Karki Probe Report: Gaps and Contradictions Under Fire

Judicial Probe Commission’s Report on September Protests Deemed Biased and Incomplete

A judicial probe commission, established to investigate the significant protests that occurred in September, has released a report that is drawing considerable criticism for its perceived bias and lack of thoroughness. The commission, led by former Special Court chair Gauri Bahadur Karki, was tasked with examining two days of intense events: the state atrocities on September 8 and the subsequent acts of arson and vandalism on September 9. However, the report’s findings, which were recently leaked to the media, suggest a lopsided investigation, with a more comprehensive inquiry into the first day’s events compared to the destruction that followed.

Key Findings and Criticisms:

The commission recommended criminal investigations against several high-ranking officials for negligence leading to fatalities. These individuals include:

• KP Sharma Oli: Former Prime Minister and Chair of the CPN-UML.
• Ramesh Lekhak: Former Home Minister.
• Chandra Kuber Khapung: Former Chief of Nepal Police.

Despite these recommendations, the report has been widely criticized for its apparent failure to adequately investigate the perpetrators of the widespread destruction on September 9. The commission’s report itself acknowledges this deficiency, stating it was “unable, through its investigation, to collect sufficient evidence to recommend prosecution of individuals involved in the September 9 incidents.” It further attributes this to the “sheer scale of the events on the second day” and a “limited mandate.”

However, critics argue that even where statements with clear evidence implicating individuals in inciting violence were recorded, the commission failed to pursue further investigation.

The Rabi Lamichhane Case and Prison Escapes:

A significant point of contention is the commission’s handling of the events surrounding the release of Rabi Lamichhane, chair of the Rastriya Swatantra Party.

• Intimidation Allegations: Satya Raj Joshi, the former jailor at Nakkhu prison, has stated on record that he was intimidated into signing a document authorizing Lamichhane’s release. Joshi claims his signature was obtained under coercion and that the circumstances were unavoidable.
• Prisoner Unrest: Following Lamichhane’s release, thousands of prisoners reportedly resorted to violence and escaped from various correctional facilities. Jailors from different districts have corroborated that prisoners began demanding their release after Lamichhane’s escape.
• Lack of Investigation: Despite these serious allegations and the subsequent mass escapes, the Karki panel reportedly did not conduct a concrete probe into Joshi’s claims or implicate any individuals in connection with the prison breaks.

Nepali Army’s Response and Accountability:

The report also delves into the response of the Nepali Army, noting a perceived slowness in its deployment.

• Delayed Response: On September 8, the army was called for assistance at Parliament but did not respond immediately, arriving only at 3 pm. The army cited protester obstruction of their vehicles as the reason for the delay.
• Missed Opportunities: The report observes that despite the obstructions, the army could have proceeded on foot. It also notes that the army left the Parliament premises after the BICC building caught fire on September 9 and made little effort to prevent the mob from heading towards the Ministry of Home Affairs, a route passing close to an army battalion.
• Limited Accountability: While pointing to a pattern of non-cooperation, the report recommended action against only a few army officials under the Military Act, with the possibility of minor departmental actions. Notably, unlike other security agencies, the top leadership of the army was not held accountable for its role in the perceived flawed security arrangements.

Contradictory Conclusions and Opinionated Reporting:

The commission’s report has been criticized for presenting contradictory conclusions and for appearing more opinionated than objective.

• Excessive Force vs. Non-Retaliation: The report recommends criminal investigation into political and security leadership based on the conclusion that excessive force was used. However, it also suggests that the police’s tactical withdrawal and policy of non-retaliation on September 9 were “improper,” arguing that firmer confrontation might have deterred protesters. This conclusion, critics argue, fails to consider the potential for increased loss of life.
• Conflicting Recommendations for an Individual: In a particularly controversial instance, Additional Inspector General of Police Siddhi Bikram Shah has been recommended for both a reward and disciplinary action. The report acknowledges his role in safeguarding the Police Headquarters but also recommends departmental action for alleged failure to perform his duties.
• Subjectivity Over Fact-Finding: Senior advocate Bipin Adhikari described the report as “more opinionated than objective,” suggesting that an objective report would focus on uncovering facts rather than appealing to emotions.

Time Constraints and Scope of Mandate:

Members of the probe panel have acknowledged that the report focused more on September 8 due to time constraints. Bishweshwar Prasad Bhandari, a senior advocate and member of the panel, stated that a more in-depth investigation into September 9 would have required “a few years” given the scale of events.

However, former deputy inspector general of Nepal Police, Hemanta Malla, disagrees with this justification, arguing that a commission with a clear mandate cannot neglect significant aspects of an incident due to time limitations. He stated, “This cannot be an excuse.”

Ambiguity in Law and Overlapping Jurisdictions:

Bhandari also cited ambiguity in the law and overlapping jurisdictions among agencies like the Nepal Police, Armed Police Force, and Nepali Army as reasons for the commission’s inability to recommend action in several cases. He also pointed to outdated laws as a contributing factor.

Malla, however, suggests that the decision to recommend action against the police chief but not the army chief may be due to the police’s broader public security responsibilities, but questions whether this justifies punitive actions. He believes the report is incomplete and calls for a separate investigative committee to provide a fuller picture.

Recommendations Beyond Core Mandate:

Despite citing a lack of time for a complete investigation into the core events, the commission has offered extensive recommendations on reforms in various sectors, including journalism and the postal service, and has even suggested qualifications for journalists and prescribed how lawyers should function. This expansion of its mandate into unrelated areas while falling short on its primary task has sparked significant controversy.

The Nepal Bar Association has taken strong exception to these recommendations, stating that the report “attacked the values and principles of an independent judiciary and cast aspersions on legal professionals.” The association is preparing to submit its own recommendations to the Supreme Court of Nepal and has formed a committee to conduct a detailed study of the report.