Community mediation is gradually evolving as an appropriate method of increasing not only the access to justice to the rural people but also that of empowering women, Dalits; infusing human rights culture and ensuring good governance. At a time when the administrative service remains dislocated due to conflict, the mediation programs in some districts implemented by civil society has proved a viable model that can adapt with the local conditions and ensure that people continue to receive justice that is not only appropriate but also justiciable. Although, at present, donors are supporting the mediation programs, their utility – particularly when the local villages are devoid of any government service – appears to be growing. The need of the hour is to ensure the long-term sustainability and extension of such services in the rural hinterlands across the country

By Sanjaya Dhakal in Shantinagar VDC, Jhapa

Mijar and his Wife : Justics by community
Meena Khati, a Dalit woman in her mid-twenties, appears a lot older than her natural age. A mother of three small sons, she suffered a terrible jolt when in October, 2005, her husband Dhan Bahadur Khati – the sole breadwinner of the family – suddenly died leaving her with the daunting task of taking care of three children and elderly mother-in-law.

As if the challenge was not enough, the fate delivered another blow. It appeared that her husband had just recently sold the entire 4 kattha land including the only house they were staying in to another villager Ambar Bahadur Mijar. Without telling his family, Dhan Bahadur Khati had sold the land in order to pay off his mounting debts.

“He (Khati) told me he had no money to pay debts to me. He requested that I buy his land. But all of a sudden he died leaving me in a cold,” said Mijar who himself is a poor Dalit villager. Mijar had been giving loans on and off to Khati since a long time. “I, myself, am staying in a land contracted from school. My house had recently been hit by marauding wild elephants,” Mijar said pointing to his dilapidated hut.

The case of Khati and Mijar presented a serious predicament to the entire village of Shantinagar VDC-2 . On the one hand, you had a family of Khati who just lost their sole breadwinner and were under threat of being displaced from their only staying place. On the other hand, you had another poor family that had invested its entire savings to buy a land that they simply could not own. Either way, whether Khati lost or Mijar lost, justice would not have been delivered in a true sense. The case that would have baffled even the best of legal minds, was not serviceable by the traditional adversarial system of justice delivery that Nepalese judiciary abides by in which a party wins and another party loses. Furthermore, for Khati and Mijar, the formal justice system is almost inaccessible from physical distance as well as cost standpoint.

Cut off from the highways and cities by Timai khola – that regularly floods the region in monsoon – the Shantinagar VDC, with its 30,000 population dominated by Janajatis, is far away from the eyes of central or district government. A self-proclaimed ‘base area’ of the Maoists where the armed cadres regularly roam, the village is devoid of any government institution barring schools and health post. The VDC building lies destroyed – a powerful symbol of insecurity that grips the entire village.

Fortunately, for Khati and Mijar, just a few months after their disputes, a community mediation committee was formed in the village by the initiative of the local people. “When we saw similar committees working effectively in other VDCs, we called a village gathering and decided to form the committee,” said Nilmani Neupane, the office secretary of Shantinagar Human Rights and Community Mediation Committee – an active social mobilizer. “We were surprised when donors provided us with stationery and furniture,” he said.

Weeks after its formation, the Shantinagar CMC had to deal with the case of Khati and Mijar. “It was, indeed, a very difficult case. Nobody would have won had they approached formal courts and it would have taken years before any decision would have been given,” said Neupane.

Pursuing the principle of human rights and justice by consensus, the CMC urged Mijar and Khati to reach settlement on their own. After Mijar formally registered a case at CMC, the committee organized mediation session by inviting all section of the village community. After hours of prodding the two sides, Mijar and Khati reached an understanding to divide the land into two halves. While Khati would get to keep the house and small portion of the land, Mijar would get the other half. Both were satisfied.

“I am happy,” was the short reply by Meena Khati. On the other hand, Mijar who still has not been able to get over the loss he had to incur, is, nonetheless, satisfied with the initiative taken by the CMC. “They did not pressure me. I am satisfied with their work,” he said.

A difficult case was thus settled in a cordial and convenient manner. Not a dime had to be spent by either of the disputants. But the CMC did not have an easy sail throughout. “At first, we had no idea how we would be working. Even the local Maoists viewed us suspiciously. They thought CMC was a new way of state’s encroachment to their area. Later on, even they started to refer the cases that go to their “people’s court” to our committee,” said Neupane.

In the absence of functional local bodies and other government administration in villages, the local people are looking up to the CMCs as feasible institutions.

Currently, CMC are active in 30 VDCs each in Jhapa, Ilam and Saptari districts. Under the support of DfID-ESP, the Center for Victims of Torture (CVICT) is implementing these programs through local partner NGO called Nepal Community Development Center (NCDC) since the year 2001.

Attracted by the exemplary work they are doing in those VDCs, many other VDCs have started demanding for the same. “We are flooded with demands for extending the committees in more and more villages. But we have not been able to meet those demands yet,” said Mahendra Karki, program officer at NCDC in Bhadrapur, Jhapa.

Feasible Alternative

Community mediation is a practice of dispute management in which as a neutral third party, the trained mediators of the same community provide volunteer mediation services to the disputing parties.

The CMCs have a number of advantages. “Apart from providing legal services to the people within their community, it helps to eradicate the culture of torture, inject culture of human rights, empower Dalit, women and marginalized persons and ensure good governance,” Shambhu Kattel, an anthropologist, who is associated with the CVICT.

Traditionally, even minor cases/ disputes in villages are referred to police and/or courts. Normally, the police arrests the offenders after complaints from the victims and in most of the cases they are subjected to torture in the custody in order to make them ‘spill beans.’ “On this backdrop and since the ultimate objective of the CVICT is to reduce and ultimately eradicate torture from society, it designed and implemented community mediation program,” said Kattel. Since the CMC manages and resolves dispute in a cordial atmosphere with firm adherence to human rights values, it has helped in reducing torture and conflict.

Under the CMC, in each VDC and ward, mediation committees have been formed. Members of the committee have been trained and provided with stationary and reading materials. The members are provided six days of intensive training on law, mediation and human rights. The trained mediators are involved in dispute resolution. Around 30 percent of the CMC members have to be women with sizeable representation also drawn from Dalit, Janajatis and other marginalized community.

The CMCs, which are referred to as non-formal justice system, have also developed as a supporting unit for the formal courts. The courts across the country and at all tiers are over-burdened by the huge number of cases. The long list of pending cases has resulted in severe delay in justice dispensation. As such, the CMCs, which can deal with minor cases excepting the cases in which state is a party and in which criminal offense is involved, can work to ease their workload. “Besides, a report by Supreme Court had recently stated that over 50 percent of the decisions by the court are not implemented at local level. This problem can be effectively addressed by CMCs as they work in the community and monitor the implementation of agreements,” said Hemang Sharma, a legal officer at CVICT.

The court officials, district-based lawyers and administrators have gradually started lending support to the CMC after gauging their effectiveness. Laxman Aryal, former judge of Supreme Court, states, “I definitely appreciate the efforts made by the Community Mediation Program. From my visits, I am very confident that no other tools of justice delivery can be more effective than community mediation. It is like a Ram Ban (medicine) to provide real justice to the disputants. Courts can give justice to one party – whether the party is genuine or not on the basis of the witnesses provided – but community mediation justice dispensation is so different that no party feels that they have lost the case against the other.”

These apart, the cost and time saved in settling disputes from CMC are huge. On average, one party has to spend around Rs 20,000 if he/she approaches formal courts. Besides, it takes more than year, even several years, to settle the dispute. The cost involved in frequent travel from villages to district headquarters where the courts are located is huge. Justice, thus, becomes unaffordable to a majority of rural Nepalese. In contrast, justice through CMC doesn’t cost a dime and it takes only few days, if not hours, to settle the dispute.

Human Empowerment

One of the most noticeable features of community mediation is the wide involvement of women, Dalit and persons from marginalized community. Typically, a CMC at the VDC level has 9 to 11 members while those at ward level have 5-7 members. One-third of them are women along with sizeable participation of Dalit and Janajatis.

“In the last few years of our experience, we have seen that by getting involved in CMC, the stature of women and marginalized persons have increased. In Saptari, many women there have now started to face their community confidently. The Muslim women there have even started to shed burqa when sitting on the mediation session,” said Kattel.

An episode that occurred in Ilam can also be a case in point. In Barbote VDC of Ilam, Dalits were earlier barred from selling their milk to a local private dairy collection center. After the case was referred to CMC, both the sides resolved the dispute amicably and now Dalits not only sell their milk but are also included in the board of the dairy. “From anthropological viewpoint, the growing interaction among Dalits and non-Dalits within the CMC has started to unleash a positive social transformation that is going to have a far-reaching consequences in our society,” added Kattel.

The ownership of CMC by people from different caste and ethnic divide has ensured that the mediation is acting also as a force for good.

In the VDCs that have CMCs, the people now realize the importance of non-discrimination. Wives are complaining against husbands for domestic violence and Dalits are filing cases against people from so-called higher castes. “In fact, there are many cases related with marital disputes that come to our committee,” said Kamala Sharma, a woman member of Shantinagar CMC.

Sustainability

When it was started, the donors and NGOs had planned to make the CMCs sustainable by linking them with the existing elected local bodies. “They were tied with the VDCs and there were understandings how VDCs would financially and technically support them. But in subsequent years, the VDCs were left without elected representatives and the escalation of conflict pushed them out from the villages,” said Mahendra Karki of NCDC, Bhadrapur.

Currently, the Community Mediation Program run by NCDC and CVICT with the funding from DfID is time-bound. “It is to make the program sustainable that we have not provided salaries to the CMC members. They all work voluntarily. We only provide them with periodic trainings, technical inputs, stationery items and so on. Ultimately, the community will have to take up their responsibility,” said Karki.

According to Karki, VDCs have shown eagerness to support the CMCs. But since they have been displaced from the villages, it is difficult to materialize the support.

Because of the growing popularity of community-mediated solution of disputes – in Jhapa district alone CMCs have settled 1534 out of 1964 cases filed till now with none of them returning for appeal – the program needs to be expanded across the country.

The fact that CMCs are sometimes the only feasible institution that provides services to local people, underscores its importance in this period of vacuum. Take the case of Shantinagar VDC; apart from schools and health post, there is no presence of any institution providing services to the people living there. The VDC has been displaced to Charali – a nearby township in East-west highway.

“The expectation of people is so high that they want us to act as VDC. They regularly request us to service their land tax, house tax, recommend for citizenship certificate and so on,” said Nilmani Neupane, secretary of Shantinagar CMC, adding, “On the other hand, even the VDC staffs who are located in Charali request us to collect the taxes and provide certain portion to them. But we have not done this sort of service because it would anger (the Maoists).”

Neupane believes that in his village there would be no problem of sustainability. “The community forests in the village earn a sizeable income. We plan to involve them and seek their support in the coming years,” he said.

As such, for rural people, CMCs have become a symbol of hope. “They are really doing a good job. None of the villagers have any complaint against their function,” said Tara Silwal, a girl from Charpane VDC-6 of Jhapa.

As Khati and Mijar have experienced, having justice delivered in the neighborhood is a big progress. And the forces for good that the community mediation has unleashed will continue to transform the socio-cultural conditions of people living in those 90 VDCs of three districts for a long time to come. At a time when rural people are reeling under the situation of insecurity and frustration, it would make a big sense in replicating and expanding such programs that can have visible impact across the country.

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