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Cross Border Human Trafficking in Nepal

Cross Border Human Trafficking in Nepal: Some Considerable Issues[1]

 

Dr. Ram Krishna Timalsena

I.                   Introduction

Trafficking is one of the serious problems of the day inNepal. It is a means of exploitation of women and children by forcing them into the sex industry, domestic and factory labor, organ transplantation and illegal adoption. The biggest number of trafficking exists in the form of cross-border trafficking in young women and children fromNepaltoIndia,Bangladesh,Hong Kongand to the gulf countries. In this respectNepalis not a recipient country but a supplier where from trafficking originates.  Another trend of trafficking is the increase in internal trafficking from rural to urban areas for prostitution. A number of factors like poverty, lack of education, social discrimination and exclusion, non-functional family structures, open border, archaic laws and ineffective law enforcement and policy implementation mechanisms, have been identified as the main causes for the increasing of trafficking in human being inNepal.

Before initiating the discussion it is useful to know the facts about human trafficking in general. In the world, there are about 700,000 to 2 million people mainly women and children who are being trafficked every year. About 10 million trafficked people, predominantly women and children, are living in subhuman conditions. As reported, human trafficking is the third largest illegal trade in the world that makes annual profit up to $5 billion to $7 billion after drugs smuggling and gun running. The present ratio of trafficking in children is already 10 times higher than the trans-Atlantic slave trade at its pinnacle. It is the fastest growing form of forced labour. [2]

As reported by the Times News Network, [3] every year, 5,000 to 7,000 women and children ofNepal are trafficked intoIndia for forced prostitution. 20% (i.e. 40,000) of trafficked Nepali women and children for sex trade inIndia are girls below 16 years of age. Except for sex trade, thousands of Nepali children are trafficked intoIndia to work in carpet factories in Bhadoi (Mirjapur), circus (e.g. Firojabad), potato farms, road construction in Shimla, forced beggary (e.g.. Banaras), domestic child labour inDelhi, Kolkata, Mumbai, etc. The earlier belief that only girls from specific geographical area and community are being trafficked has been proved false. Rather, this crime has expanded to every area and community including boys and men.

In view of the rising scale of the problem of cross border trafficking and the concern for protecting and promoting basic human rights of common Nepali citizens the paper sheds light on some considerable issues of human trafficking inNepal.

 

II.    Definition

There is no universally agreed definition of trafficking. It ranges from voluntary, facilitated migration to the exploitation of prostitution, to the movement of persons through threat or use of force, coercion, violence, etc. for certain exploitative purposes.

The concept of trafficking has been ever changing with the passage of time. It is an ever changing concept. The parameters of human trafficking are also repeatedly shifting. With the change in economic, social and political conditions, the constituent elements of trafficking are also changing. Not only the purposes of human trafficking change but the ways are also changing. However, the fundamental element of human trafficking is the same. The very core element of trafficking is the recognition that trafficking is never consensual. It is the non-consensual nature of trafficking that distinguishes it from other forms of migration. The lack of informed consent must not be confused with the illegality of certain forms of migration. While all trafficking is, or should be illegal, all illegal migration is not trafficking. Therefore, the concepts of trafficking and illegal migration should be understood separately. At the heart of this distinction is the issue of consent.

Records and research show that trafficking takes place for a number of exploitative purposes to which trafficking victims have not consented. It includes inter alia, forced and/or bonded labour, sex trade, forced marriage and other slavery-like practices. In view of this one may suggest a liberal definition of trafficking that encompasses the common elements of the trafficking process. The common elements are the brokering, accompanied by the exploitative or servile conditions of the work or relationship in which the trafficked person ends up. Moreover, the definition of trafficking must distinguish trafficking as a separate violation from its constituent parts.

The UN Special Rapporteur uses the following definition of trafficking:

Trafficking in persons means the recruitment, transportation, purchase, sale, transfer, harboring or receipt of persons:

(i) By threat or use of violence, abduction, force, fraud, deception or coercion (including the abuse of authority), or debt bondage

(ii) Placing or holding such person, whether for pay or not, in forced labor or slavery-like practices, in a community other than the one in which such person lived at the time of the original act described in (i).

Subsection (1) of the definition covers all persons involved in the trafficking chain: those at the beginning of the chains, who provides or sells the trafficked person, and those at the end of the chains, who receive or purchase the trafficked person, hold the trafficked person in forced labor and profit from that labor. Criminalizing the activities of all parties involved throughout the process of trafficking would facilitate efforts to both prevent trafficking and punish traffickers.

Current definition of trafficking focuses on forced labor or slavery-like practices, rather than narrowly focusing on prostitution or sexual exploitation. Experience shows that trafficking is undertaken for several purposes, including but not limited to prostitution or other sex work, domestic, manual or industrial labor, and marriage, adoptive or other intimate relationships. The common elements found in all of the trafficking patterns are:

 

  • the lack of consent;
  • the brokering of human beings
  • the transport; and
  • the exploitative or servile conditions of the work or relationship.

 

III. Relevant Issues

  1. Whether we should criminalize or decriminalize or regularize prostitution and trafficking?

There may be different laws that touch upon the issue of trafficking. It is not only the issue of human rights but also the issue of criminal law and social justice. Likewise, labor laws, laws relating to immigration and public health etc. are equally pertinent in this issue. Prostitution can be decriminalized within the legal framework with some regulation if it is voluntary and if there is no element of exploitation. Trafficking is the matter of criminal law. It is wider than the prostitution.  However, a wise policy on the scope of criminalization, decriminalization and regulation must be developed in view of right-based approach. After being clear in the approach we have to update or laws in tune with changing need.

  1. Whether trafficking is unilateral or bilateral or multilateral issue?

Trafficking is connected with migration and it involves a number of issues. It should not be treated as a national problem alone. Rather, it is an international problem. This problem must be solved through various means. National efforts as well as regional and global collaboration are required to fight against this problem. Therefore, suitable strategies should be developed in this regard. Bilateral arrangements and multilateral agreements may require to cope with this problem.

 

IV. Prostitution insideNepal

 

Nepalhas certain communities whose traditional culture perpetuates prostitution. These are the Badis and Deukis of westernNepal. In Dang, Salyan, Rukum, Pyuthan, Banke,Kailali Bardiya, Surkhet and Dailekh districts the Badi community women earn their livelihood as singing and dancing girls for the local rich who reward them. With the change of social system their profession is in risk so they took up prostitution as the means of livelihood. The girl children from the Badi mothers usually go to the same line of work. There are other similar traditions like Jhuma, Kumari and Gandharva in different parts of the country contributing to the tradition of prostitution. Baitadi and Dadeldhura districts have a tradition of Deukis (the divine girls). In this tradition, virgin girls were presented to the god in certain temples in exchange of blessings of property, wealth and social status. Poor family sold their girls to the rich for an offering. These girls are not allowed to marry. These girls under compulsion turn to the prostitutes.

Besides culture and traditions socio economic factors of the country contribute for trafficking and prostitution. The increasing number of children pushed into prostitution due to poverty, ignorance, child marriage, conflict situation which is a matter of great concern.

There are various reasons of this problem. But the main reason for this problem is thatNepalis an agrarian nation that lacks sufficient economic base, infrastructure and developed human resources. About 90% of its 23 million people rely on subsistence agriculture. Adult literacy is as low as 23 percent for females and 57 percent for males.

Two third of sex workers in Nepalstate that they entered sex work by choice. While 38%cited influence by female friends, 9% by other family members 6% by pimps 4% by brothel owners and 4% by mothers.[4] However, the distinction between entry into sex work via trafficking and coercion versus voluntary entry is often not clear. The same set of social familial and economic circumstances that lead women to a decision to enter sex work increase their likelihood of being trafficked. Even when women enter sex work by choice that may not know beforehand exactly what this works entails and may be unprepared for its exploitative nature.

In addition, there is a regular call girl racket where educated girls offer themselves to make some quick money. The hotel industry is alleged for supplying call girls to satisfy their customers sexually.

V.          No Authentic Statistics on Trafficking

It is said that Nepali women and girls are internationally involved in the sex trade. Trafficking in women and girls from Nepalare mostly taken to Indiato enter into prostitution. Apart from India, Nepali women and children are being sold to countries of the Gulf including Kuwait, Saudi Arabia, under the guise of employment. It is said that about 150 Nepali girls were taken to Bangladesh. Hong Kongis the second biggest market of Nepali women & children for flesh trade. 

There are no authentic data regarding the size and nature of cross border human trafficking in Nepal.[5] Of course, we find some references regarding the extent of prostitution that too is based on either on secondary data or on unreliable research. A report estimates that only in Bombay, according to the calculations of an organization of Nepali brothel staff, there are about 20,000 Nepali in the city's flesh trade -- other agencies estimate that the actual number is closer to 50,000. Most of these women and girls work for Nepali gharwalis and almost all are illiterate. Seventy percent are thought to belong to ethnic minority groups such as the Tamang, Gurung, Magar, and Sherpa.[6]  Indian government's Human Resource Development Ministry released a report in May 1994, based on a survey conducted in 1991-1992 in six Indian cities. The study found 70,000-100,000 sex workers, of whom about a half were from Nepal.[7] Some studies suggest about 100000 commercial sex workers in various Indian cities are from Nepal. Dr. I.S. Gilada, General Secretary of the Indian Health Organization (IHO), estimated on the basis of various studies conducted between 1985 and 1994 that there were between 70,000 and 100,000 prostitutes in Bombay, 100,000 in Calcutta, 40,000 in Delhi, 40,000 in Pune and 13,000 in Nagpur. Based on his statistics, Nepali social workers estimate the number of Nepali girls and women now working in Indian brothels are about 200,000 and it is believed that between 5,000 and 7,000 new Nepali end up in Indian brothels every year. [8] IIDS and UNIFEM study also concludes that reliable research is required to find the real extent of trafficking. As it cites various sources and reports that at least 5000 women and girls have been trafficked to India annually and maximum 200000 women and girls are in various Indian brothels.[9]

WithinNepal, an estimated 25,000 sex laborers are reported of which 5000 are child sex laborers in fast growing urban and semi urban centers, 1000 alone inKathmanduvalley. More than 20% of the women in commercial sex market are under the age of 16 (UNICEF 1997).

Nepal Police in 2059 BS (2002) rescued altogether 217 women and girls from various Indo-Nepalborder points which were as follows: [10]

  • Dhangadhi  27
  • Thankot  25
  • Dhanusha 25
  • Morang  23
  • Banke  117

Likewise, Maiti Nepalhas intercepted and rescued 395 and 359 persons in the years 2000 and 2001 respectively.[11] Moreover, the Census of 2001 reveals that altogether 82,712 women were absentees. Out of them 40.6% were absent without known reasons. Among the absentees how many were trafficked to different countries? No research has been conducted on this issue so far.

 

Court Cases

An analysis of the cases related to human trafficking that were registered before the various tiers of the courts reveals some different picture regarding the extent of the problem. In 2000/2001 there were altogether 103 cases in the Supreme Court and 238 cases in various Appellate Courts of the country. Likewise, 158 cases were in the various District Courts. Similarly, in the year 2001/2002, there were 116, 222 and 103 cases in the Supreme Court, Appellate Courts and District Courts respectively.[12] From this one may infer that about 400 court cases are registered in various courts annually. Among those cases more than a half were carried over as backlogs of the last year. These statistics reveal that either human trafficking cases are under reported or the extent of the problem is not that large as it is reported by various reports. Likewise, if we analyze rescued cases it shows limited numbers of women have been rescued than that of estimated number. If the number is reliable as shown by different studies, at least 5000 girls and women ofNepal have been trafficked outsideNepal every year. It compels us to rethink about the role of state and civil society. It can be comparable with the present problem of internal conflict situation ofNepal. If the estimation holds true it would be more problematic than the Maoist insurgency prevailing in the country in terms of human rights violation. It is, therefore high time to find out real picture of such a grave problem. Whether there is misrepresentation in data creation or under reporting of the offence? A methodical research study is required to diagnose the extent the problem.

V. Efforts Made in National Level

Of late, there have been several efforts in controlling and combating the problem of human trafficking in Nepal. Reform in law and policies is one of the areas of efforts. The Constitution of the Kingdomof Nepalunder its part III guarantees various rights of the citizens that inter alia includes right against exploitation.  It also prohibits trafficking in human beings and forced labor in any form.Nepal has adopted a national policy to combat against human trafficking, to raise socio-economic status of the victim of trafficking. The policy also focuses on prevention of crime and protection and rehabilitation of the victims of trafficking. The human trafficking Control Act 1986 prescribes severe sentence for the offence of trafficking.Nepal, as a party to at least 18 international instruments, has legal obligations to control the offence of trafficking. The Convention on the Suppression of trafficking and the Exploitation of the Prostitution of Others, 1949, the Convention on the Elimination of all Form of Discrimination against Women, 1979 and the Convention of Rights of Child, 1990 etc are the major instruments among others where Nepal has been a party.Nepal has also supported regional instruments called the SAARC Convention on Regional Arrangements on Child Welfare inSouth Asia and Regional Convention on Combating the Crime of trafficking in Women and Children for Prostitution on regional level.

As it is understood, trafficking as a cross-border offence cannot be dealt with successfully at the national level alone. Rather, it should be addressed internationally. It is high time that some special measures need to be initiated in the bilateral or multilateral level.

VI. Major Legal Instruments

  • Interim Constitution ofNepal, 1990
  • Human Trafficking ( control) Act, 1986
  • Muluki Ain (National Code), 1963
  • Some Public Offences and Punishment Act, 1970,  
  • The Children Act, 1992,
  • The State Cases Act, 1993
  • The Treaty Act, 1990

ยท         The Foreign Employment Act, 1985

  • Convention for the Suppression of the Traffic in Person and of the Exploitation of the Prostitution of Others-1949.
  • Convention on the Rights of Child-1989
  • Convention on the Elimination of all Form of Discrimination against Women, 1979
  • SAARC Convention on Prevention and Combating Trafficking in Women and Children-2002:
  • The Forced Labour Convention (No. 29, ILO)

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