Local governance in Nepal : a study of local dispute resolution

Abstract

Local Self Governance Act LSGA provision appertained to what is called as ‘the judicial rights (Nayayik Adhikar) of local bodies” has not been implemented legally and effectively in the absence, inter alia, of the elected representatives and adequate capacity of local bodies to implement the same. However, this has not deterred or restrained the local bodies and communities to engage in resolving minor causes and disputes (Bibad) that do arise at the local level. Needless to say, the democratic local governance offers space to resolve disputes that occur in the community. The spaces for participation, institutional and democratic arena to engage in discussions and contestation tend to minimize conflicts in resource allocation and sharing which are often the sources of conflicts. It is long established a fact that the local dispute resolution has been an inherent and inalienable function of local governance institutions in Nepal. It is exercised independently without being overtly dictated, influenced and determined by the changes in the realm of legal and constitutional framework. Needless to say, the justice delivered by the court is beyond the reach of the ordinary people. And it is expensive and cumbersome. Hence, it is inaccessible to the poor and indigent. This has lent credence to alternative dispute resolution as it is less formal, easier and affordable to the ordinary populace. As a result, this has become popular across the world. The Lok Adalats in India, the mediation boards in Sri Lanka, the Barangaya Justice System subject to the jurisdiction of the local government institutions in the Philippines and the Shalish system in Bangladesh are some of the examples in this regard. In Nepal, dispute resolution has been embedded, among others, as an integral, inalienable and indissoluble function and competence of the local bodies especially the Village Development Committee and municipalities- the bottom tier of two tier local governance system in Nepal. Justice in the local communities is understood not as legally defined concept to enforce rights, it is taken as reparation of disruption and restoration of broken ties and nurturance of community feeling and good neighborliness. The Village Development Committees (VDCs) and Municipalities (MCs) are often found resolving community disputes without being bounded and prescribed by the limited jurisdiction provided in the law. For example, the VDCs entertain disputes of varying types and scales not necessarily limiting themselves in the jurisdiction set forth in the LSGA. Needless to repeat, the local governance institutions in Nepal- VDCs, Municipalities and DDCs- have been run by the govt. officials for over a decade. This has not diminished or reduced the trust and confidence of people in local bodies where they brought their issues for development interventions, demanded delivery of services and sought resolution of disputes. Besides this, the informal traditional justice mechanism exist in Nepal to assist in settling disputes among the indigenous ethnic groups . The Tamudhin of the Gurung, Badghar of Tharus and the Mukhiya of the Thakalis are some of the popular traditional justice mechansims in Nepal. The LSGA provision concerining disputes resolution constitutes a meaningful shift from government to governance. It recognizes the democratic and decentralized notion of devolution of justice to grassroots. At this backdrop, this study discusses the local dispute resolution as part of subsidiary governance. It highlights the mechanisms and practices in Sharadanagar VDC, Chitwan , with reference to the values and principles of the interest based mediation conceptualized and elaborated by conflict experts John Paul Lederach, Ronal Kraybill, Roger Fisher and William Ury(1991). While providing a historical account of the practices and experiences of local dispute resolution from past to the contemporary times in Nepal, the study examines the provisions of LSGA and discusses through empirical data the process of dispute resolution at Sharadanagar VDC in Chitwan. In fact, from theoretical perspectives, the study offers two proposition. Firstly, it dwells at devolved mechanism enabled by transfering authorities to VDC to deliver the mediation services at the local level. Secondly, local participation ensures ownership of the people, promotes accountablity and transparancy in the functioning of the local institutions. Where disputants themselves participate in working out the outcome of settlement, this results into an enhanced satisfaction and legitimacy of the process. This not only contributes to resolving inter-personal disputes but also builds a supportive governance environment in which disputes are negotiated and resolved through deliberation and negotation. This study is conceptualized as an attempt in examining the concept of local governance with particular focus on local dispute resolution with reference to the values and principles of interest based mediation. The concept of dispute resolution as provided in LSGA is in need for reexamination and re-conceptualization in view of the prevailing social, political and governance context in the country. This study discusses the role of local institutions especially VDC in resolving interpersonal disputes caused due to incompatibility and conflict of interests. The study identifies the areas where the legal and practical shifts in the LSGA provision are needed in order to ensure that the role of VDCs for dispute resolution is relevant in the changed social political and governance context of the country1. The study is interdisciplinary. It draws on the concept of governance, power and justice-the basic notions of politics and law. Power exists in a whole range of interpersonal situations where individuals deliberate to advance their points of view and influence the opponents. The study aims at exploring into such questions as: do democratic local governance institutions offer space for negotiating issues and mitigating conflicts? To what extent the devolved justice system as enshrined in LSGA provision with regard to local dispute resolution does contribute to access justice and satisfies the interests of the parties to the disputes? The overall objective of the study is to assess the state of local dispute resolution as an integral element of local governance. The specific objectives of the study are such as: to discuss the concept and relevance of democratic local governance in redressing conflicts and resolving disputes at the local level, to examine the LSGA provisions in regard to local dispute resolution in the light of growing use and efficiency of mediation as an effective methodology of local dispute resolution and to identify the ways and means in strengthening the capacity of VDC with particular focus on dispute resolution at the local level. The study is based on descriptive analytical data relying primarily on exploration and description. A wider range of secondary literature has been consulted to discuss the importance of democratic local governance in institutionalizing space for conflict prevention and resolution. For empirical data, the case study method has been employed, and for this purpose Shardanagar VDC in Chitwan District has been selected. The secondary sources used in this study are relevant works, studies/publications and so on. The laws and regulations promulgated by the government from time to time germane to democratic local governance and dispute resolution have been consulted to conceptualize local governance as institutional space for dispute resolution. The relevant reports/magazines and journals containing articles on local governance, mediation techniques and processes of local dispute resolution have been consulted. The VDC profiles, records and relevant papers kept and maintained by local bodies local mediation panels have been perused and consulted as well. The primary data for the study are based on or drawn from the case of Sharadanagar VDC in Chitwan District with respect to local dispute resolution. Sharadanagar VDC is the unit of description with particular focus on local dispute resolution. Individual interview of the local stakeholders especially at the district and village and focus group discussions with mediators are employed as tools to collect responses and information about different aspects of mediation services. Survey was conducted with disputants- users of the mediation services to gauge into level of their satisfaction. Findings/Conclusions The mediation services have become increasingly popular in the community. It serves to fulfill the needs and interests of the disputants as the disputing parties collaborate themselves together to determine the outcomes. Moreover, post -mediation relationship between disputants is found to be good and amicably restored. Interest based negotiation process and mechanism contributes to create a positive ambience for harmony and good neighborhood. Moreover, the mediation services have brought about changes at personal, relational, cultural and institutional levels. Responses of different stakeholders interviewed reveal the fact that the community mediation services are being used by women, and the marginalized groups. They immensely benefit from it. And the they are satisfied with the outcome of the settlement .The terms of resolution are executed as well. However, there is a need to reformulate the relevant provisions of LSGA and its bylaws in line with the principles and values of interest based mediation. A simple and flexible process for dispute resolution needs to be provided in the law to achieve the win-win outcome of the resolution Justice at the local level should be comprehended as an attainable and objective phenomenon largely controlled by people’s own choice. It should be negotiated between the concerned parties themselves. Furthermore, justice at the local level where mutual cooperation, good and quality neighborhood form basis of community life should not be understood as something to be derived or handed from the court or judicial institutions . In microcosmic terms, resource constraints and institutional problems plaguing the VDCs impede the implementation of the local dispute resolution. This needs to be addressed. The inadequacy of technical, financial and technical resources is the daunting problem. Undoubtedly, multiple institutions or individuals are sought by the local people to resolve the disputes. There is a need to strike harmony and uniformity in terms of approach and quality of dispute resolution services provided by different local forums and institutions. Law and authority cannot influence and dictate the dispute settlement norms practiced by indigenous communities and ethnic groups. However, their capacity for using appropriate communication and facilitation skills to arrive at win-win resolution of the disputes should be enhanced through training on the skills, values and norms of the interest based mediation. The knowledge and awareness in regard to mediation services available at the local level is not adequate in terms of breadth and width. Social marketing or information strategy needs to be conceptualized and implemented through recourse to the use of a variety of local media. Similarly, attention needs to be provided to ensure that the composition of mediators represented the educated, experienced, credible adult citizen at the community. This can contribute to combine both rationality of neutrality and trust and confidence of the community in the mediation services. The available manpower, budget and financial resources do not seem to be enough to entrust a plethora of functions and mandates to VDC without augmenting their infrastructures and organizational capacity. This has to be addressed. This can be tackled, among others, only if democratic elections are held. Moreover, local institutions should be made organizationally strong and competent to manage and support the services of this kind.