Part 3 FundamentalRights

Art 12 Right to Freedom

Art. 13 Right to Equality: Following principles have been adopted: Equalitybefore law, No discrimination against the citizen, Positive discriminationto protect the interests of women, Dalits, indigenous ethnic tribes,Madhesis, or peasants, labourers, economically, socially, or culturallybackward and children, the aged and disabled, and those who arephysically or mentally incapacitated.

Art. 14. Rights against Untouchability and Racial Discrimination.Art. 15. Rights regarding Publication, Broadcasting and Press.Art. 16 Rights regarding Environment and HealthArt. 17 Education and Cultural Rights: (1) Each community shall have the right

to receive basic education in their mother tongue as provided for in thelaw;(2) Every citizen shall have the right to receive free education from thestate up to secondary level as provided for in the law;(3) Each community residing in Nepal has the right to preserve andpromote its languages, script, cultural civilization and heritage.

Art.18. Rights regarding Employment and Social SecurityArt. 19. Right to propertyArt. 20 Rights of Women: (1) No one shall be discriminated against in any form

merely for being a woman.(2) Every woman shall have the right to reproductive health and otherreproductive matters.(3) No physical, mental or any other form of violence shall be inflicted onany woman, and such an act shall be punishable by law.(4) Sons and daughters have equal right to their ancestral property.

Art. 21. Right to Social Justice: (1) Women, Dalits, indigenous ethnic groups,Madhesi communities, oppressed groups, the poor peasants and labourers,who are economically, socially or educationally backward, shall have theright to participate in state structures on the basis of principles ofproportional inclusion.

Art, 22 Rights of ChildrenArt. 23 Right to ReligionArt. 24 Right to JusticeArt. 25 Right against Preventive DetentionArt. 26 Right against TortureArt. 27 Right to InformationArt. 28 Right to PrivacyArt 29 Right against ExploitationArt. 30 Right Regarding LaborArt. 31 Right Against ExileArt. 32 Right to Constitutional Remedy

3 Part 7ConstituentAssembly

Art. (63) Formation of the Constituent Assembly: (4) The principle ofinclusiveness shall be taken into consideration while selecting thecandidates by the political parties pursuant to sub-clause (a) of Clause (3)above, the political parties shall have to ensure proportionalrepresentation of women, Dalit, oppressed tribes/indigenous tribes,backward, Madhesi and other groups, in accordance with and as provided


ANNEX Page 36

for in the law.

Notwithstanding anything contained in this clause, in case of womenthere should be at least one third of total representation obtained byadding the number of candidature pursuant to sub- clause (a) of clause (3)to the proportional representation pursuant to sub-clause (b) of clause (3).

4. Part 18PoliticalParties

Art. 142 (3) (c): In the executive committee of all levels, there should be aprovision for including members from neglected and suppressed regionsincluding women and Dalits.(4): The Election Commission shall not register any political party if anyNepali citizen is discriminated against becoming a member of the politicalparty on the basis of religion, caste, tribe, language or sex, or if the name,objectives, insignia or flag of such political parties is of a nature to dividethe country, or such party constitution or rules are for purposes ofprotecting and promoting a party- less or single party system ofgovernance.


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AnnexMajor discriminatory laws based on sex

Name of the legislation Discrimination Name of the legislation Discrimination

Article 9 (1) and 9 (2) ofthe Constitution ofKingdom of Nepal, 1990

Women cannot providecitizenship to theirchildren

Article 8 (7) of the InterimConstitution 2063 ( 2007)

Women Can provide citizenship to theirchildren if her husband is a Nepalicitizen. However, children born to aNepali woman married to a foreignermay acquire naturalized citizenship ofNepal, if s/he is born in Nepal and hasbeen residing permanently in Nepal andhas not acquired the citizenship of thecountry by virtue of the citizenship ofhis/her father.

Article 9 (5) of theConstitution of Kingdomof Nepal, 1990

Women cannot providecitizenship to theirspouse.

Article 8 (6) of the InterimConstitution 2063(2007)

Women cannot provide citizenship totheir spouse.

Article 5, 5(1) of theCitizenship Act, 2063 (2007)

Women cannot transfer citizenship totheir spouse on the ground of marriage.

Article 5 (2) of theCitizenship Act, 2063 (2007)

Children born to a Nepali womanmarried to a foreigner may acquirenaturalized citizenship of Nepal, if s/he isborn in Nepal and has been residingpermanently in Nepal and has notacquired citizenship of the country byvirtue of the citizenship of his/her father.

Annex/Schedule (2)&(4)of the Nepal CitizenshipRules, 1992

Citizenship certificateonly states the father’s orhusband’s name.

Annex / Schedule 9 of theNepal CitizenshipRegulation 2063 (2007)

Application forms for termination ofcitizenship only state the father's orgrandfather's name.

Application forms of thePassport Rules (1970)

Women require theguardian’s or husband’sapproval to obtain apassport.

Schedule 2 of the PassportRules, 2027 (1970)

Page 3 of passport

Only the father's nationality is required.If a woman is travelling with herhusband, this needs to be mentioned inthe husband's passport but not vice versa.

No. 1A of the CivilCode, 1963 - Partition

Married daughters notconsidered ascoparceners.

No. 1 A of the Civil Code,1963 Section Partition

Continued the same discriminatoryclause

No. 3 Partition between children of brothersonly.

No. 4 Law reinforces polygamy providingequal share on husband's property to allwives.

No 10 Conditional rights over property formarried women

No 11 A daughter born after the partition of herfather’s property between his wife andson is denied the right to inherit parentalproperty.

No. 16 of the Civil Code,1963 - Partition

Unmarried daughters toreturn her share ofparental property uponmarriage

No 16 of the Civil Code,1963

Amended the provision. A daughter whogets her share of the parental propertydoes not need to return it to her parentswhen she is married.

No.19 (1) of the CivilCode, 1963 - Partition

Consent of marrieddaughters not required todispose of more than halfof the immovable familyproperty

No. 19 (1) of the Civil Code,1963 - Partition

Continued the same discriminatoryprovision

No 19 (2), (3), (5) Married daughters are excluded frompartition.

No. 2 of the Civil Code,1963 - Women’sExclusive Property

Women require consentto dispose of more thanhalf of the immovablefamily property.

Amended.Now, ‘An unmarried girl, a

married woman or a widowliving separately may enjoythe movable and immovableproperty on her own.’

Amended

No. 7 of the Civil Code,2020 (1963) Women’sExclusive Property

Women are restrictedfrom freely using theirshare of inheritedproperty.

Amended Amended


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No. 5 of the Civil Code,1963 Women ExclusiveProperty

Married daughters fall behind in the lineof succession for receiving suchproperty.

No. 1 of the Civil Code,2020 (1963) - IntestateProperty

Definition of ‘Hakwala’includes sevengenerations on the maleside

Amended. ‘Hakwala’ nowincludes seven generationson the side of the concernedperson.

Amended

No. 2, 3, 6, 7, 9, 10, 12of the Civil Code, 1963 -Intestate Property

Married daughters fallbehind in the line ofsuccession of intestateproperty

No 2,3,6,7,9,10 &12 of theCivil Code, 1963 - instateproperty

Continued the same provision

Section 26 (1) of theLand Reform Act, 2021(1964)

Tenancy right istransferable only to anunmarried daughter aftershe reaches the age of 35years. The provisionstates, ‘husband, wife,son, mother, father,adopted son, unmarrieddaughter having attainedthe age of 35 years,daughter-in-law,grandson, granddaughter-in-law or elder oryounger brothers livingin the same family.’)

Amended the provision bysubstituting it with‘husband, wife, son,daughter, mother, father,adopted son, adopteddaughter, daughter-in-law,grandson, granddaughter,granddaughter-in-law, elderor younger brothers or elderor younger sisters living inthe same family’

Amended

Section 10 (2) of theBonus Act, 1974

Unmarried daughters canreceive bonus only in theabsence of sons, andmarried daughters fall farbehind in the line ofsuccession.

Amended by using thephrase ‘Son, daughter,widow daughter-in-lawliving in the same family….’

Amended

Section 38 of theInsurance Act, 1992

Married daughtersexcluded from the line ofsuccession.

Amended Amended

Section 15 (a) (1) of theEmployees ProvidentFund Act, 1962

Married daughters fallbehind in the line ofsuccession toreceive/claim providentfund.


Section 23 (1) of thePension Act, 1986

Married daughters fallbehind in the line ofsuccession toreceive/claim bankdeposit.


Amended

No. 10 of the Civil Code,1963 - Rape

Rape of a marriedwoman ending herrelations with her family;husband considered ex-husband by the law.

Omitted the provision. Omitted the provision

Section 10 of the ArmyAct, 1959

Women can join theArmy only in certainnon- combatantpositions.

Rule 4 (3) (h) Regulationrelating to Army –Police2056

Only unmarried women and widows canfile applications for army and policeservices.

Rule 4(4) Regulationrelating to Army-police

Women police cannot marry during thetraining period.

Section 12 of the ForeignEmployment Act 1985

Permission of theguardian and theGovernment is requiredfor women to go abroadfor employment.

New Act Enacted ForeignEmployment Act, 2064(2007)

Discriminatory provision amended

No. 28, 28(a), 32 of theCivil Code, 1963 -Homicide

Higher punishment forwoman undertakingabortion than abortion asa result of an act of thirdperson.

No. 32 of the Civil Code,1963- Homicide

The same provision continued.


ANNEX Page 39

No. 1(1) of the CivilCode, 1963 - Husbandand Wife

Different grounds fordivorce for men andwomen.

Amended the provision The same ground for divorce applied toboth men and women

No 4 of Civil Code, 2020(1963) Husband and Wife

If a wife who is separated from herhusband after receiving her share ofproperty remarries, the remainingproperty will go to the ex-husband or hisfamily.

No. 4 Civil Services Rule2050 (1993)

Widow's right to allowances andgratuity of husband conditional

No 98 (2) Civil ServicesRule, 2050

Widow's right to allowances andgratuity of husband conditional

No 98 (3) Civil ServiceRule, 2050

Adopted sister not included in the line ofsuccession to receive pension

No 98 (6) civil Service Rule, Married daughter not included in the lineof succession to receive extraordinarypension

No 102 (2) Unmarried daughters fall behind sons inthe line of succession and marrieddaughters fall far behind in the line ofsuccession in receiving pension.

2 & 2(a)Civil Code,1963 - Adoption

Additional restriction forwomen to adopt a child

Amended the provision‘The person other than theones having his/her own son,daughter may, havingexecuted a deed, adopt a sonor a daughter.Provided that no personhaving a son shall beallowed to adopt a son andno person having a daughtershall be allowed to adopt adaughter.’

Amended

No. 9 of the Civil Code,2020 ( 1963) Marriage

Bigamy encouraged bylaw as second marriage ispermitted under certainconditions withoutdivorcing the first wife.

No. 9 of the Civil Code,1963- Marriage

Continued the same discriminatoryprovision

No 9 (a) of the Civil Code,1963- Marriage

Bigamy is permitted with the consent ofthe wife, except in the case where thewife has become insane with no chanceof recovery and has taken her share ofproperty.

No. 11 the Civil Code, 1963-Marriage

Discriminatory provision regarding thetime limit in case of bigamy andadultery.

No. 6, Civil Code, 1963,Adultery

Discriminatory provision regarding thetime limit in case of bigamy andadultery.

No. 3(1) of theChildren's Act 1991

Father gets priority overmother for naming achild.

No. 3(1) of the Children'sAct 1991


Section 31 of theRevenue Tribunal Rules,1974

Court dress for malejudges only.

Section 31 of the RevenueTribunal Rules, 1974


107 (3) Police Rule, 2049(1992)

‘Hakwala’ does not include husband andmarried daughter.

107 (5) Police Rule 2049(1992)

Widower's right to receive dead wife's(women police personnel) pension isunder discretion.

95 (2) Nepal Health ServiceRules 2055 (1999)

Widow's right to allowance and gratuityof husband conditional.

95 (3) Adopted daughter not included in the lineof succession to receive extraordinary


ANNEX Page 40

pension.

95 (6) Married sisters not included in the line ofsuccession to receive extraordinarypension.

99 (2) Married daughters fall behind in the lineof succession to pension and otherbenefits.

Rule 11 (3) Postal Savings Bank Regulations, 2033, Rule 58(3) Armed PoliceRules, 2060, 56 (3), 57 (1), Rule 59 (2) Rules of Service of Tribhuvan UniversityTeachers and Staff, 2050, Rule 7(6) Nepali Army (pension, gratuity and otherfinancial rules 2033, Rule 53 (1) Legislative Parliament Secretariat Act 2064(2007)

Women are discriminated against on thegrounds of marital status for receivingpension and gratuity.

Rule 65, Rules Relating to Staff of the Office of Auditor's General, 2050 (1994);Rule 106 Education Regulation, 2059 (2002); Rule 59, civil Service Rules, 2050(1993); Rule 105 Armed Police Rules 2060, (2003), Rule 34, LaborRegulation,2050 (1993); Rule 35 Labor Regulation Relating to Tea Estate, 2050(1993); Rule 51, Nepal Health Service Regulation, 2055 (1998); Rule 244, LocalSelf Government Regulation, 2056 (1999); Rule 16, Regulation Relating toWorking Journalist 2053 (1996)

Discriminatory provision regardingmaternity leave.

No. 8, Act Relating to Remuneration, Terms and Conditions of the Judges ofSupreme Court, 2026 (1969), No. 14,Act relating to Remuneration, Terms andCondition of the Attorney General, 2052 (1995); No. 15 Act Relating toRemuneration, Terms and Conditions of the Office Holders of ConstitutionalBodies 2053 (1996), Rule 10, Rules Relating to Additional Post Offices, 2034(1977); Rule 7 B, Army Leave Rules, 2019 (1962),

No provision for maternity leave

Rules 3(1), (2), (3) (4), Rules Relating to Staff of the Office of Auditor General,2050 (1994); Rule 2(b), (c), Passport Rules, 2027(1970), Rule 2(f), Armed PoliceRules, 2060; Explanation to Rule 55, Rules of Service of the TribhuvanUniversity Teachers and Staff, 2050, Rule 2(d), Rashtriya Samachar SamitiRegulations, 2041, Rule 2(f), Rules relating to Payment of Compensation to Non-governmental Persons, 2024, Rule 2 (b), Royal Nepali Army (Daily and TravelAllowances) Rules 2033;Rule 2(b) Royal Nepali Army ( Pension, Gratuity and Other Facilities) Rules,2033; Rule 4(1) (b) explanation, Nepal Citizenship Regulation2063 (2006)

A married daughter is not considered afamily member in the definition offamily in various rules and regulations.

Rules 16, Appellate Court Rules, 2048 (1991) Only the father's name is recognised foridentification of documents relating tolegal proceedings.

No. 2 (c) Rapti Doon development Area Land ( Distribution and Sales) Act, 2024(1967)

Definition of family includes unmarrieddaughters under the age of 35, onlywhere the parents are alive.

No. 2 (e) Nepal Health Service Act, 2053 (1997) Married daughter, adopted daughtersand married daughters are not included inthe definition of family.

No. 4 (3) (4) Social Practices (Reform) Act 2033 (1976) Discrimination in punishment betweenthose who accept dowry from the bride’sfamily and those who accept dowry fromthe groom's family.

No. 2 (f) Nepal Interpretation of Statute Act, 2010 Definition of father excludes the fatherof an adopted daughter.

Rule 16, 107 Appellate Court Rules, 2048 (1991), Rule 14 (1), 19 (1), 19 (A), 41,Annex 4 (a) District Court Rules, 2052 (1995), Rule 31 Revenue Tribunal Rules,2030 (1974), Rule 6, 26 Labour Court Procedure Rules, 2052, Schedule 5 & 6Vehicle and Transport Management Act, 2049. There are many more cases whereonly the names of father, grandfather or husband are accepted for identificationand verification of legal documents.

In these rules, only the name of thefather, and/or grandfather, and/orhusband is recognised for identificationand verification of application forms andlegal documents.

Schedule 1 (a), (b), 2,3,4, 5 (a), 5 (b) Arms and Ammunition Rules, 2028 (1972) Application forms are designed tosuggest that only men are eligible forpurchasing, selling or obtaining licensefor arms and ammunition.

Art. 36 (a), 36 (1), (2), (3), 36 (b), b (3), b (4), 36 (c), (d), (e), e (1), e (2), 36 )g(3), 36 (h), 36 (h/1) 36 I (1), 36 I (2), 36 (j), 36 (k/1) 36 k 2, 62, 81, 144 (2) of theInterim Constitution 2063 (2007)

Male-oriented words such as sabhapati,rastrapati have been used quite often invarious articles.

Around 50 Laws (including Acts and Rules) i.e. Royal Nepal Academy, Act 2050(1994), Royal Nepal Academy of Science and Technology Act, 2048 (1992),Nepal Administration Training Academy Act, 2039 (1983) have used derogatoryand male oriented words.

Many derogatory and male-orientedwords have been used in existing actsand rules such as kanyadan, aaimai,upakulpati, kulpati.


ANNEX Page 41

Annex

Major discriminatory laws based on caste and ethnicity

Provision Discrimination Provision Discrimination

Nepal is a multiethnic,multilingual, democratic,independent, indivisible,sovereign, Hindu andConstitutional MonarchicalKingdom.-Article 4 (1) of theConstitution of Kingdom ofNepal (1990)

By declaring Nepal aHindu Kingdom, theConstitution itselfprivileges Hinduism overother religions.

Amended Nepal becomes a secular state.

Art. 7 (2) of the InterimConstitution 2063(2007)

‘Cow’ is declared the nationalanimal. Since it is a holy animalfor Hindus, the provisiondiscriminates against otherreligions in the country.

Art.14 (2) of theInterim Constitution,2063 (2007)

Discrimination on the basis ofcaste (particularly the practice ofuntouchability against so-calledDalits) has not yet been addressedwith regard to the private sphere.

The Nepali language in theDevnagari script is thelanguage of the nation ofNepal. The Nepali languageshall be the official language.-Article 6 (1) of theConstitution of Kingdom ofNepal (1990)

Non recognition of ethniclanguages as ‘officiallanguages of the nation’.

Art. 5(2) of the InterimConstitution of Nepal,2063 (2007)

Nepali language is recognised asthe national official language. Thesimilar provision continued.However, the Constitutionrecognised other languages asofficial languages of the LocalGovernment.

Each community shall have theright to operate schools up tothe primary level in its ownmother tongue for impartingeducation to its children.- Article 18(2) of theConstitution of Kingdom ofNepal (1990) and Section 7(1)of Education Act (1972)

The Constitution itselfpermits education in themother tongue only up tothe primary level.Moreover, it does notoblige the state to fundsuch schools.

Art 17 (1) InterimConstitution of Nepal,2063 (2007)

Government expressedcommitment to funding educationin mother tongue, however,education in mother tongue hasonly been ensured in basiceducation.

Art. 23 Right toReligion, InterimConstitution of Nepal2063 (2007)

The right to choose and renouncea religion is not clearly spelledout. The same provisionscontinued.

…punishments shall not bemore or less merely based onpeople’s higher or lowerstatus…..- Preamble of the Civil Code(1963)

Civil Code itselfrecognises people’s higheror lower status, eventhough the intention is forequality in punishments.

Preamble, Civil Code2020 (1963)

Caste-based social hierarchy stillexists.

(No person) shall deliberatelyslaughter cows, or bullocks, orinstigate others to slaughter, orattempt to slaughter, or takecows and bullocks to foreigncountries with the intention ofslaughtering them, or take themto foreign countries and killthem.- No 1 of Chapter onQuadrupeds in the Civil Code(1963)

Only cow slaughtering isdeclared to be an offencepunishable by up to 12years of imprisonment.

No. 1 Chaupayako(Quadrupeds)continued

Prohibition of slaughtering, orinstigating or attempting to killcows or bullocks has beencriminalised on the basis of Hindureligion. This disregards theprecepts and practices of otherreligions.

In case any person is found tobe raising a weapon or doinganything else with an intentionto slaughter cows or bullocks,he/she shall be prohibited from

Killing of human being isjustified for the protectionof cows and bullocks.

Continued the sameprovision. Theprovision is not yetamended even thoughNepal has been

Continued the same provision.The provision is not yet amendedeven though Nepal has beendeclared a secular country.


ANNEX Page 42

slaughtering them. In casehe/she refuses and usesweapons against the personprohibiting him/her, the lattershall not be deemed to havecommitted an offence if he/sheattacks the slaughterer and ifhe/she acts or strikes at (thewould be slaughterer) and killshim/her.- No 4 of Chapter onQuadrupeds of the Civil Code(1963)

declared a secularcountry.

Whoever takes cows, bulls,bullocks or calves of anycategory to a foreign territoryfrom Nepal and slaughtersthem, or cause them to beslaughtered, he/she shall beliable to a punishment ofimprisonment for 6 years.- No 10 of Chapter onQuadrupeds of the Civil Code(1963)

Extra-territorialjurisdiction is created forcow slaughter. Ifsomebody killed thecow/bullocks even inforeign land s/he is liableto six years’imprisonment.

The same provisioncontinued, not amendedyet.

The same provision continued,not amended yet.

No 11 of Chapter onQuadrupeds of the Civil Code,1963

Anyone who kills a cowor bull is liable to 12years’ imprisonment.Anyone who permits ororders the killing of a cowor bull is liable to sixyears of imprisonment.

The same provisioncontinued

The same provision continued

No. 12 of Chapter onQuadrupeds of the Civil Code,1963



No 13 the Same The same provisioncontinued








No one shall disrupt socialcustoms fraudulently orcoercively or commit or causeany such act to be committed.Whoever commits, or causesanother to commit such an actis liable to a punishment ofimprisonment for up to oneyear or a fine of up to onethousand rupees.- No 10 of Chapter onMiscellaneous Provisions ofthe Civil Code (1963)

Dalits are excluded fromtemples and other publicplaces on the basis of thisprovision as it protectssocial customs.

The same provisioncontinued, but thesituation has changed.Some district courtdecisions have allowedDalits to go to templesand public places.Those who restrictDalits from entering atemple have facedpunishment in somecases after the People’sMovement, 2006.

The same provision continued,but the situation has changed.Some district court decisions haveallowed Dalits to go to templesand public places. Those whorestrict Dalits from entering atemple have faced punishment insome cases after the People’sMovement, 2006.

Raj Guthi lands, as well asKipat lands which lack officialdocuments, are equivalent toRaikar.- No 1 of Chapter on LandEvictions of the Civil Code(1963)

This has led to the loss ofethnic based communal(Kipat) ownership asRaikar can be used,transferred, and disposedof by anyone.

The same provisioncontinued thoughdiscussion on theownership of ethnicgroups on naturalresources is ongoing.

The same provision continuedthough discussion on theownership of ethnic groups onnatural resources is ongoing

In case anyone desires to enteran ancient historic, artistic orimportant religious place,whether owned by thegovernment or by a private

Dalits are excluded on thebasis of this provision, asit states one may enterreligious places only iflong-standing custom is




ANNEX Page 43

person, he/she may enter if thisdoes not disrupt the traditionalcustom of the concerned personthat has been practiced for along period.- Section 10 of the AncientMonument Protection Act,2013 (1956)

not disturbed.

Kipat land can be registered astax levied land (Raikar) bymeans of deed.- Section 3(1) of the LandReform Act, 2021 (1964)

Withdraws the restrictionon selling Kipat land.

The Act relating to PashupatiArea Development Fund, 2044Section 17 (a) 1

The main priest (mulbhatta) shall have the dutyto pray the Pashupatitemple. Bhatta is selectedfrom the Brahmincommunity.

The same provisioncontinued.

The same provision continued.


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Annex ______The Govt Cases Act, 2049 (1992)

Art. 31. Matters related to cases other than stipulated in Schedule 1or 2

1. In the cases to be filed by the Government of Nepal, except the cases stipulated in Schedule 1 or 2 if anyofficer has been designated by the Government of Nepal or by law to file a case or to collect evidence,then through that Officer, and if no such prescription has been made, the concerned Office in –charge shallcollect the evidences and produce to the government attorney the file and evidence with his/her opinionconsidering the limitation to file suit (firad patra) or charge sheet for a decision whether to file a case ornot.

2. Sub-section (2) of Section 17 of this Act shall be applicable to make a decision whether to file a case ornot on the basis of the file received pursuant to sub-section (1)

3. After receiving the file pursuant to Sub section (1), the decision whether to file a case or not shall bemade. If a case is to be filed, the received file shall be returned within the period not exceeding the timeperiod to file a case, clearly mentioning under which law, who shall be prosecuted under which charge.

4. After receiving a decision to a case from the government Attorney pursuant to Sub –Section (3), chargesheet or law suit shall be prepared and get signed by the person designated by the prevailing laws and ifthere is any detainee, s/he shall be produced before the court and the case shall be filed within time period;and a duplicate copy of the file shall be made available to the Government Attorney.

5. In case the Government Attorney decides not to file case, the file shall be kept safe until the file isprescribed.

Schedule-1

1. Case related to the Attempt on Throne or Life of the Royal Family.2. Case Punishable under Crime Against the Sate and Punishment Act, 20463. Case punishable under the Chapter on Homicide of the General Code (Muluki Ain)4. Case punishable under the Chapter on Rape of the General Code5. Case punishable under the Chapter on Theft of the General Code ( other than Adultery)6. Case of arson or attempted arson of a house or government documents.7. Case relating to cow slaughter or the case punishable under no. 8 of the Chapter on Cattle of the General

Code8. Case if damaging or misappropriating Government or other public property9. Case relating to weapons and arms and ammunition10. Case punishable under the Chapter on Counterfeit Currency of the General Code11. Case of forgery of the Government seal/signature or any paper with such seal/signature or any paper with

the signature of a government, irrespective of whoever possesses those documents.12. Case of Proselytizing (Dharma Paribartan) or attempted proselytizing by creating disturbance in any other

religion or getting people converted or an attempt of that.13. Case relating to gambling.14. Case punishable under the Chapter on Trafficking of Human Being of the General Code.15. Case punishable under Postal Act, 2019.16. Case punishable under Espionage (Jasusi) Act, 201817. Case punishable under Nepal Citizenship Act, 2020.18. Case punishable under Ancient Heritage Protection (Prachin Smarak Samrkshan) Act, 2013.19. Case of forgery or deceiving arisen out of any case stipulated under Schedule 1 or 2 of this Act.20. Case punishable under Some Public (Offence and Punishment) Act, 2027.21. Case punishable under narcotic Drugs (Control) Act, 2033.22. Case punishable under Necessary Service Regulation Act, 2014.23. Case punishable under Black Marketing and Some Other Social Crime and Punishment Act, 2032.24. Case punishable under Disabled People Protection and Welfare Act, 2039.25. Case punishable under Privacy of Documents Act, 2039.26. Case punishable under Passport Act, 2024.27. Case punishable under Chapter on Cheating of the General Code.28. Case punishable under no. 2 of the Chapter of Matrimony of the General Code and case punishable under

no. 10 of the same Chapter relating to polygamy practiced in any way.29. Except the case punishable under the Chapter on Homicide and Cattle (Four-footed animal), the case

punishable under prevailing laws relating to transportation when human being, cow, ox and bull have beenkilled.

30. Case punishable under section 10b of Adal of general code.31. Case punishable under Human Trafficking (Control) Act, 2064.32. Case of Peculation or misappropriation of cash or kind of bank or autonomous body with full or partial

ownership of the Government of Nepal, in collusion or without such collusion with the staff of theconcerned bank or body by any person.

33. Case of forgery and cheating by Submitting forged documents at a bank or any other autonomous bodyunder full or partial ownership of the Government of Nepal.


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34. Case of Pick Pocketing.35. Case stated in any Act as “to be considered to have been included in this Schedule”

Cases which shall be included within this provision:a. Case pursuant to Clause 1(a) of Sub-Section (1) of Section 17 of Education Act, 2028.b. Corruption case under Commission of the Investigation of Abuse of Authority Act, 2048 (with Second

Amendment of the Act).c. Case under Forest Act, 2049.d. Case under The Act Relating to Electoral Rolls, 2063.e. Case pursuant to Sub-Section (5) of Section 47 of Telecommunication Act, 2053 (Act effective from

2054.07.18).f. Case under Consumer Protection Act, 2054.g. Case under Transplant of Human Organ (regulation and restriction) Act, 2055 (Act effective from

2058.10.22).h. Case under Animal Health and Livestock Act, 2055.i. Case under Iodized Salt (production and distribution) Act, 2055.j. Case under Animal Slaughter House and Meat Inspection Act, 2055.k. Case under Electricity Theft Control Act, 2058.l. Offense pursuant to Section 95 of Nepal Rastra Bank (Central Bank) Act, 2058.m. Case under Chapter – 23 of Income Tax Act, 2058.n. Case under Section 27 and Section 28 of Copyright Act, 2059.o. Any other criminal cases in which the Government of Nepal is plaintiff under this Act as specified by the

Government of Nepal by notification in Nepal Gazette from time to time. Case of deformity (maiming) or injury of any human being by a vehicle. Case under Necessary Goods Protection Act, 2012.

Case Includeda. Case under Explosive Substance Act, 2018.b. Case pursuant to Section 9.a of Civil Aviation Act, 2019.c. Case under Donation (Chanda) Act, 2030.d. Case of Deformity (maiming) under chapter on Battering (kutpit) of General Code.

Case under Lottery Act, 2025. Offense of publication without certificate pursuant to Section 7 and Offense pursuant to Section 14 and 15

of Press and Publication Act, 2048. Case punishable under Chapter on Etiquette (Adal) of General Code.

Schedule – 21. Case relating to Government Land Concealment.2. Case relating to Concealment of Land Tax.3. Case under no. 2 and 3 of the Chapter on Etiquette (Adal) of the General Code.4. Case under no. 35 of the Chapter on Transaction Behaviour of the General Code.5. Case under on. 12 of the Chapter on Land Cultivation of the General Code.6. Case under no. 16 of the Chapter on Land Allocation of the General Code.7. Case under no. 17 of the Chapter on Inheritance of Heirless Property of the General Code.8. Case under no. 1 of the Chapter on Hidden (Welfare) Treasure of the General Code.9. Case relating to Concealment of Government money or locus standi of the Government.10. The civil case in which the Government of Nepal determines itself to be plaintiff by publishing notice time

to time in the Nepal Gazette


ANNEX Page 46

D

JICA’s Comments on Nepalese Civil Law Reforms and Improvement Taskforce


ANNEX Page 47

JICA’s Comments for UNDP Outcome Evaluation

September 2010

Please note that the following comments are based on the observation from our activities on Japanesecooperation for the Nepalese Civil Law Reforms and Improvement Taskforce on Drafting Civil Code, and arelimited to the issues of the Draft Civil Code.

1. In general, please provide your opinion of how well the process worked. Were the Government ofNepal partners receptive to advice from the JICA technical experts? Did you feel that youropinions/technical expertise was valued by the Government?

The legal cooperation between the Nepalese Civil Law Reforms and Improvement Taskforce (TF) and theJapanese Advisory Group (AG) started by making the overall as well as clause-by-clause comments to allthe provisions of the Preliminary Draft of the Civil Code of Nepal (PD) which consisted of around 500provisions prepared by the TF supported by UNDP. The TF and the AG have been intensively exchangedideas about the basic structure for the revised Draft, its arrangement of chapters, revisions of each clause,and the introduction of new provisions. The TF and the AG have met at least once a month by way of TVmeeting, seminars in Nepal and Japan in addition to the repeated exchanges of revised provisions andcomments to them by way of e-mail.

It took nearly six months for the AG to read carefully all the provisions in PD and make comments to eachclause by using the Excel format files. After that first process the TF completed the revised Draft and all theprovisions of it have been read and commented again. This second process took more than three months.As a result the TF published the First Draft of the Civil Code of Nepal which has a streamlined structure of sixParts and contains around 715 clauses. It was provided under the Regional Consultations and the NationalConsultations which were held from December 2009 to March 2010.

Throughout the process as summarized above, the TF and the AG have fostered a very cooperative schemewhich is based on the mutual respect for each history and system of law. The TF has taken the initiative ofdrafting the Civil Code and the Japanese cooperation has been based on the interactive communicationbetween the TF and the AG in a spirit of respecting the ownership of the partner country.

The TF has a clear idea that the Nepalese own cultural values and practices should be reflected in the draftwhile rearranging them with the emerging ideas and international standards. The approach taken by the AGin providing technical advice was to show the TF alternative options/issues to be considered for the draft bythe TF, and those options suggested by the AG have been sincerely taken into consideration, intensivelydiscussed between the AG and TF, and carefully reviewed and examined by the TF members before beingincorporated into the revised Draft.

The TF appreciates such Japanese cooperation for many reasons, particularly, the comparative approach,whereby the AG provides the TF not only with Japanese practices but with many other countries' exampleswhich may be worth considering from the viewpoint of Comparative Law. For that purpose the AG offered atool kit that contains civil law provisions of many other countries including the Civil Code of Germany,France, the Netherland, Switzerland, Russia, Italy, the Philippines, Quebec and so on. It also includes privatelaw statutes in Common Law countries such as India, U. K. and the U. S. A., along with international rules oncontract. It was highly valued by the TF, in addition to two-way communication between the TF and the AGas mentioned above.

2. In your opinion, does the current Draft of the Civil Code represent in any way an advancement forwomen and minorities in Nepal? for human rights?

One of the main features of the Draft Civil Code is the emphasis of guarantee of fundamental human rightsand equal treatment of women and minorities, shown in the provision concerning Civil Rights Part1, Chapter3 as follows:

1. To be equal in the eye of law:(1) Every citizen shall be equal in the eye of law(2) No citizen shall be excluded from the equal protection of law.

2. Discrimination not to be made:(1) No citizen shall be discriminated in the application of general law on grounds of religion, color,caste, tribe, sex, origin, language or ideological conviction.


ANNEX Page 48

Discriminatory provisions against women in marriage and divorce, such as daughters should return inheritedproperty after her marriage (while there is no provision for the sons returning the property after marriage),have been eliminated in the Part 3 the Family Law in the Civil Code Draft. ‘’Only men are entitled to remarryif the medical board certifies that the couples have no children within ten years of their married life in case ofnot having children’’ is another example of discriminatory provision which has been eliminated from theMuluki Ain.

Additionally, a suggestion from the AG to delete a clause that 'if woman has attained 25 years while gettingmarried, the age difference should not be more than 20 years with the man' in Chapter 1, Part 3 on theProvisions Concerning Marriage, PD, has been accepted after the hot discussions exchanged between theTF and the AG, and its deletion has been reflected in the Civil Code Draft.

The draft might not fully meet all the international standards. However, given that it is important to producethe National Code which will take root in the Nepalese culture and society, we respect and support the ideaof the TF that the best way of civil law reform is a gradual process of reformation to the existing laws over thetime including issues of women and minorities, versus a drastic repeal and replacing of old ones. Therefore,we would assess that the current draft contains best possible provision of articles including the gender andminority issues for Nepal at this point. The AG will be keeping the communication with the TF for the furtherreform to the present Draft.

3．In your opinion, what was the most difficult aspect of the draft process? What is missing fromthe current Draft of the Civil Code that you would have liked to have seen incorporated in the Draft?What aspects of the current Draft of the Civil Code do you feel are still problematic?

The draft has two characters. One is accommodating more advanced ideas and concepts, and preservingtraditional values is the other. The draft represents a carefully considered mixture of two sides.

The draft may not be perfect in terms of all international standards. However, as stated previously, theprocess of legal and judicial reform is incremental and the current Draft is showing the remarkable progressto be actually implemented for the people in Nepal at this moment.

For the next step, there seems to remain some basic institutions to be included in the Civil Code of Nepal inthe future. For example, in the Family Law, the guardianship, curatorship and assistance for protecting thebenefits of mentally disabled persons should be worth considering. In the Property Law, some additionaltypes of collateral such as statutory liens may be useful for the transactions among the citizens. Theprovisions of donation may well be moved from the Property Law into the Contract Law by rearranging as atypical type of gratuitous contract, while the provisions concerning pledge may be enriched and moved fromthe Contract Law into the Property Law.

However, both the TF and the AG understand that those remaining topics will be treated in the continuingdiscussion for the further revisions to the present Draft.

4. Based upon your experience and knowledge, can you make any comparisons or contrasts(negative or positive) between the legislative drafting process that you encountered in Nepal and thelegislative drafting processes of Japan? of other jurisdictions? Do you feel that the legislativedrafting process of Nepal is reflective of international “best practice” regarding legislative drafting?

Nepal has a careful legislation process which seems to have developed in the Nepalese tradition. It includesthe drafting by the TF, national consultations to be held in different regions, expert consultations,consideration in the Law Commission after the submission to the Cabinet so as to become a bill. If the bill issubmitted to the Parliament, it will be discussed in the law committee in the Parliament. The AG appreciatethe process from the viewpoint of comparative law, though it has a room of further improvements to be madesuch as by the more detailed record of discussions in each meeting of the TF and other organizations in thelegislation process, by adding a brief explanation to each clause of the Draft and so forth.

In addition, as a result of drafting work with an effort to produce the civil code, which will take root in thesociety, the draft has been made to harmonize the Nepalese traditional rules with principles that arebecoming common in the globalizing society. Such codification style may be able to provide a leading patternof making the Civil Code by arranging the Western elements and the non-Western elements to be emergedin the developing countries and countries in transition.


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E

DRAFT Mapping of Key Activities of UNCT in Nepal on Rule of Law

DRAFT Mapping of Key Activities of UNCT in Nepal on Rule of Law

Source: UNDP Nepal Office of the Resident RepresentativeJuly 2010

Agency Ongoing Activities Planned Activities1 OHCHR 1. Rule of Law and Accountability

-Raising awareness among Security Forces through trainings on their humanrights obligations-Preventive engagement including through field presence and continuedadvocacy to avoid/end violence and respect human rights-Monitoring of serious incidents, demonstrations, political gatherings, events,rallies, etc-Support prosecution of key emblematic cases-Support constitution making process to ensure provisions guaranteeing ruleof law and accountability- Provide support to the Government to draft torture bill- Monitoring and advocacy of cases of Sexual and Gender Based Violence

2. Transitional Justice-Providing technical support to the Government for establishing TransitionalJustice mechanisms-Supporting victims group to engage in Transitional Justice Process-Trainings, promotional and advocacy programs on TJ to the CSOs andvictims groups,-Mapping of human rights violations during the conflict in Nepal

3. Support to National Institutions- Support capacity building of National Human Rights Commission (NHRC)through SC NHRC Project- Capacity building activities for National Women Commission and NationalDalit Commission- Training to Nepal Bar Association, Supreme Court and legal institutions onapplication of human rights on their activities

1. Rule of Law and Accountability-Support establishment of the internal Vetting mechanisms inArmed Police Force and Nepal Police- Support Women Human Rights Defenders in debate on draftDomestic Violence Bill- Monitor Government initiatives on the implementation ofSupreme Court orders on Discrimination against Women

2. Support to Transitional Justice process- Support the Government for the preparation of Reparation Policy- Provide technical support to Commission of Inquiry onDisappearances and Truth and Reconciliation Commission, whenestablished

3. Support to National Institutions- Support capacity building of NHRC through SC NHRC Project- Provide technical support as well as organize capacity buildingactivities for National Women Commission and National DalitCommission on human rights issues

2 UNDP 1. Strengthening Capacity of the National Human Rights Commission(Partner organization: OHCHR)-Formulating human rights audit and compliance plan to review governmentplans and policies-Strengthening capacity of the NHRC to monitor human rights treatyobligations-Building capacity of the NHRC for the protection and promotion of civil,political and ESC rights- Reviewing of discriminatory laws in line with international human rightsstandards

1. Strengthening Capacity of the National Human RightsCommission (Partner organization: OHCHR)- Develop HRBA training manual- Review Government plans and policies from human rightsperspectives- Support NHRC for the implementation of the HR treatycompliance- Develop policies and guidelines for the NHRC on investigation,monitoring and complaint handling and support clarifying backlogcases- Review selected national laws from human rights perspectives


ANNEX Page 51

2. Enhancing Access to Justice for the Consolidation of Peace in Nepal(Partner Organization: UNIFEM).-Strengthening national capacity to enhance execution of court decisions- Supporting victims and witness protection programme- Providing technical assistance to the government on establishing TJmechanisms- Capacity development of Rule of Law actors to respond to conflict relatedwomen’s human rights abuses, including sexual violence- Awareness raising on Anti-Domestic Violence Act- Providing a comprehensive set of services for access to justice to the mostvulnerable population-Supporting the government to review some selected laws inline withinternational human rights principles

2. Enhancing Access to Justice for the Consolidation of Peace inNepal (Partner Organization: UNIFEM).- Develop and implement capacity building strategy of SupremeCourt, development of database of cases and monitoringmechanisms as well as training to law enforcement officials forimplementing judicial decisions- Prepare a model witness protection program for conflict-related,organized crime and GBV cases and train court administrationstaff, prosecutors, and law enforcement officers in providingwitness protection services-Initiate a referral network for victims’ legal and psychosocialsupport between courts, prosecutors’ office, law enforcement,legal aid providers and CSOs.-Review draft TRC bill from human rights and gender perspectiveas well provide technical assistance to TRC when established- Conduct training for judiciary, prosecutors and law ofenforcement officials on GBV reporting, investigations andprosecutions-Roll out in-camera hearing guidelines in select district courts-Develop and strengthen referral network for GBV legal andpsycho-social recourse, between paralegal committees, policewomen’s units – prosecutions, health & psycho-social serviceproviders in select districts-Support for creation of legal aid fund in 3 districts.- Establish legal resource and information centres at 4 districts- Train legal aid providers to deal with GBV, discrimination andland dispute cases.-Support Ministry of Law and Justice in implementation of theMediation Act as well as setting up the central secretariat and 2local secretariats to roll out the programme- Conduct a study of local traditional justice practices in 3 districtsto provide a model for formalizing engagement with localinstitutions and implement pilot programme


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3 UNICEF 1. Child Protection-Supporting establishment of paralegal committees-Supporting child clubs and Child Welfare committees-Improving justice for children through greater access to human-rights-basedjuvenile justice mechanisms including establishment of juvenile benches-Supporting the government to establish monitoring and reportingmechanisms at the district level

2. DACAW-Support decentralized polices and provide technical support-Child Friendly local governance in selected districts- Radio program and public awareness programs on children governance

1. Child Protection- Expansion of Paralegal Committees in all 75 districts (currentlyin 23)

- Establishment of district resource groups in 52 districts who willfacilitate access to justice

- Capacity building of Judiciary, Government Attorneys, DefenceLawyers and Nepal Police on Justice for Children (UN CommonApproach for Justice for Children)- Support to finalization of Child Rights Bill- Support to National Plan of Action on Juvenile Justice in Nepal- Support for the inclusion of children and a child rightsperspective into transitional justice processes.- Support for recognition of child rights in legal review, inparticular penal and civil code.

2. DACAW- Support establishment of local committees inclusive of childrenand women.- Undertake gender/ social audits of District DevelopmentCommittees and selected CAP VDCs.- Promote public hearing events by strengthening downwardaccountability and participatory monitoring processes.

4 UNODC

5 UNIFEM6 UNMIN7 UNHRC 1. Refugee Law

-Promoting accession to the 1951 Refugee Convention / 1967 Protocol andadoption of domestic legislation pertaining to refugees

2. Immigration Law-Ensuring that immigration law does not criminalize the presence of refugees

3. Citizenship / nationality Law-Ensuring that the draft constitution / citizenship act do not create situations ofstatelessness

1. Refugee Law-Sponsoring a refugee law programme at Tribhuvan University-Faculty of Law,- Preparation of model legislation on Refugee law and advocacywith authorities and NGOs

2. Legal Support to Refugees-Challenging the legality of arrest of refugees in court

3. Citizenship / nationality Law-Providing written comments on the current draft constitution andadvocating with the CA members and leaders of political parties.

FFactsheet on the Centre for Constitutional Dialogue (CCD)


ANNEX Page 54

The Centre for Constitutional Dialogue CCD

The Centre for Constitutional Dialogue (CCD) is a national institution and resource centre established tosupport Nepal’s constitution making process through providing training opportunities, expert advice, information,dialogue space as well as promoting public awareness. It is open to the Constituent Assembly (CA) members,civil society, and anyone who is interested in the constitution making process. The CCD is an initiative by the UNDevelopment Program (UNDP) project on Support to Participatory Constitution Building in Nepal (SPCBN).

dialogue space for all Nepalese interested in the constitution making process.

The CCD at a Glance Built neat the CA and in a central location with easy access for visitors, the CCD has to date received

more than 40000 visits. Through a team of 2 international experts, 5 full-time Napali experts and a roster of part-time Nepali and

international experts, the CCD provides technical assistance to CA members from all parties andcommittees, to individual members and to members of civil society; it has met formal requests forassistance for key CA committees, including the constitutional drafting committee.

Through its training programs designed for CA members, the CCD has provided on request training inEnglish language, computer skills, mediation and consensus building and communication skills. Morethan 1000 CA members received “communicating with authority” training alone; it has also organizedtraining on negotiating for constructive consensus building for CA members and civil societyorganizations. To date, 101 CA members (65 Female and 36 Male) and 31 civil society representativeshave received training.

Through its library of more than 2,700 books and periodicals, the CCD provides information to its userson constitution building in Nepal and around the world.

The CCD has compiled additional resource materials and documents relating to topics of constitutionaldebate (i.e. federalism) and examples of constitutions from other countries on a CD-ROM that isavailable to stakeholders

Through its workshops and lecture programs, the CCD has organized more than 100 seminars on keyconstitutional themes and has hosted more than 300 interactions organized by national andinternational organization.

To address the issue of making information for available to Nepalese who do not read Nepali, or insome cases cannot read at all, the Project has prepared booklets on key constitutional issues availablein seven Nepali languages, as well as in podcast form

Through its website (www.ccd.org.np) and a Nepali language bi-weekly constitution building e-bulletin,the CCD provides up-to-date information not only on its activities, but on key constitutional issues of theday

Source: CCD “Overview-March 2010”

www.ccd.org.np


ANNEX Page 55

GET: Evaluation Team Schedule of Meetings Conducted in Nepal

(Richard Langan, Indu Tuladhar, Roshani Poudyal)


ANNEX Page 56

ET: Evaluation Team Schedule of Meetings Conducted in Nepal(Richard Langan, Indu Tuladhar, Roshani Poudyal)

Sunday 4 July

Time Event Place / Remarks8:30 Arrival Richard Langan by QR 352 and check in at Hotel

Summit13:30 Team meeting at the Summit

Monday 5 July

09:30 – 11:30 DSS Security Briefing for the OE team EOC11:45 – 12:30 Initial meeting with UNDP M & E Team UNDP Small

ConferenceRoom

16:00 – 17:00 Meeting with Country Director, UNDP UNDP, CD’soffice

Tuesday 6 July

No scheduled meetings - ET meets all day at UNDP as a team to conduct document review and finalization of EvaluationInception Report; ET prepares initial outline of Draft Evaluation Mission Report; ET allocation of writing responsibilitiesfor Draft Evaluation Mission Report.

Wednesday 7 July

0900 -10:00 Finalization of field trip arrangements UNDP: Tek, Suneel, M & E1000 - 1100 Meeting with Sharad C Neupane (ARR) and Tek

Tamata (Programme Analyst), UNDPUNDP

1130-1230 Meeting with NHRC project team NHRC1300-1400 LUNCH BREAK1400-1500 FREE SLOT15:00 – 16:00 Introduction of Evaluation Team to Evaluation

Reference Group / presentation & submissionof Inception Report

UNDP Conference Room(Programme)AIDB, Team Leaders, M & E team,KD, HS, Govt officials:• Subarna Karmacharya, NHRC• Lekhnath Paudel, Supreme Court)

Thursday 8 July

Thursday 8 July – Friday 16 July with 10 & 11, 17th non-working daysKathmandu Meetings with donors, ministries, additional follow-up meetings

at UNDP CO; Meetings with on-site project staff at UNDP funded projects inKathmandu and other stakeholders and beneficiaries; gathering of datasources; ET drafts lists of questions for each stakeholder to be interviewed;Evaluation Reference Group provides feedback on inception report and anysupplementary documents/information to ET; Planning for Eastern FieldVisit.9:50 – 10:15 Meeting with Keshab Dahal, Edwin Berry and

TeamA2J Office

10:30 -11:30 Meeting with Hon. Kalyan Shrestha (Justice) andNPD Dr. R K Timalsena

Ram Shah Path- Supreme Court -Confirmed

12:30-13:30 Lunch meeting with Caroline Vandenabeele,Head RCU, UN House

Cass Café, Across UN HouseConfirmed


ANNEX Page 57

1345-1445 Mr. Madhav Paudel (Secretary) and Mr. KedarPaudel (Joint Secretary)- Ministry of Law andJustice

Singh Durbar

16:00- 17:00 Mr. Bijaya Prasad Mishra (General Secretary), Mr.Yubraj Bhandari, Treasurer, Ms. ShantaShedhain, Member,

NBA, Ram Shah Path

Friday 9 July

9:30- 10:30 Meeting with Lars Peter Christensen, Programme Coordinatorand Mukunda Kattel, HR Advisor, Danida/ HUGOU( 4432131 (Anju)

Danida/HUGOU, Panipokhari

11:30 -12:30 Meeting with Sandra Bernasconi. Country Director, a.i., SDC SDC, Jawalakhel1315-1415 LUNCH BREAK14:30- 15:30 Sanjay Rana, Sr. Program Coordinator# 98510-48433 and

Rajju Malla-Dhakal, Programme Manager, ESP, SanepaTel: 5535010

ESP, Sanepa

16:00-17:00 Meeting with Maiko Takeuchi, Rep., JICA JICA, HariharBhawan,Pulchowk

Saturday 10 July

Non-working day

Sunday 11 July

Non-working day

Monday 12 July

9:00-10:00 Sangeeta Thapa, Programme Coordinator and Sama Shrestha,Programme Officer (UNIFEM)

UNIFEM Office

10:30-12:30 Andrew Palmer (Thematic Coordiantor of StrengthenNational Insitution Theme, Fred, Raju Chapagain and PravinaBajracharya- OHCHR

OHCHR,Chhauni

14:30 -:16:00 A joint meeting with• PPR Nepal -Rajendra Ghimire 9851110158• INSEC• FORHID• Feminist Dalit Organization FEDO 5520982• Dalit NGO Federation• HR Home• Advocacy Forum M. Mandira Sharma 4004007,4004008• CWIN-Ms. Sumnima Tuladhar 4282255,4278064• Maiti Nepal 4492904,4483564• HIm Rights 5555111• WOREC5006373,74• Disable Women's Rights 4435131• Apanga Mahasang -Sudarsan Subedi –9851059360

Venue : A2JProject Hall

1630-1730 Keith Leslie, Senior Civil Society Outreach Advisor,Constitution Project# 98510-24770

KSK Building,Pulchowk(Across UNHouse)

Tuesday 13 July

0900-1000 Bishal Khanal, Secretary, NHRC NHRC10:30-11:30 Meeting with Naina Kala Thapa, President, National Women's

Commission (President)# 4257628/4256701NWC, Ram ShahPath


ANNEX Page 58

12:00 -13:00 LUNCH BREAK1315-1415 Gauri Pradhan, Commissioner, NHRC NHRC14:30 -15:30 Mediation Centre Nepal MCN-Office,

Anamnagar16:00 - 17:00 Meeting with Satish Krishna Kharel, Bijaya Kanta Mainali and

Madhav Baskota (the then Secretaries-NBA)NBA- Ram ShahPath

Wednesday 14 July

11:00-12:00 Meeting with PM's Office (Human Rights), Madhu Regmi Singha Durbar

12:00-13:00 Meeting with the Ministry of Women Children and SocialWelfare Mr. Tilak Ram Sharma, Joint-Secretary

Singha Durbar

1600-1700 Kasumi Nishigaya, Gender Advisor, UNDP UNDP

Thursday 15 July

11:00-12:00 Meeting with UNFPA (Sudha Panta) Jhamsikhel14:30 -16:00 A joint meeting with A2J partners (CeLRRD, PPR, CAP-

CORN, LAAC, FWLD)A2J project

1600-1730 A2 J Project Team A2J Project

Friday 16 July

9:00-10:00 Meeting with David Billings, Director Democracy &Governance# 4131 and Bishnu Adhikari, AID DevelopmentProgramme Specialist (USAID)# 4007200 – Extn.4511

Maharagunj

10:30-11:30 Meeting with Dr. Bipin Adhikari, Director, NepalConstitutional Foundation, 9851115496 / 4410624 (W)

New Plaza,Kalikasthan

1230-1330 Meeting with Embassy of Finland , Mrs. Satu Pehu-Voima,Counsellor Development

Hotel Yak &Yeti Lounge

1500-1600 Legal Aid Lawyers at Hotel Himalayan Horizon, Dhulikhel#011 490 260/296

HimalayanHorizon,Dhulikhel

1730 Team meeting (Mr. Langan’s team) UNDP

Saturday 17 July

Non-working day

FIELD VISIT TO EASTERN REGIONRichard Langan, Edwin Berry, Indu Tuladhar, Roshani Poudyal)

Sunday 18 July – Wednesday 20 July

FIELD VISIT TO EASTERN REGION

Sunday 18 July0700 hrs Airport time0800 hrs Fly to Biratnagar by Buddha Air, Flight U4 7050855 hrs Arrival Biratnagar Received by

FOB vehicle.Binay Jha willjoin the team

1000- 1200 Meeting with District Bar Association Biratnagar-Devendra


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Koirala#9842023801

13:00-14:00 LUNCH1400 -1500 Meeting with District Bar Association , Morang1500 – 1600 District Police Office1615 – 1730 Meeting with Pilot Court Judges in Biratnagar Biratnagar –

Bhisma Prasai(Registrar)

Overnight stay in Biratnagar Hotel Xenial,Biratnagar#021-472950,51,52,53

Monday 19 July

1030 – 1130 Meeting with NHRC ( Regional Office), Biratnagar1145 – 1245 Meeting with CAP CRON at Morang and site visit for

paralegal committeeMorang (NirmalaAcharya)9842072636

1300 -1400 LUNCH14:5 Proceed to Janakpur and overnight Overnight stay in

Janakpur (HotelManaki# 041-521540

Tuesday 20 July

7:30 – 8:30 Meeting at JAWAS Mr. Naval Kishor– 9844020946

8:45 – 9:45 Meeting at NHRC (Sub-regional office) Mr. BuddhaNarayan SahaniHuman RightOfficerJanakpurTel 041527811/12Cell: 9807663298

9:45-12:15 Proceed to Bara Bhaiyaram Yadav(JJYC)9845101874

12:15 -12:45 LUNCH12:50 – 13:15 Meeting with JJYC JJYC Office13:15 – 15:00 Meeting with PLC members (Incl travel time) VDC1620 hrs Fly back to Kathmandu by Buddha Air, Flight No. U4 562 Simara Airport

Wednesday 21 July

1030-1130 David Sadoff, Country Director and Gopi Parajuli,Programme Manager, American Bar Association, Thapathali#4256878 (Bhuvanari, Office Manager)

1200-1300 Lazima Onta Bhatta, ARR, UNDP UNDP1300-1400 Lunch1730 hrs Depart for hotel Summit

Thursday 22 JulyNo scheduled meetings. Team workday to assess results of “Eastern Field Visit” and review documents and notes; ETbegins work on Draft Evaluation Report

Friday 23 July


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10:30-1130 Mr. Govinda Nepali, Member# 9741-144237 and Mr. RamKrishna Lakandri, Member, HR Desk, Ms. Udaya Ojha#Section Officer for Human Rights Desk# 9841218837,National Dalits' Commission #4473317, NDC- NewBaneswore

NDC- NewBaneswar

Saturday 24 JulyNon-working day

Sunday 25 July1400-1600 Meeting with Pilot Court Judges- Kathmandu District Court,

Babar MahalTO BE FOLLOWED BY A TOUR OF COURTFACILITIES AND INTERVIEWS WITH COURT STAFF

Kathmandu –Bharat Lamsal –4223932

Monday 26 July10:30-12:00 Meeting with the Directors and unit heads of NHRC –

• Mr. Bed P. Bhattarai, DirectorNHRC

14:30-15:30 Meeting with women lawyers and civil society representatives UNDPConferenceRoom

1630-1730 Mid point debriefing with Evaluation Reference Group UNDPConferenceRoomAIB, TeamLeaders, M & E,Keshab Dahal,Hemang Sharma,Edwin BerryGovt officials:• Subarna

Karmacharya,NHRC

• BipulNeupane,Suprem

e Court

Tuesday 27 July – Thursday, 29 July

FIELD VISIT TO MID/FAR WESTERN REGIONS

Tuesday, 27 July0730 KB Thapa will do the pickup from the hotel.0800 hrs Airport time0900 hrs Fly to Nepalgunj by Buddha Air, Flight U4451 Flight timing 1

hr.1000 hrs Arrival in Nepalgunj1030 – 1200 hrs Meeting with Mr. Sunil Shrestha and Mr. Vishowjeet Tiwari,

District Bar AssociationSunil Shrestha –9848027654Nepalgunj

1200 – 1300 LUNCH13:15 – 15:15 Meeting with Pilot Court Judges in Nepalgunj

TO BE FOLLOWED BY TOUR OF COURT FACILITIESAND INTERVIEWS WITH COURT STAFF

Nepalgunj, DilliShrestha(Registrar DistrictCourt) -9841469058

1515-1700 Meeting with representatives of civil society, legal aid HRPLSC office –


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organization, human rights organizations Top B Khadka –9858021742

Over night in Nepalgunj Hotel Batika,Surkhet RoadNepalgunj, Tel:081-521360 /522373 / 522318

Wednesday, 28 July0730-12:00 Site visit for paralegal committees and Meeting with HRPLSC,

NepalgunjHRPLSC office –Top B Khadka –9858021742 -

1200 – 1300 LUNCH1315 – 1415 Mr. Murari Kaharel - Director Regional Office, Nepalgunj NHRC

Nepalgunj1430 Proceed to Kailali

Overnight in Dhangadi Hotel Devotee,Hasanpur,Dhangadi- 5Tel: 091-521618/ 23918

Thursday, 29 July0800 – 0830 Meeting with NNDSWO, CeLRRd and PLCs and site visit NNDSWO office

, BalaramBhattarai –9858420675Suresh B.K.-9848422276,Kailali

0830 – 1200 PLC and Community Mediation visit (incl. travel time ) Bhattarai –9858420675Suresh B.K.-9848422276,Kailali

1200 – 1330 LUNCH (incl. travel time )Joint meeting with civil society and legal aid organisation

NNDSWOTraining Hall

1345 – 1430 Meeting with NHRC regional office:Dr. Tikaram Pokharel, Director and Team

Dhangadhi

1430 hrs To reach airport at 1455 hrs1555 hrs Depart to Kathmandu from Dhangadi by Buddha Air Flight

No. U4254

Friday, 30 July0930-1030 hrs Tula Bahadur Kandel, Director, Canadian Bar Association#

98510-54384Top Floor ofNepal BarAssociation,Ramshah Path

1030-1100 Dr. Ram Krishna Timilsena, Register, Supreme CourtTO BE FOLLOWED BY A TOUR OF COURTFACILITIES AND INTERVIEWS WITH COURT STAFF

Supreme Court,Ramshah Path

1130-1230 LUNCH Meeting with Mr. Vincent Calderhead, CountryRepresentative, International Court of Jurist (ICJ) #9808086635

1245-1345 LUNCH1400-1445 Mr. Sudeep Pathak# 9851036083 at his office, HURON#

4269948, East Gate of Singha Durbar, near Gorkha FMHURON, EastGate of SinghaDurbar, nearGorkha FM

1500 hrs Patrizia Benvenuti, UNICEF# 1141 UNICEF, UN


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House

1630 hrs Meeting with Ex-Commissioners:Mr. Kapil ShresthaNation Election Observation Committee, Kupondole ,opposite Himalaya Hotel, Tel: 5541502

NEOC,Kupondole

Saturday, 31 JulyNo scheduled meetings; team workday to assess results of “western field visit” and review documents and notes; ETcontinues work on draft evaluation report

Sunday, 1 August1000-1100 hrs Ms. Binda Pandey# 9841255599, Fundamental Rights

Committee, Fundamental Directive Principal Committee ,Singha Durbar

Parliament House,Bhawan No. 1 , RoomNo. 408, SinghaDurbar

Monday, 2 August0930 -1200 Keshab Dahal, NPM, A2J Venue: A2J Office1230-1330 Ram Prasad Neupane, Under Secretary of the Supreme

Court# Tel: 4252087 / Cell# 9841333820.Supreme Court

1330-1400 LUNCH1400-1600 UNDP SCNHRC NPM final meeting

ET conducts any remaining follow-up meetings and document collection with Kathmandu-based UNDP staff, orstakeholders.

Tuesday, 3 August1000-1100 Larry Taman, CCD1115-1215 hrs Mr. Sadhu Ram Sapkota# 4211178 / Mobile: 9851096262,

Ministry of Peace & Reconstruction, Singha Durbar1500-1600 Marcus Brand, CCD SPCBN Project

No scheduled meetings. ET meets as a team all day both days to discuss and test its findings, conclusions and lessonslearned; ET continues work on initial draft evaluation report both as a team and individually as needed.

Wednesday, 4 August (early morning meeting)1230-1300 Michael Brown UNDP

No scheduled meetings. ET meets as a team all day both days to discuss and test its findings, conclusions and lessonslearned; ET continues work on initial draft evaluation report both as a team and individually as needed.

Thursday, 5 August1715 hrs Larry Taman, CCD# 4785466/86/998 KSK Building,

Harihar Bhawan(Ankit Dhakal# 9849-388464)Confirmed(pickup RL at 0900 hrsfrom Summit for UNDP)

1900 Joanna Jolly, BBC Correspondent for Nepal Venue TBC

No scheduled meetings. ET meets as a team all day to prepare for debrief of UNDPCountry team; ET prepares PowerPoint presentation with main findings, conclusionsand lessons learned; ET reviews progress on preparation of Draft Evaluation Report.

Friday, 6 August

0900-1000 Mr. Robert Piper, RHCO RC’s Office,UN House

1000 – 1200 Debriefing for UNDP & Stakeholders UNConference


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Room

1200 – 1300 hrs Final exit briefing with UNDP CO Senior Management andStaff

UNConferenceRoomAIDB, JS,SCN, TT andDS

1400-1500 hrs Chief of Human Rights Cell, Nepal Army, Bhadrakali Bhadrakali1515-1615 Mr. Bendan H. Doherty, Chief of Party, PILPG Nepal UNDP1700- Mandira Sharma, Head of the Advocacy Forum, Gairidhara

# 98510-48475, Tel: 4004007/08Gairidhara


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H

Terms of Reference – Outcome Evaluation


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Terms of Reference – Outcome Evaluation

Country Programme Outcome: Responsive and accessible justice systems promote gender equality,social inclusion and the rule of law, including formal and informal processes

1. Background and Context

National context

Nepal has been working towards peace since the signing of a Comprehensive Peace Agreement (CPA) inNovember 2006 by the Government of Nepal and the Communist Party of Nepal, Maoists (CPN/M). Thishistoric agreement ended a ten-year armed conflict which killed about 13,000 people, brought about amajor set back in the development process, and most importantly, weakened social cohesion incommunities across Nepal.

At the root of the armed conflict in Nepal lay persistent inequality and exclusion from state mechanismsand development opportunities, and legal, economic, and social arrangements which restricted theinfluence and prospects of a large proportion of Nepal’s women and girls, Dalits, Janajatis (IndigenousPeoples), Madhesis (groups of plains origin), religious and cultural minorities, and the poor in general.More specifically, a study conducted on "Access to Justice during the Armed Conflict (2005) concludedthat lack of access to justice by the poor and disadvantaged was among the roots of the conflict, and thatin conflict, access to justice is as vital to saving people’s lives as access to food and water. The reportfurther concluded that access to justice will be key to peace-building.

Nepal’s leaders have recognized the importance of access to justice and human rights for sustainablepeace. The November 2006 CPA calls for a:

…political system that complies with universally accepted fundamental human rights, multipartycompetitive democratic system, sovereignty inherited in people, supremacy of the people,constitutional check and balance, rule of law, social justice, equality, independent judiciary, periodicelection, monitoring by civil society, complete press freedom, people’s right to information,transparency and accountability in the activities of political parties, people’s participation, impartial,competent, and fair concept of bureaucracy.

Likewise, the CPA also mentions the importance of protection and promotion of human rights and ofinternational humanitarian law. Furthermore, the CPA mandates the National Human Rights Commission(NHRC) to be an independent oversight body to monitor the implementation of the human provisionsenshrined in the CPA.

The Interim Constitution of Nepal 2007 also recognizes the importance of human rights, with Part 3devoted to human rights. Rights regarding justice, including free legal aid and the right to constitutionalremedy, are recognized as fundamental rights. The Interim Constitution has upgraded the NHRC as aconstitutional body to ensure the respect, protection and promotion of human rights and their effective


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enforcement. Part 10 of the Interim Constitution calls for an independent judiciary to exercise the powersrelated to justice.

The Three Year Interim Plan (2007/8-2009/10), in Chapter 6 on Social Justice and Inclusion, states theGovernment’s objective:

To improve the human rights situation of the people and communities at risk and those made to be atrisk by putting into practice the commitments made in the national and international levels by theState, for alleviating poverty and ending all forms of social and economic discriminations, deviations,crimes, exploitation and misbehavior.

and:To institutionalize a well developed human rights culture, by controlling violation of human rights inall sectors.

Chapter 10 of the Interim Plan highlights the long term vision for improved governance and access tojustice:

The long term vision is to make public, judicial and development administration more competitive,participatory, transparent, service-oriented, result-oriented, accountable, inclusive, disabled-friendlyand gender equity oriented.

Following the 2008 national Constituent Assembly elections, which also led to the declaration of asecular, federal republic, the elected Constituent Assembly is in the process of drafting a newConstitution for the “New Nepal.” The Assembly has formed 10 thematic committees, two of which, theFundamental and Directive Principles Committee and the Committee of Judicial System, are tasked withpreparing a draft report on fundamental rights and directive principles of the state and judicial system.The committee on the judicial system finalized and submitted its report to the Constituent Assembly. Thereport has mainly recommended the three federal structures of the court system including the differentspecial courts i.e. family courts and local courts to look into the issues of women and local people at large.Likewise, the CA Committee on Fundamental Rights and Directive Principles and State Policies alsosubmitted its report to the CA and recommended an independent and competent judiciary and theNational Human Rights Commission as the watchdog body of rule of law and human rights.

UNDP Support to Access to Justice

UNDP has been providing support in the area of justice through legal and judicial reforms and humanrights since the year 2001. UNDP’s Second Country Cooperation Framework (CCF) (2002-2006, extendedto 2007) specifically mentioned that UNDP would focus on enhancing capacities within the NHRC and thepreparation of a National Human Rights Action plan (NHRAP). The CCF also committed to support theGovernment’s efforts to develop a transparent and efficient system of justice and to strengthen the ruleof law.

This work was carried out by the following projects:

Strengthening the Rule of Law Programme (ROL; 2001-2005) - The ROL Programme wasdesigned to support reform at two levels: one, at the local level, to brings justice closer to thepeople through the promotion of alternative dispute resolution (ADR) by strengtheningarbitration boards, and, two, at the central policy level, by supporting the Ministry of Law andJustice (MoLJ) in drafting civil and criminal codes and building capacity of its staff onlegislative drafting and treaty negotiation. Drafts of the Civil Code, Civil Procedure Code,Penal Code and Criminal Procedure Code were prepared through the support of this project.(Work is continuing under the new Country Programme to support the MoLJ in finalizing thedrafts of civil and criminal codes and their procedures. The draft civil code has already beenprepared and submitted for the regional level consultations.)

Reform of the Judiciary Programme (RoJ; 2002-2007) - The RoJ Programme focused onimproved and closer access to justice by people by enhancing the efficiency of justice


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delivery and providing justice seekers qualitative, speedy and inexpensive justice through theoperation of pilot courts in seven districts, and through further legal reforms and capacitybuilding of judges and court staff. Work is continuing under the new Country Programme tofurther strengthen the pilot courts to ensure access to justice of women and the sociallyexcluded groups. Furthermore, capacity building of judges, lawyers, police, and governmentattorneys will be also carried out.

Enhancing Access to Justice through Mediation in Court Cases and Strengthening theCommunity Mediation Practices (A2J Programme; 2002-2007) – In an effort to further expeditejustice and reduce costs especially for the poor, the A2J Programme, funded through theDemocratic Governance Thematic Trust Fund (DG/TTF), included a study of communitymediation practices, necessary training support to community mediators and initiation ofcourt referred mediation in Nepal. With an objective to institutionalize the indigenous,community and court referred mediation systems, the project also supported MoLJ to draft amediation bill. The draft mediation bill was submitted to the Cabinet in December 2009. TheCabinet has sent it to the CA for the final process of enactment with some comments.

Capacity Development of the National Human Rights Commission (CDNHRC, 2002-2008).The CDNHRC project, supported by a large number of donors, helped the commissionestablish itself as a force for protecting and promoting human rights, during the difficultcontext of the armed conflict. The project supported the commission to set up its basicinfrastructure, its management and IT systems, and a network of four regional offices and fivedistrict contact offices for monitoring the human rights situation across the country. Thisincluded setting up a system for the commission’s core task of handling complaints andmonitoring human rights violations. The project also assisted the commission to fulfill itsmandates given by the Human Rights Commission Act 1997. In this regard, the project mainlysupported the commission to review the laws in line with international human rightsstandards, conduct human rights awareness and review the implementation status ofinternational human rights instruments. The project also supported the commission toformulate internal rules and regulations and map out its priorities and future activities instrategic plans, host discussions and report on the human rights situation, produce humanrights education materials. However, the lack of Commissioners for close to a year in 2007seriously affected the pace of reforms and work of the NHRC.

UNDP, under its current Country Programme (2008-2010), is supporting the process of making Nepal’snew constitution, as well as promoting initiatives to increase access to justice, amend discriminatory laws,and promote human rights, building on the achievements of the past projects. The intended outcome ofthe Country Programme is: responsive and accessible justice systems promote gender equality,social inclusion and the rule of law, including formal and informal processes.

To achieve this outcome, UNDP is focusing on the following:

Further support to the seven pilot courts which are to become models for replication includingbenchmarks on making the courts pro-poor, women-friendly, and inclusive in their servicedelivery;

Improved access to legal services at the local level, including through the creation andstrengthening of para-legal committees and expansion of mediation;

Support to review and amend legislation to meet international standards and treaty obligations; Providing access to justice for the victims of gender based violence by establishing legal aid

desks and building awareness of the implementing authorities and people at large on therecently-passed anti-domestic violence law.

Strengthening the National Human Rights Commission in monitoring, investigation,documentation and reporting of human rights violations

Strengthening the human rights treaty divisions, Developing human rights audit plan and indicators for the promotion of civil and political rights

and socio-economic and cultural rights Reviewing the laws in line with international human rights obligations


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The results framework for this component of the Country Programme is summarized below:

Intended Outcome Responsive and accessible justice systems to promote genderequality, social inclusion and the rule of law, including formal andinformal processes

Outcome Indicators Selected existing discriminatory laws are reviewed and amendedRatio of human rights cases resolved out of the total no. of casessubmitted to NHRC

Intended Output 1 Pilot court models graduated and ready for replication, andmediation system strengthened for enhanced access to justice forwomen and excluded groups.

Output Indicators # of months from filing to court decision in civil cases# of months from filing to court decision in criminal cases% of disputes solved by paralegal committees% of total cases submitted to paralegal committees submitted bywomen% of total cases submitted to paralegal committees submitted byDalits% of cases submitted by Dalits solved by the paralegal committees

Intended Output 2 NHRC capacity strengthened in monitoring, investigation,documentation and reporting of human rights violations

Output Indicators # of complaints of human rights violations investigated# of recommendations submitted to the Government# of reports published by the NHRC on monitoring and investigations# of discriminatory laws reviewed by the NHRC on human rightsgrounds and recommendations for amendment proposed# of public hearings organized by the NHRC on discriminatory lawsand on emerging issues

Intended Output 3 Selected existing laws reviewed and amendments drafted and newlegislation drafted as required by Nepal’s treaty obligations andother international human rights standards

Output Indicators # of revisions and new legislations drafted# of discriminatory laws amended or abolished

To produce these outputs, UNDP is currently supporting two projects – 1) Enhancing Access to Justice forConsolidation of Peace in Nepal (originally entitled Enhancing Access to Justice through Legal andJudicial Reforms), 2) Strengthening the Capacity of the National Human Rights Commission.

One of the areas of BCPR support under the new Strategic Partnership Framework is Rule of Law. As aresult, the Enhancing Access to Justice through Legal and Judicial Reform project was revised and renamedthe Enhancing Access to Justice for Consolidation of Peace in Nepal project. This revised, comprehensiveproject is designed to strengthen the justice system in order to support the ongoing peace process in thecountry. The revised project will strategically address the areas of 1) transitional justice; 2) gender justice;3) access to justice at the local level and 4) law reform. The objective of the project is to raise nationalcapacity to carry out transitional justice processes through enhancing execution of court decisions,victims support and witness protection programmes, and provide technical assistance to the Ministry ofPeace and Reconstruction (MoPR) for the establishment of Commission of Enquiry on the EnforcedDisappearance (CED) and the Truth and Reconciliation Commission (TRC). In this context the efforts willalso be directed towards integrating gender justice into peace-building agenda through capacitydevelopment of rule of law actors to respond to conflict-related women’s human rights abuses, includingsexual violence. Efforts will also support awareness raising on legal recourse including under therecently-passed Anti-Domestic Violence. At the local level, the project will concentrate on conflict-


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affected regions to provide a comprehensive set of services for access to justice to the most vulnerablepopulation including women and socially excluded communities. Programme components at local andgrassroots level will include providing free legal aid and mediation services, strengthening local paralegalcapacities and engaging with traditional justice mechanisms in conjunction with the ongoing UNDPlivelihoods project.

The Strengthening the Capacity of the National Human Rights Commission project was jointly developedwith OHCHR as the key provider of specialized technical assistance. This project will support the NHRC inimplementing its Strategic Plan 2008-10. The project will support improvement of the capacity of NHRCin the areas of i) auditing human rights compliance issues in legislation, policies, plans, practices andprocedures which will ensure respect for human rights by state actors, ii) ensuring the effectiveimplementation of the international human rights instruments to fulfill state obligations, iii) ensuringhuman rights in the forthcoming constitution and iv) protecting and promoting the civil, political andsocio-economic rights. This project will support the NHRC to build both its capacity to work withstakeholders and to meet its accountability and obligations through public opinions, inclusive workprocesses and reporting.

In addition, there are potential synergies between the work done under the Justice Outcome, and thework being done under the Peacebuilding component of the Country Programme. The latter includessupport to the constitution-making process, through the Support to Participatory Constitution BuildingProject, which, among others, is building the capacity of Constituent Assembly members to produce anew constitution. Other work is being initiated to strengthen local capacities for peace committees.

Currently, several UN agencies present in Nepal, among which UNDP, are exploring the ways ofengaging in a more coordinated fashion (as part of UN coherence) under the new Rule of Law initiativelaunched by the Rule of Law Coordination and Resource Group lead by the Deputy Secretary General ofthe UN.

Challenges and constraints

Support to access to justice and human rights has been challenging, in part due to the need tostrengthen partnerships with and build consensus between a wide range of actors. The new Access toJustice project was delayed during long consultations with multiple partners to agree on animplementation modality, and the project to support the NHRC was also delayed until July of 2009.

Although the conclusion of the CPA between the CPN(M) and the GoN in November 2006 marked theending of a ten-year long armed conflict, various forms of violations of human rights includingintimidation, extortion, abduction, property seizing, and beatings still persist across the country.Impunity is prevalent. The threat of another armed conflict in the region remains. Likewise, daily strikesand demonstrations affect the implementation of project activities.

The whole nation is in the process of constitution building. Constitution making is the key agenda at thismoment and many other agenda are taking a back seat. As a result, the activities regarding law reformssuch as finalizing mediation bill and civil and criminal codes have been delayed. Likewise the humanrights commission bill is still pending in the cabinet.

Another implementation challenge has been the frequent transfer of government staff. For example,many trained pilot court judges were transferred to non-pilot courts which adversely affected on thejustice delivery system.

2 Evaluation Purpose

The purpose of this outcome evaluation is to measure initial progress towards the intended outcome,assess UNDP’s contribution thereto, and make recommendations for adjustments to the programme andtargets, in light of an anticipated extension of the Country Programme by two years (till 2012) and of thenew UN Rule of Law initiative, in order to strengthen the programme’s relevance and potential impact onthe peace process and the building of the “New Nepal,” as well as UNDP’s partnership strategy in thisarea.


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3 Evaluation Scope and Objectives

UNDP has been working in the areas of access to justice and human rights since the year 2001, and thework under the current Country Programme is an extension of that work done under the previousprogramme period. Thus, the evaluation should look back as far as 2001 in order to assess thegroundwork laid for the current programme and the lasting results of that early work. However, as thecontext has changed considerably over the last eight years, the evaluation will focus more on the periodsince the signing of the Comprehensive Peace Accord in November 2006. The overall objective of theevaluation will be to assess the results, achievements, relevance to the overall peace process, andconstraints to UNDP’s interventions in the justice and human rights sectors since 2001, and mostparticularly since the end of the armed conflict, as well as to measure progress towards the outcome asdefined by the new Country Programme. As this is only the beginning of the third year of the CountryProgramme, it is not expected that the outcome of the current Country Programme will have beenachieved, and the evaluation will help UNDP adjust its programme in the remaining years of theextended country programme.

Taking into account the new areas of intervention planned under the BCPR support, the evaluation willalso assess the relevance and coherence of the additional interventions, and indicate if any other outputswould be required to achieve the outcome.

The evaluation should also look at other interventions in the sector by other key actors and assess theextent to which UNDP and partners have built on each other’s respective strengths to achieve theoutcome or to which they are currently overlapping.

4 Evaluation Questions

Relevance of UNDP’s interventions

In the context in which UNDP began its support to improve access to justice (2001 onwards), andparticularly in the Post-Peace Agreement context (late 2006 onwards), to what extent and in whichway has UNDP’s support to the justice and human rights sectors been relevant?

Has UNDP’s support been relevant for women and people from traditionally excluded groups?

Has UNDP been able to adapt its programming to the changing context to address priority needs inthe country?

Has UNDP done sufficient peace-building analysis to guide its work in the justice and human rightssector?

Is the revised access to justice project likely to be even more relevant? Will it be even more likely tobring benefits to poor women and people from traditionally excluded groups?

Outcome analysis

Are UNDP’s interventions designed to achieve the outcomes?

Are UNDP’s interventions on track to achieve the outcome? Are the timelines realistic?

What progress has already been made towards the outcome? Has that progress benefitted womenand people from traditionally excluded groups?

What are the challenges to reaching the outcome? Identify any factors that are adversely affectingprogress towards the outcome.

Assess UNDP’s contributions towards the outcome through advocacy, partnership and donor-coordination.


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Have the synergies between the work in Access to Justice under the interventions described, andUNDP’s work under the Peacebuilding component of the Country Programme, including the Supportto Participatory Constitution Building Project, been adequately realized? How could this be furtherstrengthened?

Output analysis

Are the defined outputs necessary and sufficient to achieve the outcome? Are they all relevant to theoutcome? Can UNDP’s outputs be credibly linked to the outcome? Are other outputs likely to berequired to achieve the outcome?

What progress been made towards achieving the outputs?

Identify the factors (both positive and negative) affecting realization of the outputs.

Have UNDP outputs involved the targeted beneficiaries, particularly women and traditionallyexcluded groups?

What have been the immediate outcomes or results of these outputs for the beneficiaries?

Sustainability

How sustainable (or likely to be sustainable) are the outputs and outcomes of the UNDPinterventions?

Do the UNDP interventions have well designed and well planned exit strategies? What could be doneto strengthen exit strategies and sustainability?

Partnership strategy

Has UNDP’s partnership strategy in the justice and human rights sectors been appropriate andeffective?

Are there current or potential overlaps with existing partners’ programmes’ ?

How have partnerships affected the progress towards the outcome?

The way forward

What changes should UNDP make in order to make its interventions more relevant and moreeffective?

What changes should UNDP make in order to better reach and benefit women and people fromtraditionally excluded groups?

5 Methodology

Overall guidance on outcome evaluation methodology can be found in the UNDP Handbook on Planning,Monitoring and Evaluating for Development Results. The Evaluation team will determine the specific designand methods for the evaluation, however the following is suggested:

Desk review of relevant documents (Country Programme documents, project documents, projectevaluations and reviews, annual reports, and other reports; see Annex )

Consultations with UNDP staff at the Country Office Consultations with project teams Review of latest data for all indicators Interviews with key partners (Supreme Court, Ministry of Law and Justice, National Human Rights

Commission, Office of the Attorney General, Nepal Bar Association)


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Interviews with development partners (including Denmark, UK, SDC, Finland, Norway, Canada,USAID, Aus-Aid and JICA,)

Interviews with key INGOS and NGOs active in the areas of access to justice and human rights Interviews with UN agencies including OHCHR, UNICEF, UNFPA, OHCHR, IOM, UNODC, and

UNIFEM Field visits to selected pilot courts, paralegal committees, community mediation centers, court

referred mediation centres, legal aid desks, and NHRC regional/sub-regional offices

6 Evaluation Products

The evaluation team is expected to produce the following deliverables:

Evaluation Inception Report detailing the evaluators’ understanding of what is being evaluatedand why, showing how each evaluation question will be answered, a proposed schedule of tasks;the report will be shared with and discussed with an “Evaluation Management Team” to beestablished by UNDP.

Draft Evaluation Report to be shared with UNDP and relevant stakeholders for feedback andquality assurance

Evaluation debriefing meeting with UNDP and key stakeholders where main findings will beshared

Final Evaluation Report Evaluation Brief (a concise summary of the evaluation findings in plain language that can be

widely circulated)

7 Evaluation team composition and required competencies

International Team Leader: responsible for overall coordination of the evaluation team, and for theoverall quality and timely submission of the evaluation report to the UNDP Country Office.

Competencies: Advanced university degree in law, human rights, and/or other relevant subject;strong understanding on rule of law concepts, at least ten years experience in access to justice, ruleof law and/or human rights programming in conflict and/or post-conflict contexts, experience inconducting evaluations, excellent analytical and English report writing skills, knowledge of thepolitical, cultural and economic situation in Nepal or ability to quickly acquire such knowledge, abilityto meet tight deadlines.

National Legal Expert: responsible for reviewing documents, analyzing the progress, issues andchallenges, draft selected chapters of the evaluation report as assigned by the Team Leader, andassist the International Team Leader to ensure the overall quality and timely submission of theevaluation report to the UNDP country office

Competencies: advanced university degree in law, human rights or other relevant field; at least sevenyears experience in rule of law, access to justice and/or human rights, excellent analytical and Englishreport writing skills, ability to meet tight deadlines; experience in conducting evaluations andthorough understanding of gender and social inclusion issues in Nepal assets.

National Gender and Social Inclusion Expert: analyze the degree to which programme design andcomposite interventions have addressed the needs of women and traditionally excluded groups;ensure that gender and social inclusion dimensions are incorporated into all steps of the inquiry,analysis and evaluation reporting.

Competencies: advanced university degree in law, sociology, gender studies, development studies orother relevant field, at least five years experience in gender and inclusion-sensitive programming,rule of law, and/or access to justice, thorough understanding of gender and social inclusion issues inNepal, excellent analytical and English report writing skills; experience in conducting evaluations anasset.


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Potential evaluators will be expected to provide their complete curriculum vitae, writing sample andreferences.

All evaluators must be independent and objective, and therefore should not have had any priorinvolvement in design, implementation, decision-making or financing any of the UNDP interventionscontributing to this outcome. In addition, to avoid any conflict of interest, evaluators should not berendering any service to the implementation agency of the projects and programme to be evaluatedfor a year following the evaluation.

8 Evaluation Ethics

The evaluation will be conducted in accordance with the principles outlines in the UN Evaluation Group“Ethical Guidelines for Evaluations.”

9 Implementation arrangements

To facilitate the outcome evaluation process, UNDP Nepal will set up an Evaluation Management Team(EMT) headed by the Country Director and including the Assistant Resident Representative, Governance,the Programme Analyst (Justice and Human Rights), a representative from the M & E team, andrepresentatives from the two main national implementing partners. The EMT will review this Terms ofReference with the Evaluation Team and agree on any necessary amendments; share all relevantdocumentation; review, provide feedback and accept the inception report; assist in identifyingstakeholders; review and provide feedback on the draft report; assist in organizing the debriefingmeeting for key stakeholders; and, accept the final report. A wider “reference group”, includingrepresentatives from other UNDP Programme units, UN agencies, donors, and civil society, will be invitedto key meetings and the final debriefing.

The Governance Unit will assist with logistics, arranging meetings and field visits.

10 Time-frame for the evaluation process

The evaluation is to be conducted from mid-May to mid-June, based on the following time frames:

Desk review and preparation of evaluationdesign (home based)

3 days

Briefing of evaluators by UNDP 1/2 dayFinalizing evaluation design, methods &inception report

1 ½ days

Sharing and discussion of inception reportwith the Evaluation Reference Group forfeedback

2 days

Stakeholder meetings, interviews, field visits 17 daysPreparation of draft report; presentation ofdraft findings to the Evaluation ManagementTeam

4 days

Stakeholder meeting to present draft findings 1 dayFinalize and submit report (home based) andevaluation brief

2 days

TOTAL 31 days

11 Use of Evaluation Results


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The findings of this evaluation will be used to guide the extension of the CPAP in the area of access tojustice and human rights. The evaluation report should therefore include specific recommendations foradjusting programme design to achieve results and for updating the M & E framework.

12 Annexes

1. Project Document of the Access to Justice

2. Project Document of the Enhancing Access to Justice for Consolidation of Peace Project

3. Project Document of the Capacity Development of the National Human Rights Commission (CDNHRC)

4. Project Document of the Strengthening the Capacity of National Human Rights Commission

5. Evaluation report of the CDNHRC project

6. Evaluation report of the pilot courts

7. Evaluation of the Mediation

8. Report on the Access to Justice during Armed Conflict in Nepal

9. Country Programme Action Plan (CPAP) 2008-2010

10. Concept note of the ROL initiative under the DSG


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END OF REPORT