NEPAL: TIER 2
The Government of Nepal does not fully meet the minimum standards for the elimination of trafficking; however, it is making significant efforts to do so. The government demonstrated increasing efforts compared to the previous reporting period; therefore Nepal remained on Tier 2. The government demonstrated increasing efforts through increased trafficking investigations, prosecutions, and convictions. Law enforcement investigated and arrested several allegedly complicit
officials. With direct government support, NGOs opened two rehabilitation homes, 19 emergency shelters, and 19 community service centers for female victims of gender-based violence, including trafficking. The government established 312 Local Committees for Controlling Human Trafficking (LCCHTs) and issued a directive to recruitment agencies to furnish information demonstrating their adherence to the low-cost migration policy. However, the government did not meet the minimum standards in several key areas. Its laws do not prohibit all forms of forced labor and sex trafficking and it continued to lack standard operating procedures (SOPs) on victim identification and referral to rehabilitation services. Despite a large number of male migrant workers who experience abuse overseas, government protection efforts disproportionately focused on female victims, and the government did not report providing any services to male victims during the reporting period. Official complicity in trafficking offenses remained a serious problem due to both direct complicity in trafficking crimes as well as negligence. Many government officials continued to lack understanding of trafficking. Officials encouraged migrant workers who experienced exploitation abroad to register cases under the Foreign Employment Act (FEA), which criminalized fraudulent recruitment, rather than notify police of labor exploitation, and prosecutors frequently declined to charge a case under the trafficking law if it had already been charged under the FEA, despite the difference in crimes. The government maintained its policies preventing female migration in several ways, and observers continued to report the revised policies led women to use illegal methods to migrate, which subsequently increased their vulnerability to human trafficking.
RECOMMENDATIONS FOR NEPAL
Amend the Human Trafficking and Transportation (Control) Act (HTTCA) to bring the definition of human trafficking in line with the 2000 UN TIP Protocol; respecting due process, increase investigations, prosecutions, and convictions against all forms of trafficking, including bonded labor, transnational labor trafficking of Nepali males, sex trafficking of Nepali females within Nepal, and against officials complicit in trafficking-related crimes; institute formal procedures for proactive identification and referral of trafficking victims to protection services and train officials on the procedures; expand access to and availability of victim care, including to exploited workers overseas and male victims in general; penalize licensed labor recruiters who engage in fraudulent recruitment or charge excessive fees; implement victim witness protection provisions in the HTTCA; enforce the low-cost recruitment policy and continue to take steps to eliminate all recruitment fees charged o workers; ensure victims are not punished for unlawful acts committed as a direct result of being subjected to trafficking and remove the HTTCA provision reinstated in 2015 that allows victims to be fined if they fail to appear in court or held criminally liable for providing testimony contradicting their previous statements; lift current bans on female migration to discourage migration through undocumented channels; and accede to the 2000 UN TIP Protocol.
The government increased anti-trafficking law enforcement efforts. The 2007 HTTCA criminalized some forms of labor and sex trafficking. The HTTCA criminalized slavery and bonded labor but did not criminalize the recruitment, transportation, harboring, or receipt of persons by force, fraud, or coercion for the purpose of forced labor. It criminalized forced prostitution but, inconsistent with international law, required a demonstration of force, fraud, or coercion to constitute a child sex trafficking offense, and therefore did not criminalize all forms of child sex trafficking. Prescribed penalties ranged from 10 to 20 years imprisonment, which were sufficiently stringent and, with respect to sex trafficking, commensurate with those prescribed for other serious crimes, such as rape. The 2002 Bonded Labor (Prohibition) Act criminalized bonded labor and the Child Labor Act criminalized forced child labor. The FEA criminalized fraudulent and deceptive labor recruitment. For the third consecutive year, the National Committee for Controlling Human Trafficking (NCCHT) drafted revisions to the HTTCA to bring the definition of human trafficking in line with international law; the HTTCA had not been amended by the end of the reporting period.
The Nepal Police Women’s Cells (NPWCs) conducted 227 investigations under the HTTCA during the Nepali fiscal year, compared with 212 cases in the previous fiscal year. The 227 cases involved 389 alleged traffickers of whom 259 were arrested and 130 remained at large. NPWCs investigated crimes in which women and girls were the primary victims; other police investigative units handled crimes involving male victims. The Central Investigative Bureau (CIB) investigated eight transnational cases between April and December 2017, compared with 20 transnational cases and six internal cases during the same time period in 2016. The government initiated prosecutions in 303 cases during the fiscal year, an increase compared with 218 cases in the previous year, and continued to prosecute 184 cases from the previous reporting period. This data was not disaggregated to distinguish between sex and labor trafficking cases. At the district level, courts convicted 274 traffickers during the fiscal year, compared with 262 traffickers in the previous year, and acquitted 233 accused.
Legal experts stated that prosecutors could pursue a case under both the HTTCA and the FEA for transnational labor trafficking and foreign employment fraud, respectively; however, prosecutors regularly refused to do so believing such action would violate the prohibition against double jeopardy. Department of Foreign Employment (DFE) officials continued to advise abused migrant workers returning to Nepal to register complaints under the FEA rather than notify police. Victims of transnational labor trafficking preferred to submit claims for restitution through the FEA rather than pursue lengthy criminal prosecutions under the HTTCA, often to avoid the stigma associated with being labeled a trafficking victim (assumed to insinuate sex trafficking) and because the potential to be awarded restitution was higher. The government had standard training for labor, immigration, judicial, law enforcement, and foreign employment officials that incorporated anti-trafficking training. During the reporting period, the police and judicial academies hosted two separate trainings, with the support of a foreign government, on combating trafficking for police, prosecutors, NGO representatives, and DFE officials. Despite these trainings, police lacked sophisticated investigative techniques and skills to interact in a victim-centered way with trafficking survivors; these deficiencies subsequently undermined prosecution efforts.
Official complicity in trafficking offenses remained a serious problem. NGOs alleged some police and political party leaders were complicit in domestic sex trafficking because of their financial involvement in the adult entertainment sector. Observers alleged some traffickers enjoyed impunity due to personal connections with politicians or by bribing police. Some government officials were reportedly bribed to include false information in genuine Nepali passports or to provide fraudulent documents to prospective labor migrants or foreign employment agents. In August 2017, a parliamentary committee stated due to the negligence or complicity of immigration officials and police, girls and women were able to depart from the international airport without completing the required migrant work exit procedures; the committee stated up to 60 percent of Nepali domestic workers in the Gulf states were working illegally without the proper visa and safeguards. In November 2017, the commission arrested the Director General of DFE and two DFE officials for allegedly attempting to collect a bribe from a foreign employment agency; the three officials were released on bail or their own recognizance and were awaiting trial at the end of the reporting period. In December 2017, police arrested a recently-elected local official for allegedly exploiting two Nepali girls in sex trafficking in India; while the official was released on bail and awaiting trial for this offense, CIB arrested him for a prior trafficking crime for which he had been convicted in absentia and initiated his six-year term of imprisonment.
The government maintained overall efforts to protect female trafficking victims; however, protection efforts for male victims remained wholly inadequate. The government did not have SOPs for victim identification and referral to rehabilitation services, although police did have internal guidelines on the identification and treatment of victims. Authorities did not systematically track the total number of victims identified, but did identify 368 victims connected to the 235 investigations initiated during the Nepali fiscal year, compared with 419 victims identified the previous year. Of the 311 NPWCs identified victims, 67 were subjected to sex trafficking, 125 to forced labor, and 119 victims’ cases were ncategorized.
It was unknown how many of these victims were exploited abroad, although 57 victims identified by CIB were victims of transnational trafficking, primarily in Gulf states. Of the total victims identified, 89 were under age 18 and almost all were female—only four were male. Officials’ poor understanding of the crime, a lack of formal SOPs for identification, and victims’ reluctance to be identified due to stigma hindered proper and proactive identification, especially among returning male labor migrants who reported exploitation abroad. NGOs continued to report government efforts to identify domestic sex trafficking victims improved. Police increased the number of inspections of Kathmandu adult entertainment businesses and more consistently worked to screen for sex trafficking to avoid penalizing victims for prostitution crimes. When properly identified, victims were not detained, fined, or jailed for crimes committed as a result of being subjected to human trafficking.
Although the government had national minimum standards for victim care and referral to services, referral efforts remained ad hoc and inadequate. It is unclear how many victims were referred to and able to utilize services during the year. Ministry of Women, Children, and Social Welfare (MWCSW) reported its online directory, launched in the previous reporting period to catalog service providers for trafficking victims and migration-related exploitation, had not met its expectations for utilization but there were no efforts to improve it. The government decreased its contribution to provide services for female victims of violence, including trafficking, from 19 million Nepali rupees (NPR) ($186,000) during the 2016-2017 fiscal year to 10 million NPR ($97,700) for the 2017-2018 fiscal year, although this fund’s financing was cumulative and had approximately 16 million NPR ($156,000) in the fund at the beginning of the year. During the reporting period and with support from MWCSW, NGOs opened two rehabilitation homes, 19 emergency shelters, and 19 community service centers for female victims of gender-based violence, including trafficking, bringing the total of government-supported homes to 10, emergency shelters to 36, and community service centers to 123. MWCSW also supported an NGO-run long-term shelter for female victims of violence, including trafficking. MWCSW provided the NGOs funding for three staff members per shelter, some facility expenses, and victim assistance, including legal assistance, psychological support, transportation, medical expenses, and skills training, although NGOs reported this funding was only distributed if NGOs requested reimbursement. Unlike in previous years, MWCSW did not allocate funds for the protection and rehabilitation of male trafficking victims; however, according to the MWCSW, male victims were entitled to the same support as female victims and the government could re-allocate funds for their rehabilitation if male victims sought services. An NGO ran one shelter for men in Kathmandu. Victims had the ability to seek restitution from a rehabilitation fund if the government was unable to collect fines from traffickers under the HTTCA. District courts in Kathmandu, Bhaktapur, and Chitwan ordered their respective district committees for controlling human trafficking (DCCHTs) to provide restitution from the fund, and MWCSW reported DCCHTs had initiated the process for some victims.
Overall victim-witness protection mechanisms remained insufficient. Notably the victim’s right to police protection was not upheld due to resource limitations and observers stated victims were reluctant to file criminal complaints under HTTCA in part because of personal or family safety concerns. Victim protection mechanisms were also impeded by a 2015 amendment to the HTTCA that reinstated a provision allowing victims to be fined if they failed to appear in court or to be held criminally liable for providing testimony contradicting their previous statements. The government did not have established procedures for alternatives to the deportation of foreign victims.
While Nepali embassies in Kuwait, Oman, Saudi Arabia, Qatar, Bahrain, and United Arab Emirates provided emergency shelters for vulnerable female workers, some of whom were trafficking victims, the Foreign Employment Promotion Board (FEPB) acknowledged the shelters lacked sufficient space and resources to meet the high demand for assistance. FEPB collected fees from departing registered migrant workers for a welfare fund to provide repatriation and one year of financial support to families of injured or deceased workers, which could include trafficking victims. During the fiscal year, the fund provided financial support to the families of 102 injured and 810 deceased migrant workers, and paid to repatriate 50 workers. FEBP may also repatriate unregistered migrant workers by requesting funds through the finance ministry on an ad hoc basis. It is unknown if unregistered workers were repatriated during the reporting period. In December 2017, DFE launched an online application for migrant workers facing abusive or untenable situations overseas, or someone on the migrant worker’s behalf, to file a request with officials for repatriation. In the first two months of the application, DFE received 227 repatriation requests; it is unknown how many of these requests were fulfilled or stemmed from trafficking crimes.
The government increased efforts to prevent human trafficking. The government continued to establish LCCHTs and funded them through the DCCHTs. As of January 2018, 732 LCCHTs were in operation, an increase of 312 from the previous reporting period. MWCSW allocated approximately 110,240 NPR ($1,080) to each of the 75 DCCHTs to support awareness campaigns, meeting expenses, and emergency victim services. This was a slight increase from the 98,900 NPR ($970) allocated last fiscal year. While the NCCHT continued to meet with and train officials from the DCCHTs, observers continued to note the need for improved coordination between the NCCHT, DCCHTs, and LCCHTs. In January 2018, MWCSW reviewed the government’s implementation of the 2012-2022 national action plan and found the government had completed 68 percent of prevention and 52 percent of protection activities, but only 31 percent of prosecution and 21 percent of capacity building, cooperation, and coordination activities. The review also highlighted the need to revise the national action plan to align anti-trafficking programming with the constitutional transition to federalism, as well as to better address forced labor. MWCSW issued its fifth report on the government’s anti-trafficking efforts, and the National Human Rights Commission’s Office of the Special Rapporteur on Trafficking in Women and Children issued its eighth report on human trafficking. The government conducted public awareness campaigns throughout the country, sometimes in partnership with NGOs or international organizations. In nine districts, special committees continued to monitor the adult entertainment sector for abuses. Observers stated their effectiveness was limited, however, due to a lack of funding and legislation to establish the committees’ formal role.
The government’s 2015 labor migration guidelines include a policy requiring foreign employers to pay for visa and transportation costs for Nepali migrant workers bound for Malaysia and the Gulf states and restrict agency-charged recruitment fees to 10,000 NPR ($98). In April 2017, DFE issued a directive to recruitment agencies to furnish financial details demonstrating their adherence to the policy; by September 2017, 750 of 1,097 agencies had fulfilled the requirement and DFE fined 30 agencies between 50,000-100,000 NPR ($488-$977) for failing to provide details of or clarification on their adherence. Both NGOs and officials noted enforcement of the low-cost migration policy was difficult and reported employment agencies regularly charged migrant workers for visa and transportation costs and fees above the 10,000 NPR ($98) limit. In October 2017, the government signed a bilateral labor agreement with Jordan stipulating employment conditions and the employer’s responsibility to pay for migrant worker expenses such as airfare, insurance, health screenings, and visas. The government maintained its ban on migration of female domestic workers under age 24 to Gulf states and of mothers with children under age two. At the government’s invitation, the UN Special Rapporteur on the Human Rights of Migrants visited Nepal in January 2018. The UN, other international organizations, and local NGOs continued to argue any ban on female migration increased the likelihood such women would migrate illegally and therefore heightened their vulnerability to human trafficking. The government did not make efforts to reduce the demand for commercial sex acts or forced labor. The government provided anti-trafficking training for all Nepali peacekeeping forces before deployment. Nepal is not a party to the 2000 UN TIP Protocol; however, during the reporting period, MWCSW finalized its study on the costs of acceding to the protocol and the home ministry forwarded to the Cabinet a recommendation to accede to the protocol.
As reported over the past five years, Nepal is a source, transit, and destination country for men, women, and children subjected to forced labor and sex trafficking. Nepali women and girls are subjected to sex trafficking in Nepal, India, the Middle East, Asia, and Sub-Saharan Africa. Nepali men, women, and children are subjected to forced labor in Nepal, India, the Middle East, and Asia in construction, factories, mines, domestic work, begging, and the adult entertainment industry. Manpower agencies or individual employment brokers who engage in fraudulent recruitment practices and impose high fees may facilitate forced labor. Unregistered migrants—including the large number of Nepalis who travel through India or rely on unregistered recruiting agents—are particularly vulnerable to forced labor and sex trafficking. Some Nepali women who agree to arranged marriages through Nepali companies to men in China and South Korea may experience fraud and be vulnerable to domestic servitude in which their freedom of movement is restricted. Some migrants from Bangladesh, Sri Lanka, and possibly other countries transit Nepal en route to employment in the Middle East, using potentially falsified Nepali travel documents, and may be subjected to human trafficking. Some government officials reportedly accept bribes to include false information in Nepali identity documents or provide fraudulent documents to prospective labor migrants, a tactic used by unscrupulous recruiters to evade recruitment regulations. Within Nepal, bonded labor exists in agriculture, brick kilns, the stone-breaking industry, and domestic work. Sex trafficking of Nepali women and girls increasingly takes place in private apartments, rented rooms, guest houses, and restaurants. Nepali and Indian children are subjected to forced labor in the country, especially in domestic work, brick kilns, and the embroidered textile, or zari, industry. Under false promises of education and work opportunities, Nepali parents give their children to brokers who instead take them to frequently unregistered children’s homes in urban locations, where they are forced to pretend to be orphans to garner donations from tourists and volunteers; some of the children are also forced to beg on the street. Many Nepalis, including children, whose home or livelihood was destroyed by the 2015 earthquakes continue to be vulnerable to trafficking. Traffickers increasingly utilize social media and mobile technologies to lure and deceive their victims.