In the Nepali context, human trafficking is largely seen as taking a woman to neighbouring India to sell her and eventually force her into the flesh trade.
Amending the laws as per the protocol would ensure adequate compensation to the victims and tough punishment to the traffickers
However, with hundreds of thousands of youth, including girls, leaving the country annually for employment overseas, it has become necessary to broaden the definition of human trafficking and also differentiate between human trafficking, migrant workers and human smuggling. Sexual exploitation apart, issues of forced labour exploitation keep surfacing time and again during migration for work in different parts of the world. This means, Nepal's existing laws will need to be amended so as to make them compatible with the Palermo Protocol that the Nepal government ratified last year. The Palermo Protocol, or the UN Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children, is a supplementary treaty to the United Nations Convention against Transnational Organised Crime. The protocol has not seen any objection from any country, and is, therefore, widely accepted.
In 2007, Nepal enacted a new law on organised crime, which is definitely better than the one it replaced, but it has failed to define human trafficking as a form of organised crime. The Palermo Protocol defines forced labour as a crime of human trafficking, but our laws do not. While addressing forced labour, our laws take into account only bonded labour of the Kamaiyas and Haliyas.
But what about those who seize identity documents of the workers, as is the case with many companies in the Middle East, literally holding them hostage, or hold back pay under different pretexts? Also, the existing laws do not treat Nepal as a transit and destination country for human trafficking victims.
But it is a fact that girls from Bangladesh and Sri Lanka have been trafficked to third countries through Nepal. While cases of Nepali victims who are trafficked to foreign countries are addressed under the Human Trafficking and Transportation (Control) Act, it does not ensure the same right to foreign victims who are trafficked to Nepal. Thus, Nepal must take a comprehensive approach to addressing human trafficking and human smuggling.
Now that Nepal is a party to the Palermo Protocol, it requires amending quite a few acts, namely, Human Trafficking Act, Foreign Employment Act and even the Immigration Act, 1992. This is necessary, as quite a few victims who had been trafficked under the guise of foreign employment filed cases under the Foreign Employment Act as it fetched higher monetary compensation than the Human Trafficking Act. Amending the laws in line with the Palermo Protocol would ensure adequate compensation to the victims besides tough punishment for the traffickers.
Amending the Immigration Act is necessary to prevent persecution of the victim for overstaying, whether elsewhere or in Nepal, otherwise he or she could be a double victim. The Palermo Protocol takes into account prevention, training and creating awareness to control organised crime. As such, the government is obligated to create awareness among the people as to why human trafficking is taking place and look for ways to prevent it.
Open the border
The government decided to reopen around 30 border points between Nepal and India last week.
They were closed on March 24 last year, following the outbreak of the coronavirus. Most of the border points have now been reopened after infections from COVID-19 seem to be waning and both the countries started vaccinating their people. But the Kakadbhitta border point in eastern Nepal has yet to reopen. The border point that links the people from both the countries has remained shut due to reluctance from the Indian side.
Quite a few motorcycles and city rickshaws are allowed to cross the border. As Nepal and India enjoy an open border, the busy border point should not be closed for a long time. Even if the border is closed, the people from both the sides can use other illegal routes to cross the international border. As result of its closure, people from both the sides have not been able to purchase goods and medicines or undergo health check-ups. The Nepal government needs to hold talks with the Indian authorities about reopening the Kakadbhitta border point at the earliest so that people can travel between the countries without any bureaucratic hassle.
A version of this article appears in the print on February 8, 2021, of The Himalayan Times.