Som Prasad Niroula
[Nepal Institute of Peace (NIP)]
During the period of these four years from April 2006 to present, the country has witnessed many political changes like abolition of monarchy, entry into the system of Republic, formation of constituent assembly by election and ongoing process of drafting new constitution but the major issue of transformation peace process is still in a weak position and the political crisis is continued till the date. The reintegration and rehabilitation of Internally Displaced Persons (IDPs) is one of the major part of the peace process but very little works have been done to the people displaced during the period of conflict. Reintegration and Rehabilitation project of Nepal Peace Fund Trust of Ministry of Peace and Reconstruction has identified only 52,160 persons (14,031 families) till the date which is very small number. Also it has allocated only 4.92 percent of its resource on the category of Rehabilitation. 1 As the National IDP Policy has not been implemented properly and the Procedural Directives 2007 of National Policy Relating to Internally Displaced Persons, 2007 is still in pending, various issues are yet to resolve. The IDPs who want to resettle at the present place of living are unable to receive compensation as it is only for returnees although the National IDP Policy clearly entitles every displaced persons have right to integrate in their current place of displacement of resettle elsewhere in Nepal.
Capture of Land and Property and the Right to Property
During the conflict, a large number of people left home due to threat and harassment by conflicting parties. They also did not get chances of even taking the tangible properties their houses were captured as well as destroyed by the conflicting parties Nepal Communist Party of Maoists and security forces. Moreover, some for the houses got destroyed itself because of not staying for long year.
The laws of armed conflict prohibit the destruction and capture of property was breached by both sides. Also the distribution of compensation for reconstruction and repair was ignored at the beginning and it is still prolonged. More than 10,000 cases of claiming for compensation were recorded by taskforce formed in 2007, but till the date only some 419 families had received support to reconstruct their houses and 2,468 repair of damaged house. 2
The lack of housing in the place of origin is as one of the main factors preventing the IDPs return. A survey report claims that nearly half of those interviewed reported serious land housing and property problems. 3 Many of IDPs are willing to return but the Maoist Cadres at local level still making threaten to them.4 Thus most of the IDPs with non-Maoist political affiliations have been prevented from recovering land and property.
The property right is one of the basic rights of human being. According to the preamble of the interim constitution, it guarantees the basic human rights to every citizen of Nepal. "Right to Property" under Article 19(1) provides that all citizen of Nepal are guaranteed by the right to acquire, own, sell and otherwise dispose of property. 5 The state shall not except in the public interest, requisition, acquire or create any encumbrance, on the property of any person, and this should be just, fair and reasonable and not by arbitrary but rule of law or by law only. 6 Other provisions under the Constitution include the right to earn and use one’s property, and the right to choose one’s place of residence. Moreover, the constitution enshrines that the state has a responsibility to conduct programs to rehabilitate the displaced and provide relief for damaged private properties. 7
Returning of captured land and property is one of the necessary parts of rehabilitation. According to the International Guiding Principles on Internal Displacement (IDPs), competent authorities have the duty and responsibility to assist returned and/or resettled internally displaced persons to recover, to the extent possible, their property and possessions which they left behind or were dispossessed of upon their displacement. When recovery of such property and possessions is not possible, competent authorities shall provide or assist these persons in obtaining appropriate compensation or another form of just reparation 8. It is clearly mentioned in the National IDP Policy also that the state shall make necessary arrangements to return such physical properties which were forcefully seized at the time of conflict 9. However, the commitment of the peace process has not been implemented on the issues of returning the properties to the IDPs.
The unequal access of land is also one of the major reasons of conflict. Most of the lands were captured with a purpose of distributing to the landless poor. But, it is still unknown how many poor people received the land illegally distributed by Nepal Communist Party of Maoist. Now, it is challenge for the Maoists as well as government to return the captured land and provide to land owners.
The High Level Scientific Land Reform Commission (HLSLR) which was formed to study the land situation has recently reported that there are 1.4 million landless people in Nepal and they require 421,770 hectare land to get rehabilitated and there is some 492,851 hectare land belonging to the government which is not being used productively and it can be used to enable 1.4 million squatters to enjoy access to land 10.
The government of Nepal should return the captured land to the owner. The practice of illegal encroachment of land may further exaggerate the present crisis. The government may bring a law and look for a legal space to take excessive land from owner. The government may give minimal compensation for the owner / IDPs.
The Present Context
The capturing of land is still continued by various armed groups and political parties in different parts of the country. Unified UCPN(Maoist) and its sister organizations are continuing to capture private and trust-owned land in various places even as months have elapsed since the signing of the Comprehensive Peace Accord. 11 The rule of law is getting weaken and people are being unable to claim the right of land and property.
Source: INSEC, Human Rights Year Book 2010, p.7
The returning of captured land and property has become a political agenda at present. It has never been such a strongly raised. The returning of captured land and property is one of the major demands of the ruling government to end the deadlock of current crisis and initiate the formation of new government of consensus.
The right to property is widely debated topics. However, the Interim Constitution of Nepal – 2006 considers one of the fundamental rights. Moreover, the international documents recognized rights property is a basic rights of individual. In this regard, the government should ensure the rights to property to IDPs. The government and Nepal Communists Party of Maoists (CPN-M) may impose the land policy through legal amendment. The newly emerged groups also started to seize the property by following the precedent of CPN-M. The mutual solution has to be explore among the government and IDPs.
1.Four Monthly Progress Report, Report No.8, Nepal Peace Trust Fund, Ministry of Peace and Reconstruction
2.Four Monthly Progress Report, Report No. 8, NPTF, April 21, 2010, p.38
3.Nepal IDP Working Group, 15 June 2009, pp. 27-29
4.Rapid Assessment of Conflict Induced Internally Displaced Persons (IDPs) for their Return, Resettlement and Reintegration, NHRC, December 2008, p. 81
5.The Interim Constitution of Nepal, 2007, Article 19 (1)
6.Id, Article 19 (3)
7.Id, Article 33 (r)
8.UN OCHA, Guiding Principles on InternaL Displacement, Retrived from http://www.reliefweb.int/ocha_ol/pub/idp_gp/idp.html
9.National Policies on Internally Displaced Persons, 2063(2007), 8.3.4
10.nepalnews.com, ‘1.4 million landless people need 421,770 hectares of land ‘, 15 May 2010
11.nepalnews.com, Maoists continue to capture private land, 7 March, 2010