Nepal

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National context

 

nepal

Nepal faces systematic challenges primarily as a source country, but also a destination and transit country, for men, women and children subjected to trafficking for labour exploitation and forced labour. Nepal has made significant socio-economic progress in the past decade,  reducing its absolute poverty rate from 42% to 23.8%. However, the absence of decent domestic employment opportunities continues to drive Nepali men and women to migrate for work abroad. A significant number of Nepali overseas workers have been found to have been recruited for work overseas through fraudulent employment promises, and to have later been subjected to servitude, forced labour and debt bondage in a variety of industries. Nepali men and boys have been found to have been exploited in the Middle East (including in the UAE, Saudi Arabia, and Qatar) in sectors such as construction, agriculture, and domestic servitude. Nepali women and girls have been found to have been subjected to fraudulent recruitment and forced labour in the neighbouring countries of China and India, in industries as diverse as manufacturing, mining and domestic work.

Further to this, the April 2015 earthquake and its subsequent aftershocks, contributed to vulnerability to trafficking within affected areas by adding to the economic insecurity and discrimination already present within Nepalese society, and depleting government funds and disrupting the operation of government and private institutions facilitating foreign employment.

Debt bondage

Debt bondage is a traditional form of labour exploitation in Nepal, whereby a person provides labour in repayment of a debt acquired by them or their family, or inherited from their ascendants. Debt bondage is commonly linked to agrarian relations in Nepal, and poverty, lack of assets and unequal power relations lie at the root of this practice. Landless vulnerable individuals are forced by their circumstances to borrow from land holders, and enter a cycle of loan repayment through work in exploitative conditions. Excessive interests and wage deductions keep bonded labourers in a perpetual cycle of debt.

Bonded labour was only formally abolished in Nepal as recently as 2002. The 2002 Bonded Labour Prohibition Act outlawed the practice bonded labour, and promised financial support for the resettlement and rehabilitation of ‘liberated’ bonded labourers. However, despite the legal prohibition, the practice of the Kamaiya and other systems of bonded labour —including the Haliya, Haruwa and Charuwa systems— persists in a number of regions in the country. Moreover, the nominal ‘liberation’ of these bonded labourers is not sufficient to address the issue, and further efforts towards the rehabilitation of victims and provision of alternative livelihoods are needed in order to prevent further exploitation.

 Labour Migration

The management of significant migration flows, including transnational migration motivated by rising unemployment, remains a major challenge faced by the Government of Nepal. A total of 2,226,152 labor permits were issued over the six-year period from 2008 to 2014, with the annual rate increasing by 137 % over this period; and an additional estimated 700 thousand unregistered Nepalese men and women work abroad. Many migrant workers have low levels of literacy, are unskilled or semi-skilled and lack information on formal and safe channels for migration. A number of national and international NGOs have also criticised a ban that currently prevents women under the age of 24 from migrating for work abroad, as a policy that far from protecting women from exploitation, is likely to render women more vulnerable and drive female migration further underground.

According to the World Bank, remittances made up 29.2% of Nepal’s total GDP in 2014. A potent recruitment industry has developed in Nepal, dedicated to linking migrant workers with employers abroad, handling the immigration procedures and facilitating employment contracts for migrant workers. 79.9% of all labour permits issued between 2007 and 2014 were issued to migrants using recruitment agencies. However, the use of intermediaries, couple with the vulnerability of many Nepali migrants, has often lead to migrant workers being subjected to exploitation and forced labour abroad. Recruitment agencies in Nepal often change high fees to workers for the services provided, encourage workers to engage in document fraud, and engage in deceptive and abusive practices such as sending workers to a country other than previously agreed or stipulated in the employment contract, or engaging in contract substitution and subjecting workers to conditions other than those agreed before leaving Nepal. The Government of Nepal operates a recruitment agency licensing system, and fraudulent and abusive recruitment practices have been criminalised under the Foreign Employment Act 2007, including the criminalisation of operating without a license, charging excessive fees, sending children abroad for work, or the use of coercion and deception in foreign recruitment. However, the implementation of this legislation has only been partial, with only 22 agencies being prosecuted in 2013-2014 for offences under the Act, only 3 of which were finally convicted. These numbers stand in stark contrast with the 2,305 complaints filed by returnee migrants against recruitment agencies in 2012, 2,552 in 2013, and 2679 in 2014. Only a 6% of these complaints were further referred to the Tribunals for their prosecution.

Criminal liability and the definition of ‘trafficking’

The definition of human trafficking under the 2007 Human Trafficking and Transportation Control Act (HTTCA) is very narrow and differs significantly from the international UN Trafficking Protocol definition. Under Nepali legislation, human trafficking is defined as the act of selling or purchasing a person for any purpose, or using someone for the purpose of prostitution, or for the purpose of unlawfully extracting a human organ. Therefore, the Nepali definition does not criminalise the recruitment, transportation, harbouring or receipt of persons by force, fraud, or coercion for the purpose of forced labour or labour exploitation. As such, this provision does not meet the international standards set out in the UN Protocol to Prevent, Suppress and Punish Trafficking in Persons, in particular Women and Children.

This Act also codifies an act of “transportation”, which includes taking a person out of the country for the purpose of selling or buying them, transferring them, taking someone from their place o residence, or from the custody of another person, through enticement, inducement, deception, forgery, coercion, abduction, threats exerting influence and abuse of power, including through fear, threats or coercion of the guardian or custodian of the victim.

An unusual provision under section 9 of the Human Trafficking and Transportation Control Act shifts the traditional evidentiary burden in criminal cases, establishing that in human trafficking cases the burden of proof will be on the offender. Under Nepali law, it is therefore the offender who is required to provide evidence to prove that he or she did not commit an offence under the Act. 341 alleged trafficking cases were prosecuted in Nepal between July 2015 and July 2016, leading to the conviction of 260 perpetrators. However, 227 remained pending in July 2016, and the data available does not differentiate between sex and labour trafficking, or new and pending cases.

The Act provides for the non-prosecution of victims, and in particular the exemption of criminal responsibility of victims of human trafficking and slavery for the injury or killing of the perpetrator (the trafficker). It also entrenches the right of trafficking victims to receive compensation from the perpetrator. However, victims of transnational labour trafficking reportedly prefer to submit claims for compensation through the Foreign Employment Act, rather than pursue criminal prosecutions under HTTCA, due to the stigma associated with being labeled a human trafficking victim, and because the potential compensation to be awarded is higher.

Labour standards

The 1992 Labor Act and its by-laws regulate the employment, working conditions and rights of all workers in Nepal. The Act covers basic labour rights such as minimum wage, maximum working hours, or health and safety at the workplace. Further, the Child Labor Prohibition and Regulation Act prohibits children under the age of 14 from working, as well as protecting children from being subjected to any form of risky labour, while also setting out children’s rights to health, safety, and adequate facilities at the workplace.
It is estimated that 80% of the total workforce in Nepal is working in the informal economy. As a consequence, this informality prevents the application of labour legislation, creating a situation in which most Nepali workers cannot access their basic labour rights. The International Labour Organisation (ILO), has also raised concerns regarding the  ineffectiveness of the labour inspection  system and lack of labour rights enforcement in Nepal, due to a serious lack of human and material resources.

 

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