Follow Up on UPR 3rd Cycle

Freedom Forum organized a follow-up discussion on Universal Periodic Review (UPR) on Freedom of Expression and Association in collaboration with the National Human Rights Commission (NHRC) in federal capital, Kathmandu on August 11.

The discussion focused on 3rd Cycle of UPR. The UPR is an innovative process of UN Human Rights Council where human rights situation of 193 UN member countries is evaluated, and declaration of and commitment made to protection of human rights.

The event held in the wake of the mid-term of the 3rd Cycle of UPR for Nepal had secured participation of 35 persons including 11 women representing human rights institutions, media, and Nepal Bar Association, among others.

Human Rights Official at NHRC Khima Nanda Basyal started the program highlighting it objective. He said NHRC had always submitted UPR on entire human rights issues. The program’s aim was to discuss current status of implementation of recommendations to Nepal on human rights and way forward for the preparation of the fourth cycle especially on FoE and FoA.

Secretary at NHRC Murari Prasad Kharel made extensive presentations on the UPR process, UN member countries’ recommendations to the Nepal government in all three cycles and Nepal’s responses so far. It is an important moment to discuss on UPR in the wake of its mid-term, he underscored.

“UPR has focused on rights of human right defenders as well. But the government is trying to shrink the civic space instead”, he noted. He also expressed the need for adopting integrated approach to implement and monitor all 233 recommendations in cross-cutting issues. He also shared joint action plan (how NHRC and CSOs could work together) on monitoring and evaluation of the implementation.

“Nepal’s First and Second cycles of UPR took place in January 2011 and November 2015 respectively. The third cycle took place in January 2021 where Nepal received 233 recommendations. Recommendations related to strengthening NHRC, establishing transitional justice mechanism and cooperation with treaty bodies among others were made in all three cycles. In the third review, Nepal has accepted 196 and noted 37 recommendations. Out of total, 47 recommendations were on economic, social and cultural rights, 26 on Child and Political Rights, 14 about Transitional Justice, 22 recommendations on equality and nondiscrimination, 25 on ratification of international instruments, etc. According to NHRC’s study in February 2020, 121 recommendations from previous cycles were partially or fully implemented and 42 recommendations are yet to be implemented”, mentioned the presentation by Secretary Kharel.

Following Kharel’s presentation, Mr Narayan Ghimire made presentation on FF’s UPR submissions being focused on the themes- Freedom of Expression, and Freedom of Association and Assembly- in all third cycles. The recommendations made by 98 countries to the Nepal government on these themes were highlighted in the presentation. FF had prepared and submitted UPR reports on freedom of expression and association prepared in collaboration with Free Press Unlimited and CIVICUS.

It was shared that during 3rd Cycle, Nepal received 233 recommendations and accepted/supported 196 recommendations and noted 37 recommendations.

In his presentation, Ghimire mentioned that most of the recommendations to Nepal on FoE and FoA were supported by the government and only few noted. One among the recommendation regarding amendment of Electronic Transaction Act (recommendation by USA) in line with free speech right of citizens was ‘noted’ by Nepal government.

After these important presentations, the floor was opened for discussion on those recommendations and participants’ observation on their implementation.

Columnist and noted investigative journalist Namrata Sharma warned that if all sides concerned do not raise voice on any issue of public concern on time, the State would gradually slide to tyranny. Bringing forth reference of India that how journalists and civic thinkers were censured, Ms Sharma stressed that critical thoughts and public opinions are essential to healthy democracy, she insisted, urging all to stay aware in this regard.

Mass media and journalism educator at Tribhuvan University, Shreeram Paudel, viewed media pluralism should be ensured in Nepal. He also pointed out the honest implementation of right to information (RTI).

Senior official at NHRC, Shyam Babu Kafle, wondered why the mechanism to implement UPR implementation was still uncertain. He suggested Freedom Forum to take a lead in advancing freedom of expression and rights of FoE defenders by making national network on it.

Executive Director at SAP Nepal, Narendra Joshi viewed it was worrying to hear shrinking civic space in Nepal. Old laws must be replaced, and some amended to fit changed condition so that civil society can work in unrestricted manner.

Media Action Nepal’s Chairman Laxman Datt Pant suggested that suppression of FoE online is a serious issue and it should also be addressed on the UPR process. Safe online space is need of hour, he argued, expressing that attack on online space was growing lately in Nepal.

Ms Sadikchhya Silwal from Digital Rights Nepal expressed concern despite such criticism from rights defenders, the recent National Cyber Security Policy government still warrants attention. She doubted that FoE is well protected in the policy.

Moreover, Ms Neha Gauchan from Body and Data underscored that FoE of minority community should also be addressed well. “In present time, not only government but also tech companies breach freedom of expression and privacy,” she opined.

In response to the comments of participants, Acting Chairperson of NHRC, Surya Dhungel, viewed NHRC was always ready to cooperate and collaborate with civil society to protect and promote human rights in the country. Avoiding responsibilities by the government on human rights obligation is worrying factor, so lawmakers and parliamentarians must be made further accountable. Focused discussions are needed on multifarious issues relating to UPR, Dhungel suggested.

Similarly, General Secretary of Nepal Bar Association, Anjita Khanal, viewed Nepal Bar Association is always ready for protecting and promoting human rights. She urged the stakeholders to make integrated efforts on advocating and realizing human rights.

FNJ President Bipul Pokhrel said protection and promotion of freedom of expression is essential also for achieving SDGs. UPR is a significant platform to whet debate on human rights including FoE (freedom of expression) and FoA (freedom of assembly and association), he added.

Moreover, Freedom Forum Executive Chief Taranath Dahal reminded the process of UPR and believed that constructive discussion on different issues of human rights and UPR would help create atmosphere favourable for exercise of human rights including FoE and FoA. It also gives reference to mid-term review of UPR third cycle. UPR is such an effective global platform that facilitates discussion on human rights issues and makes governments accountable to these fronts.

“Time has come to ask government how and when it will prepare mid-term report on UPR 3rd cycle and how it responds to the recommendations it supported and noted,” he commented, saying that present discussion is organized in a right moment because it is mid-term for the review of UPR 3rd Cycle.

According to him, there is slight reform in the recent National Cyber Security Policy. It needs further reform, Dahal added.

Concluding the discussion, FF’s Chairperson Hari Binod Adhikari appreciated the NHRC initiative for collaboration with FF on fostering debate on such important issues of UPR. FoE is a base of other freedoms hence, we must continue our initiatives to promote and protect human rights and FoE by making government responsible on UPR issues, he argued.

In the 3rd Cycle of UPR, a dozen of recommendations were made by various countries to Nepal government on FoE and FoA.

Some of them are:

Brazil: Consider revising the local legislation on media and information technology in order to guarantee the full respect of the right to freedom of opinion and expression. (Nepal had supported it.)

Canada: Uphold respect for freedom of expression and the right to privacy, including in draft legislation regulating information technology, media and mass communications. (Nepal had supported it.)

Chechia: Safeguard the freedom of expression and foster civil society participation; ensure that NGOs active in the field of human rights – including those receiving foreign grants – are free to operate. (Nepal had supported it)

USA: Reform the Electronic Transactions Act to eliminate the criminalization of speech.  (Nepal had noted it)

Estonia: Ensure the right to freedom of expression online and offline, in law and in practice, and guarantee a safe and enabling environment for journalists and human rights defenders (Nepal had supported it.)

Under the 3rd Cycle of UPR, Nepal government (Foreign Minister Pradeep Gyawali) had submitted its UPR early in January 2021.

Meanwhile, on October 2021, the Office of UN High Commissioner for Human Rights had written to Nepal’s Foreign Minister Dr Narayan Khadka, reminding the following points under ‘Fundamental Freedoms.’

  • To revise the draft of National Integrity/Ethics Policy
  • To revise Draft Privacy Policy
  • To revise draft Online Media Directive
  • To Amend Electronic Transaction Act
  • To Amend National Broadcasting Regulations
  • To Decriminalize defamation and place it within a Civil Code to meet international standards

Moreover, under the joint UPR submission on FoE by Freedom Forum and Free Press Unlimited, following recommendations were made to Nepal government:

  1. Intensify the process to implement the directive brought at the National Human Rights Commission (NHRC) in order for the protection of human rights of the journalists and rights defenders. The mechanism on safety of Freedom of Expression defenders, including journalists, should ensure representation of Freedom of Expression experts, security personnel, concerned Ministry representatives and NHRC officials.
  2. 2. Actively enhance and build capacity of the transitional justice mechanisms (TRC and CIEDP) with sufficient human and financial resources and legal and political support.
  3. 3. Amend the legal framework of the TRC and CIEDP to make it consistent with international human rights law and Supreme Court of Nepal rulings
  4. 4. Set a baseline, indicators and targets by developing a monitoring mechanism to monitor government actions contributing to SDG indicators 16. 10 1. and 16.10.2 and set up a multistakeholder body assigned to critically assess government actions towards this end.
  5. 5. Ensure stakeholder participation in media policy development and law making that contribute to SDG goal 16.10. 57.
  6. 6. Amend RTI Act to
  • Ensure Right to Information to all people by broadening its scope beyond citizens
  • Devise institutional and legal mechanism at provincial and local governments to implement right to information
  • Ensure information sharing/disclosure in open data format
  1. 7. The government of Nepal should transform the government owned media to a public service media, while ensuring editorial independence.
  2. 8. Adopt comprehensive national legislation in order to ensure media pluralism and protect independent media
  3. 9. Investigate and stop state-sponsored trolling and cyber-bullying against journalists and dissenting voices

Under the 3rd Cycle, the joint UPR submission by Freedom Forum and CIVICUS on FoA made the following recommendation to Nepal government:

  • Take measures to foster a safe, respectful and enabling environment for civil society, including by removing legal and policy measures that unwarrantedly limit the right to association.
  • Remove all undue restrictions on the ability of CSOs to receive international and domestic funding in line with the best practices articulated by the UN Special Rapporteur on the rights to freedom of peaceful assembly and of association.
  • Undertake a full consultation with all concerned stakeholders on the proposed law regulating ‘social organisations’, and the proposed National Integrity Policy, and guarantee that when enacted, undue restrictions on the freedom of association are removed
  • Compliance with articles 21 and 22 of the ICCPR.
  • Guarantee the effective and independent functioning of autonomous trade unions by ratifying ILO Convention No. 87.
  • Adopt best practices on the freedom of peaceful assembly, as put forward by the UN Special Rapporteur on the rights to freedom of peaceful assembly and of association in his 2012 annual report, which calls for procedures in which there is simple notification of assemblies being held, rather than explicit permission being needed to assemble.
  • Unconditionally and immediately release all protesters, HRDs and journalists detained for exercising their right to the freedom of peaceful assembly and review their cases to prevent further harassment.
  • Immediately and impartially investigate all instances of extrajudicial killing and excessive force committed by security forces while monitoring protests.

It is worth noting that Freedom Forum, along with IFEX had submitted joint UPR on FoE in the 1st Cycle, 2011; and along with ARTICLE 19 on FoE in the 2nd Cycle in 2015.