2012 Trafficking in Persons Report - Nepal

NEPAL (Tier 2)

Nepal is mainly a source country for men, women, and children who are subjected to forced labor and sex trafficking. Nepali men are subjected to forced labor, most often in the Middle East and, to a lesser extent, within the country. Nepali women and girls are subjected to sex trafficking in Nepal, India, and the Middle East, and also are subjected to forced labor in Nepal and India as domestic servants, beggars, factory workers, mine workers, and in the adult entertainment industry. They are subjected to sex trafficking and forced labor in other Asian destinations, including Malaysia, Hong Kong, and South Korea. The Chinese district of Khasa on the border with Nepal is an emerging sex trafficking destination for Nepali women and girls. Nepali boys also are exploited in domestic servitude and – in addition to some Indian boys – subjected to forced labor in Nepal, especially in brick kilns and the embroidered textiles industry. An NGO noted that forced labor of Nepali children in Nepali and Indian circuses has declined dramatically due in large part to the rescues spearheaded by that organization. Bonded labor exists in agriculture, brick kilns, and the stone-breaking industry, often based on caste. Traffickers generally target uneducated people, especially from socially marginalized and traditionally excluded groups.

Many Nepali migrants seek work in domestic service, construction, or other low-skilled sectors in Gulf countries, Malaysia, Israel, South Korea, and Lebanon with the help of Nepal-based labor brokers and manpower agencies. They migrate willingly but some subsequently face conditions indicative of forced labor, such as withholding of passports, restrictions on movement, nonpayment of wages, threats, deprivation of food and sleep, and physical or sexual abuse. Many are deceived about their destination country, the terms of their contract, or are subjected to debt bondage, which can in some cases be facilitated by fraud and high recruitment fees charged by unscrupulous agents. A recent Amnesty International study found that migrant workers who reported experiencing problems during their migration paid an average of up to the equivalent of approximately $1,400 in fees to recruitment agents before their departure, almost three times the average annual income for Nepalese, and the equivalent of 10 to 12 months worth of average wages in the Gulf labor markets. However, some Nepalese have paid as much as up to the equivalent of $12,000 to recruitment agencies. Many workers migrate via India; this is illegal under the 2007 Foreign Employment Act that requires all workers to leave for overseas work via the Kathmandu airport. Many migrants leave by land to avoid legal migration registration requirements and to avoid paying bribes that some officials require at the airport to secure migration documents. A recent International Trade Union Confederation report noted that many employment agencies force migrant workers to travel via India in order to avoid insurance coverage or a proper documentation system and to avoid obligations to pay workers their entitlements. Unregistered migrants – those who travel via India or independent recruiting agents – are more vulnerable to forced labor. Bangladeshis transit Nepal for employment in the Gulf and are at risk of being trafficked.

The Government of Nepal does not fully comply with the minimum standards for the elimination of trafficking; however, it is making significant efforts to do so. The government developed two policy initiatives providing minimum standards for trafficking victim care and standard operating procedures for shelter homes, endorsed a national plan of action on human trafficking, and increased prosecutions. Problems remained, however. Anti-trafficking structures were ineffective, and trafficked Nepali migrant workers did not receive sufficient support from the government. Anti-trafficking laws were not well implemented, and some funds allocated for protection in previous years remain unspent. Victim identification efforts were weak, with child sex trafficking victims sometimes being returned to their abusers in the wake of raids. Incidents of trafficking-related complicity by government officials persisted and were unaddressed through law enforcement means.

Recommendations for Nepal: Increase law enforcement efforts against all forms of trafficking and against government officials who are found to be complicit in trafficking; show evidence of efforts to investigate, prosecute, and punish offenses of labor trafficking involving Nepalese migrants exploited abroad; show evidence of prosecuting and punishing Nepalese labor recruiters for charging excessive recruitment fees or engaging in fraudulent recruitment; institute a formal procedure to identify victims of trafficking and refer them to protection services; ensure that trafficking victims are not punished for involvement in prostitution or forgery of official documents; raise awareness among government officials and the public of the existence of forced prostitution of Nepali women and girls in Nepal; publicize the lift of the ban on women working as domestic workers in the Gulf; work with Indian officials to establish a procedure to repatriate Nepali victims of trafficking in India; decentralize the system to file complaints under the Foreign Employment Promotion Board as a means to facilitate victims' access to legal remedy; develop a comprehensive witness protective mechanism; provide citizenship documents to returnee female victims of trafficking and their children; and ratify the 2000 UN TIP Protocol.

Prosecution

The Government of Nepal maintained law enforcement efforts during the reporting period. Nepal prohibits most – but not all – forms of trafficking in persons, including the selling of human beings and forced prostitution, through its Human Trafficking and Transportation Control Act (2007) and Regulation (2008) (HTTCA). The HTTCA also prohibits other offenses that do not constitute human trafficking, such as people smuggling and purchasing commercial sex. Prescribed penalties range from 10 to 20 years' imprisonment, which are sufficiently stringent and commensurate with those prescribed for other serious crimes, such as rape. The Bonded Labor (Prohibition) Act (2002) prohibits bonded labor but has no penalties. According to the Office of Attorney General, 229 offenders were convicted in 157 district court cases tried under the HTTCA, compared with 174 offenders convicted in the previous fiscal year in 119 cases. It is not known how many of these convictions were for human trafficking since the same law also prohibits other crimes. In addition, labor trafficking cases may be prosecuted as foreign employment violations, resulting in smaller penalties than if tried under the HTTCA. The National Judicial Academy, with foreign funding, managed and conducted a three-day training-of-trainers program in September for 20 government officials. Many government officials do not prosecute under the trafficking law due to lack of awareness about the law and challenges in evidence collection. Some NGOs report that law enforcement authorities do not consider domestic forced prostitution of adults to be a trafficking issue.

The incidence of trafficking-related complicity by government officials remained a problem. Observers report that traffickers use ties to politicians, business persons, state officials, police, customs officials, and border police to facilitate trafficking, including the paying of bribes for protection and favors. Some Nepali officials work with traffickers in providing false information in genuine Nepali passports, or in providing fraudulent documents. Politically connected perpetrators often enjoyed impunity from prosecution and punishment. There were no investigations, prosecutions, or convictions of government officials for complicity in trafficking during the reporting period.

Protection

The Government of Nepal made limited efforts to protect victims of trafficking in the reporting period, but prepared and approved two policy documents to help facilitate victim protection. The Government of Nepal does not have a formal system of proactively identifying victims of trafficking among high-risk persons with whom they come in contact and, as a result, some victims were penalized for acts committed as a result of being trafficked. Victim identification did not take place in brothel raids. As a result, some child victims were arrested and then bailed out by their traffickers; this bail further indebted the girls to their exploiters. Some sex trafficking victims were jailed.

Interviewees in a December 2011 Amnesty International study of 149 returned or prospective migrant workers highlighted the lack of support Nepali migrant workers received from the Department of Foreign Employment, the Foreign Employment Promotion Board, and Nepali diplomatic missions in destination countries, when migrant workers sought redress for abuses – including fraudulently advertised employment terms – committed by Nepali labor recruiters. The government continued to run emergency shelters in Saudi Arabia, Qatar, Kuwait, and the United Arab Emirates. The Ministry of Labor's Committee to Hear the Issue of Undocumented Workers established a up to the equivalent of a $125,000 fund to assist exploited undocumented workers, which could include trafficking victims. While the Foreign Employment Promotion Board collected fees from departing registered migrant workers for a welfare fund, most of the funds remain unused, as many migrants are unaware of their entitlement to these benefits.

The Ministry of Women, Children, and Social Welfare (MWCSW), in consultation with NGOs, prepared and approved two policy initiatives: the National Minimum Standards for Victim Care and the Standard Operating Procedures for shelter homes. The MWCSW reported it continued to partially fund eight NGO-run shelter homes for female victims of trafficking, domestic violence, and sexual assault. The MWCSW also reported it continued to fund emergency shelters across the country for victims of trafficking and other forms of abuse, run by local women's cooperatives. The government reported that it assisted 438 females in government-funded shelters in the 2010-2011 fiscal year, although there was no information whether these females were trafficking victims or victims of other forms of abuse. Most of the funds the government has allocated for protection efforts have remained unspent, and in practice many trafficking victims did not receive legally mandated compensation. The government did not have an official process to refer victims to shelters. All facilities that assist trafficking victims were run by NGOs and most provided a range of services, including legal aid, medical services, psychosocial counseling, and economic rehabilitation. Some of these shelters limited victims' freedom of movement and controlled their access to money. There were insufficient facilities to meet the needs of all survivors and there were no protective services for males. Limited protections for victims negatively affected law enforcement efforts. The government did not routinely encourage trafficking victims to participate in investigations against their traffickers, but anecdotal reports noted that individual police officers increasingly encouraged victims' participation.

Prevention

The Government of Nepal increased its efforts to prevent human trafficking during the reporting period. In August 2011, the National Committee for Controlling Human Trafficking established a secretariat and the government appointed a coordinator under the oversight of a joint secretary. The Secretariat organized the government's participation in the fifth annual national anti-trafficking day. NGOs state that the majority of the District Committees for Controlling Human Trafficking do not function well or are not active. The lack of political stability and resources has hampered translating commitments into actions. The prime minister visited a leading anti-trafficking NGO in October 2011. The government endorsed the National Plan of Action on Trafficking in Persons in March 2012.

Chapter 9 of the 2007 Foreign Employment Act (FEA)criminalizes the acts of an agency or individual sending workers abroad through fraudulent recruitment promises or without the proper documentation, prescribing penalties of three to seven years' imprisonment for those convicted. Fraudulent recruitment puts workers at significant risk of trafficking. The Foreign Employment Tribunal – which hears cases based on the FEA – is based in Kathmandu without branch offices. This limits the ability of victims outside of the capital to file cases. The government reported data on prosecutions and convictions under the FEA, but given capacity constraints was unable to provide the number of prosecutions and convictions under the fraudulent recruitment section of Chapter 9 of the Act. During the year, the Foreign Employment Promotion Board continued to conduct safe migration radio programs throughout the country, and increased the reach of its programs to all 75 districts, compared to 50 districts the previous year. The government worked with UNICEF and UNHCR to increase birth registrations. In order to reduce the demand for commercial sex acts, the government raided establishments suspected of child sex tourism and arrested clients; however, with poor identification procedures, some sex trafficking victims also were arrested. All Nepali military troops and police assigned to international peacekeeping forces were provided pre-deployment anti-trafficking training funded by a foreign government. Nepal is not a party to the 2000 UN TIP Protocol.