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NARAYAN PRASAD SHARMA*
1. Introduction
Human trafficking or trafficking in persons refers to an ignoble form of modern-day slavery involving illegal transport of individuals by force, deception, or enticement for the purpose of labour, sexual exploitation, organ harvesting, or other malign activities which benefit the perpetrators financially. It is a problem affecting people of all ages, nationalities and communities; but women, girls and indigent populations constitute a disproportionate majority of the victims in almost every jurisdiction.
Trafficking of human beings has reached an alarming proposition. Long back, it was ranked as the third largest criminal industry in the world, right behind arms trafficking and drug trafficking. According to a 2002 Report, anywhere from 700,000 to 4 million persons worldwide had been trafficked across or within national borders every year. Human trafficking was (and still is) considered as the fastest growing global criminal industry, with high profits, low risks, minimal capital investment, and a “commodity” that can be used over and over again.[1] According to a 2014 Report by the International Labour Organization, human trafficking generated roughly USD 150 billion in profits, which was 3 times more than the prior estimates. While it is important to note that the Report has collectively considered the profits in the greater subset of “forced labour”, it cannot be denied that the institution of human trafficking is growing by leaps and bounds and is also emerging in different form factors.
Human trafficking and slavery can be traced back to the prehistoric times. Wars, conflicts, and financial greed perpetuated slavery and human trafficking as an evil institution. A perfect example in this regard could be that of the Roman Gladiators. In the 19th-20th century, the institution saw more growth due to the African slave trade, colonization and numerous wars. Nepal is also plagued with the problem of human trafficking and transportation, serving more as a country of origin and less as a transit. This article deals with the present form of trafficking practices and laws in Nepal, along with some theories to determine the cause and effect.
1.1 Act, Means and Purpose
According to Article 3 of the UN Trafficking in Persons Protocol (Palermo Protocol)-for human trafficking to take place, it must accomplish the elements of act, means, and purpose”. Under the requirement of “act”, the trafficker must commit the act of transport, recruitment, harbour, receipt or transfer of a human being. Elements of “means” entail coercion, deception, violence or threat of violence, abduction, receipt of payment/benefit, fraud, or abuse of power. The “purpose” of conducting such an “act” through those “means” should be for exploitation which includes, inter alia, sexual exploitation (not limited to prostitution), forced labour or servitude, removal of organs, or slavery (including practices similar to slavery).
Following a partly similar pattern as that of the Protocol, Section 4(1) of the Human Trafficking and Transportation (Control) Act (HTTCA), 2007 stipulates that “human trafficking” includes the acts of selling or purchasing of a person for any purpose; or using someone for prostitution, with or without any benefit; or extracting human organ except otherwise determined by law; or to solicit prostitution. Section 4(1)(d) (i.e. soliciting prostitution) criminalises prostitution, paying for sexual services, and living off of the earnings of prostitution by including it in the definition of human trafficking. As decided by the Supreme Court of Nepal, the consent obtained from the poor and unemployed victims for getting involved in prostitution is irrelevant in dealing with the offence of human trafficking and transportation.
Further, the apex court has also clarified that for an offence under Section 4(2)(b) to occur, there is no requirement for the act of transportation to have been completed or for the act of selling of the person to have actually taken place. This offence can occur even before the victim could be whisked to the desired destination. Similarly, it can be observed in the case of Krishna Pd. Pudasaini v. HMG, as decided by the Supreme Court that the offence of trans-boundary human trafficking shall arise if (a) migration is proven and (b) if it is proved that motive behind the migration was for the purpose of human trafficking outside of the country.
Likewise, Section 4(2) of the Act, defines “human transportation” as taking a person out of the country for the purpose of buying and selling them or taking of a person from their home, residence or from a person by using means of enticement, inducement, misinformation, forgery, tricks, coercion, abduction, hostage, etc., on the person or their guardian or custodian and keeping them into one’s custody, or to take to any place within or outside Nepal, or handing over them to someone else, all for the purpose of prostitution or exploitation. Now, Section 2(1)(e) of the Act defines “exploitation” as “an act of keeping human being as a slave and bonded and this word also includes removing human organ(s) except otherwise provided by the prevailing law.” While the concepts human trafficking and human transportation may seem to be similar at the first eye, there is an underlying difference between the two offences. As can be observed from Section 4(1) of the Act, human trafficking includes all the elements of act, means and purpose. The final objective of extracting organs, prostitution or selling/purchasing should already have taken place. In Section 4(2), however, only the act and the means may be observed but the final purpose of prostitution or exploitation have not yet taken place. It is for this reason that a disparity in punishment between “human trafficking” and “human transportation” may be observed in Section 15 of the Act.
1.2 Labour Migration and Human Trafficking Nexus
Labour migration that transpires for foreign employment is often a medium for human trafficking. This is observed in both formal and informal economies. The willingness of the victims to depart from their home country for employment and to endure risks in the migration process is driven for the most part by poverty, insufficient education, and lack of domestic employment opportunities. High rates of such emigration is expected to increase the risk of human trafficking as (i) traffickers benefit from lower recruitment costs and free-riding opportunities there and/or (ii) those departing from high-migration areas can be more easily deceived and trapped. Simply, one can put this as, “traffickers fish in the stream of migration”- more people departing means more people at risk, and the traffickers’ coffers swelling. Friebel and Guriev model the market of debt-financed migration with debt/labour contracts where they ascertain how criminal intermediaries and smugglers offer loans to potential migrants who cannot afford the employment expenses in advance and coerce them into the possible risk of exploitation and human trafficking. Nepal’s remittance to GDP ratio (among the highest in the world) shows how foreign employment lures its majority population, thus making people more prone to human trafficking.
2. Maslow’s Hierarchy of Needs Theory: A Model to Study Human Trafficking
Insofar as the theoretical model for defining the incidence of human trafficking is concerned, in my view, the Maslow’s hierarchy of needs theory fits the bill. In a 1943 paper titled “A Theory of Human Motivation,” American psychologist Abraham Maslow theorized that human decision-making is undergirded by a hierarchy of psychological needs. In his initial paper and a subsequent 1954 book titled Motivation and Personality, Maslow proposed that five core needs form the basis for human behavioural motivation. They include the physiological needs (food and clothing), safety needs (job or income security), love and belonging needs (friendship and affection), esteem needs, and self-actualisation needs, arranged in a low to high order in the necessity pyramid. Needs that are lower down in the hierarchy should be fulfilled first before individuals can move higher up in the strata of needs. However, this does not entail an “all or none” phenomenon. It is false to assume that a “stratum” must be completely fulfilled before moving upwards in the “stratum”.
In case of subjects of human trafficking originating from Nepal, many people at the bottom or the lower end of socio-economic strata have only their first hierarchy of needs met, i.e. the basic necessities of food and clothing. Many are still half-way into satisfying this elemental need. However, the second category of safety needs is still not realised fully and reliably by a vast chunk of the population. These disadvantaged people at the lower rung of socio-economic spectrum eventually become soft targets of human trafficking racket owing to their vulnerability towards fake assurances of a secured life abroad and prospects of prosperity back at home. They are ready to shoulder the risks for moving out of the debt trap and perpetual poverty and thus easily buy into the trafficker’s narrative.
The rapid surge in rural to urban migration has made living a rural and agrarian life less glamorous for many village dwellers. Lack of organized markets and accessible agro-infrastructure (i.e. irrigation, fertilizers, technical knowhow and soft loans) have made agriculture a less attractive profession of late, in terms of financial returns. This has spawned the displacement of a huge majority of workforce from the traditional agricultural sector over to other gainful sources of employment. However, the service and industry sectors, which would have absorbed the redundant manpower from the agricultural field, have not gained resilience yet.
The picture is further bleak due to the ongoing COVID-19 pandemic that has put all sectors of economy in dire straits for the past one and a half year. Thus, with agriculture failing day by day and other alternative sectors of economy still in shambles, reeling from the fallout of the pandemic and other adversities, foreign employment remains the last hope to earn a quick buck, even if it is orchestrated underground with an eye on human trafficking. Not only the low income peasants, even working professionals drawing a median salary and having decent academic qualifications are falling into this lure, in hope of swiftly turning their economic and social fortunes. So, Maslow’s hypothesis seems to be playing out vividly, here and now. This also calls for the need to provide generous opportunities of self-employment and entrepreneurship by the state before we can pull a plug on foreign employment, either in its legal or illegal iteration, and replace this trend with domestic initiative and local opportunities. The internal production system should meet with local skill building and capital creation.
3. Human Trafficking in Nepal
There are primarily three routes of human trafficking active in Nepal at the present. Firstly, the smuggling of gullible, indigent women and girls from remote villages to the urban centres of country including Kathmandu valley, Pokhara, Butwal, Birtamode and Nepalgunj for illicit activities including flesh trade. The biggest consumer of this inland trafficking victims is the adult entertainment sector (AES). Trafficking of destitute, less educated women and girls from interiors of Nepal to the brothels of India and bars or restaurants of Tibet may also be witnessed. Further, spiriting men, women and girls overseas by using India, Bangladesh, Myanmar, Sri Lanka, Thailand or the United Arab Emirates as transit points, especially to destination countries in Africa, Gulf, Europe, and the United States, has also been noticed.
3.1 Historical Background
Officially, the history of foreign employment reflects that opting for foreign employment began with the establishment of First Gorkha Regiment by the British East India Company during the early 1800s. Even before this, Nepalese have fled excessive taxation, coerced labour, and indifference of the state. Coupled with the advent of globalization and liberalisation of the political system and economy in Nepal, a huge number of Nepalese youths and families began to scour overseas in search of better opportunities to support themselves and their families. Likewise, the climax of post industrialisation in America and Europe and excessive financial reserves in the Middle East spurred by the petroleum boom, opened up new vistas of opportunities to the low income youths of Nepal in the form of foreign employment. The signing of the Indo-Nepal Treaty of Peace and Friendship (1950) between Nepal and India, which established an open border and free movement between permitted Nepalese nationals to work without a visa or passport in India marks the formal genesis of foreign employment in Nepal.[2]
After the outbreak of civil war in 1996, triggering a massive rural to urban migration, human trafficking gained momentum in Nepal. As people began to be harassed by both the Maoist belligerents and the state security forces, they fled to cities and towns in pursuit of safety. As the urban centres could not provide sufficient employment and income opportunities to the huge swath of internally displaced persons (IDPs), they became easy targets for the human smugglers. This trend has only ripened with time, even after the Maoists dropped their arms and joined the mainstream politics in 2006. This period marks the commencement of human trafficking under the guise of foreign employment.
3.2 The Status Quo
Currently, 172 countries are open for foreign employment purposes to the Nepalese nationals. The government has opened 110 countries for migrant workers through institutional channels.[3] However, data from 2018/19 reveal that there is high concentration of Nepali migrant workers mainly in Qatar (31.8%), Saudi Arabia (19.5%), and UAE (26.5%) and in Malaysia (4.2%). This high concentration is much pronounced in the case of male migrant workers. However, as for female migrant workers, the destination countries are relatively diverse.
The government currently operates a recruitment agency licensing system, and fraudulent and abusive recruitment practices have been criminalised under the Foreign Employment Act (FEA), 2007, including 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 law has been partial and lackadaisical, with only a few manpower agencies being prosecuted each year for offences under this Act, and only handful of them being ultimately convicted. This disparity stands in stark contrast with the overwhelming number of complaints filed by returnee migrants against the erring manpower agencies. However, incidents of some crooked migrant workers filing fake complaints against upright recruitment agencies upon their return home to cover their own failures or infractions abroad are also not uncommon. Nonetheless, there have been a few instances of positive steps taken with regard to this Act. For example, removing sub-agents from the foreign employment business has led to a drop in instances of fraud in foreign employment business.
With an average of 1,400 Nepalese migrant workers leaving Nepal every day for foreign employment, during the fiscal year of 2018/19, international labour migration forms an important part of the lives of Nepalese citizens.. Poor, uneducated and rural people being the most vulnerable implies that the local levels should be the ones that Nepal should keep the most focus on, as they have become a breeding ground for potential victims. The recent setbacks faced by the nation such as the disastrous earthquake of 2015, the Indian blockade of 2015-16 and the raging outbreak of COVID-19 all have colluded to further exacerbate the vulnerability of the population at risk, as their regular means of income and livelihood have been severely compromised. This further highlights the nexus between Maslow’s theory and human trafficking in Nepal.
4. Incentives of Human Trafficking
Human trafficking patterns are state-specific in nature which are often influenced by the economic, social, and cultural factors. In the context of foreign employment, search for better quality of life than that available in domestic setup, pushes people to migrate and fall into the cesspool of human trafficking. Traffickers prey on unfortunate circumstances, weaknesses, unfamiliarity and inexperience of victims which is furthermore aggravated by the following incentives:
4.1 Open Border
The open and porous border has become an indirect enabler of human trafficking into and via India and has made anti-trafficking efforts elusive for the public and private agencies to implement. This nearly 1850 km long border has unfortunately developed into one of the busiest locations for the trafficking of humans. Sex industry of India is fed also by the women and girls trafficked from Nepal. Although traditionally, Nepal to India shipment was the most prevalent form of human smuggling, today the pattern has shifted to third country trafficking with Indian cities like Delhi, Mumbai and Kolkata being utilized as the launch pads or transit hubs.
4.2 Illegal Migration
Nepalese migrants today may be found in several outlier countries with which Nepal is not historically connected by trade or diplomacy – like Malawi, Madagascar, Nigeria, Togo and Senegal – which is a testament to the prolificacy of underground human smuggling, under the skin of foreign employment.
4.3 Fraudulent Consultancies, Adoptions and Marriages
Many educational consultancies are ominously engaged in the functions of manpower companies or foreign recruitment agencies, a duty that they are not legally allowed to discharge. Trafficking is further done under the guise of adoption of minors from the unregulated children’s homes and orphanages. Women are also siphoned to South Korea and other countries by dubiously marrying them off to foreign nationals.
4.4 Feminization of Poverty
Women are among the groups most vulnerable to human trafficking. Nepal continues to bar women from taking housemaid jobs in the Gulf countries. Upon the instructions of members of the parliamentary International Relations and Labour Committee, who had made a 10-day visit to the Gulf countries in April 2017 to take stock of the working conditions and other aspects, the ban was introduced. However, studies commissioned afterwards have suggested the ban has resulted in more bad than good for women migrants. Further, the age-based ban has not discouraged younger women from migrating; it has no to little effect on the treatment of women workers by their employers; it may have increased irregular migration and a risk of trafficking. The age ban also has resulted in undermining the economic and social opportunities for women. Similarly, the ban has been criticised as it is likely to render women more vulnerable and drive female migration further underground. Such bans may lead to financial restraints thus promoting trafficking to India for the purpose of prostitution.
5. Performance of the Legal Mechanisms
The Constitution of Nepal ensures a right against exploitation under Article 29 as a fundamental right under which no one shall be subjected to trafficking, slavery and servitude. The National Human Right Commission Act, 2012 contains complaint procedures for human rights violation entailed by human trafficking as well. Nepal has ratified several international instruments including the UN Convention against Transnational Organised Crime, ILO Convention No. 29 (Forced Labour Convention) to combat trafficking and forced labour. However, the adoption of these international obligations is still not matched with effective enforcement.
The Palermo Protocol was ratified in 2020 by Nepal. Thus, in compliance with the Protocol, there is a need to broaden the definition of human trafficking. For instance, the Palermo Protocol includes forced labour within the ambit of human trafficking. However, the current Nepalese law does not. Further, the HTTCA does not treat Nepal as a destination country or as a country of transit. However, evidence suggests that Nepal has been used as a country of transit as well. Further, Nepal fails to comply with the Protocol in its immigration policies. The HTTCA lacks features of restorative justice and thus, many victims are found to file cases under the FEA, 2007 as they would receive more compensation in comparison to the HTTCA. The HTTCA is still archaic, includes the crimes that need not fall under trafficking (such as seeking and offering voluntary prostitution services), but fails to criminalise some forms of sex trafficking and labour trafficking. The Act has been criticized for confusing sex work with sex trafficking, as may be observed even in the judgements passed by the Supreme Court. Additionally, the extra-territorial jurisdiction of the Act is still not fully implemented.
The FEA, 2007 is also not streamlined either. The time has now come to address Nepal to India trafficking, under the veneer of foreign employment in this Act, as the Indian cities are increasingly being used as hotbeds for third country trafficking. Although Section 22(2) and (3) of the FEA requires obtaining pre-approval from the Department of Foreign Employment before someone moves to a third country via foreign airport for seeking foreign employment, it is not put into rigorous practice. The nexus between crooked foreign employment agents and corrupt immigration officials at the international airport has only complicated matters further.
The government has adopted a policy of permitting overseas labour migration only through the companies licensed for foreign employment (Section 5(1) of the FEA) or at the initiative of the concerned individual itself under Section 21. However, the traffickers evade this guardrail by sending the migrants in visit visas or by acquiring individual labour permits in their names.
A majority of such people end up being cheated or defrauded. Many of them would not draw the salary or benefits of which they were promised and others would be subject to appalling labour conditions amounting to bondage labour. They have little to no social safety nets, Medicare, insurance and recourse to legal avenues. Due to the lack of valid paperwork, even rescuing them invites significant official hurdles. The women migrants are even forced to offer sexual favours for their masters. Adding to the agony, almost all of the government and non-governmental plans, programs and investments have been overwhelmingly centred on the plight of female victims of trafficking, thereby leaving the equally unfortunate male migrants ruthlessly deprived from serious protection efforts.
Due to obscurity over the actual purpose and coverage of the HTTCA 2007 and FEA 2007, many crimes under foreign employment are over-prosecuted as trafficking offences and alternately, many trafficking offences are under-prosecuted as foreign employment crimes. The relative power relation between the victims and perpetrators also plays a part in the selection of laws while pursuing a criminal case.
6. Control Measures
A dedicated and specialized Anti-Human Trafficking Bureau has been created under the Nepal Police in 2019 which investigates cases of organized human smuggling, previously done by other police offices and the Central Investigation Bureau. However, there is a still a need to have the allegations of official complicity in trafficking crimes to be rigorously investigated. It has to be ensured that none of the perpetrators are let off the hook. The existing HTTCA, 2007 should be so amended as to criminalize all forms of sex trafficking and labour trafficking in consonance with the Palermo Protocol.
The FEA, 2007 also needs to be revised for reining in the illegal Nepal to India migration, permeating under a grander scheme of human smuggling. The front-line responders should be suitably trained and equipped for precisely identifying, and referring the survivors of human trafficking that had fell for the lure of foreign employment, towards legal redress and rehabilitation services. Impetus should also fall on the capacity building of offices and professionals engaged in anti-trafficking duties through better budget and logistics allocations, sounder interagency rapport and coordination, provision of timely trainings and multiagency workshops. The standard operating procedures (SOPs) for law enforcement should be put into place to investigate and prosecute human smuggling cases in a more synchronized fashion.
The government agencies have to be nudged to more rigorously implement the provisions of victim and witness protection/relief under the HTTCA, 2007 and FEA, 2007 so that better cooperation may be expected of them in bringing the wrongdoers to book. Any future amendments should lend a veritable conceptual clarity to the offences falling under the FEA, 2007 and under the HTTCA, 2007; thereby reducing the chances of mismatched prosecution in cases that fall in the borderline between the two, which may possibly result in higher conviction rates at the courts. The policy framers should be better assured to lift current bans on adult female migration and engage the governments of destination governments to create rights-based, enforceable agreements that safeguard Nepali migrant workers from human trafficking and unethical working conditions.
In addition, the regional cooperation mechanisms to tackle migrant smuggling and smugglers operating across borders should be bolstered through effective enforcement of existing SAARC mechanisms, and creating joint task forces on curbing the illegal traffic of migrants. International bilateral cooperation between countries of origin, transit and destination should be galvanized for better information sharing on trafficking of migrants and for the due protection of rights of migrants within foreign territories. The protection of smuggled migrants and trafficked victims has to be attached top priority among the Nepalese diplomatic missions in transit and destination countries. The access services and consular assistance need to be better streamlined, ensuring that diplomatic missions are sufficiently staffed and trained to handle all issues faced by this category of victims.
Further, the body of evidence-based knowledge should be enhanced to better inform policy-making, create and share information on the modus operandi, routes and economics of migrant smuggling networks. The capacity of law enforcement to efficiently investigate and prosecute smuggling networks, seize and confiscate their assets also has to be reinforced. Holistic and overarching approaches should be adopted to generate public awareness on migrant smuggling and its ill effects at the proper smuggling hotspots so that the people and communities will be empowered enough to make wise and informed decisions on their own. The role of community-level migrant networks must be strengthened and protected from being misused by exploitative employers and traffickers.
Finally, the malaise of human smuggling through foreign employment has become so chronic and entrenched that sole efforts of a single state level do not suffice to stem the tide. Accordingly, the centre, the provinces and local levels should forge an alliance and work in tandem by adopting common approaches and redresses. The support and expertise of community based organizations, civil society and mass media also have to be roped in to this end.
*The author is an advocate, author and a legal researcher. He is a lecturer of law at National Law College, Lalitpur. He has been assisted by Apekshya Pandey for the purpose of this article.
(This article has been prepared for informational purposes only and does not constitute legal advice. The information contained is not intended to create a lawyer-client relationship. The views expressed in the article does not reflect the the official position of the institutions to which the authors are affiliated. Readers should not act upon this without seeking advice from professional advisers.)
[1] Krishna Jeevi Ghimire and Narayan Prasad Sharma, ‘Human Trafficking Crimes: Status, Court Perspective and Control Measures’ (2017) 11 (1) NJA Law Journal 116
[2] Bandita Sijapati and Amrita Limbu, Governing Labour Migration in Nepal: An Analysis of Existing Policies and Institutional Mechanism (2nd edn, Centre for the Study of Labour and Mobility 2017)
[3] Keshav Bashyal and Binita Subedi, ‘Labour Diplomacy and Migration Governance in Nepal’ (2021) 1 (1) Journal of Foreign Affairs 107
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