Cover Story (Spotlight Weekly)

VICTIMS OF TRAFFICKING
Shying Away From Justice

Trafficking of girls and women is one of the major problems faced by Nepal, which is yet to be brought under control despite commitments expressed by the government, donors, INGOs and NGOs to root out this evil practice. Conservative estimates put that around 5000 girls are trafficked from Nepal every year whereas latest data released by International Labor Organization shows more than 12,000 girls are similarly trafficked. Even as the number of trafficked girls has not subsided, the number of complaints filed before the police by the victims has not increased. Latest report of the Attorney General showed that only 54 such cases were registered at the police in 2002/03. Likewise, the success rate of the cases filed, too, is very uninspiring at around 33 percent. However, as shown by the impressive figures of Maiti Nepal, which has already filed 200 cases till now and has almost cent percent success rate, it is clear that given strong commitment and sustained effort, the scene could change for the better

By SANJAYA DHAKAL

Tirtha Rai (name changed) a mid-20s girl hailing from the district of Sindhupalchowk, which is just east to the Kathmandu valley had been sold to the brothel in India by her own aunt. In 1996 she fled from the brothel in Mumbai and returned to Nepal. She filed a case against her aunt at a police office in Kathmandu. A case was filed in district court but after two years, the aunt went scot-free after the court stated that it could not punish her due to lack of evidence.

Similar is the story of Bhawana Sharma (name changed) a teen-aged girl hailing from Nuwakot – a district west of Kathmandu. She was lured by a person who promised to marry her. She was taken to Puna and sold at a brothel there. After she returned home three years later, she filed a case in the court. But the case just dragged on and the culprit could not be punished because she could not produce concrete evidence that the person accused indeed sold her.

Stories like that of Tirtha and Bhawana are innumerable. While on the one hand the number of victims approaching for justice is very low, even those who do come cannot get it because of various factors.

A.G's office : Low number of complaints

Low Number of Complaints

Even though the incidents of trafficking of women and children for the purpose of exploiting them sexually have not decreased, less and less number of victims are turning up at the courts to seek justice.

The recently published annual report of the Office of the Attorney General of the Kingdom of Nepal has shown that the number of women victims seeking justice has been going down in the last couple of years. The conservative estimates, published by the Ministry of Women, Children and Social Welfare, state that around 5000 to 7000 Nepalese women are trafficked every year to various brothels in India. The recent report by the International Labor Organization (ILO) stated that 12,000 women and children are trafficked every year from Nepal. This figure could even be as high as around 30,000, according to some NGOs.

But the Attorney General’s report states that only 54 cases were filed by victims of trafficking in the year 2002/2003.

The report states that while in the year 1997/1998 (mid-July 1997 till mid-July 1998) 130 women had filed cases against traffickers, it decreased to 110 in 1998/1999; 125 in the year 1999/2000; 92 in 2000/2001; and 40 in 2001/2002.

“Compared to the actual trafficking incidents, the numbers of cases filed are abysmally low. Every year around 200 to 300 women return from the brothels – some just flee, some are rescued and while some are even kicked out by the brothel-owners once they are infected with incurable diseases like HIV/AIDS. Out of them a very tiny fraction actually goes to file case against the culprits,” said Biswo Raj Khadka, general secretary of Maiti Nepal – a leading NGO working against girl trafficking.

Why So Low?

Village people : In need of greater awarness

Social stigma, lengthy judicial process, re-victimization and lack of easy access to law have all combined to keep the women away from the doors of justice even as the country has framed a strict legal system with provision to send guilty ones for life imprisonment in this Himalayan Kingdom.

Typically courts take more than two years to complete a case of trafficking. Take the example of Mala Tamang (name changed) a mid-20s girl from Lalitpur district. She was lured by one Roshan Khulal who promised to marry her. But she was almost taken to India. She fled and ran away as she was about to be taken to India from Sunauli. She returned and filed a case against the perpetrator in 2001. However, the accused person simply became absent during the court proceedings and she is yet to get justice.

“These stories repeat often. In cases of trafficking, there are hardly evidences to nail the culprit. Most of the time, the relatives themselves hand over the girls to agents, who later take them for selling purpose at Indian brothels,” said Lalit Basnet, a lawyer. “Besides, since our law against trafficking is very strict, the court wishes for concrete evidence before it hands over the sentence.”

The cases of trafficking come under the purview of Human Trafficking (Control) Act 1987. The persons found guilty of trafficking a girl can be sentenced up to life imprisonment – the maximum penalty possible in this country which does not practice capital punishment. Even the ‘attempt to traffic a person’ carries the penalty of 10 years in jail.

The process of filing a complaint generally involves a victim first approaching police who then prepare a case to be filed at the district court. For a brief period in the recent past, the cases of trafficking were to be seen by the Special Court. But because the Special Court was based in Kathmandu, it became impractical for victims to come all the way to Kathmandu to file their cases. For that reason, the district courts have once again been allowed to hear the cases of human trafficking.

According to Sapana Pradhan-Malla, president of Forum for Women, Law and Development (FWLD) – an NGO active in pursuing the causes of women – in the last 27 years, the maximum number of cases filed by victim women was mere 150 in one year. “Even in 1996, when 278 girls were brought back by rescue team, adequate cases were not filed,” she said, at a program held about the Human Trafficking in the capital two weeks ago. This showed that even those rescued did not want to pursue for legal remedies.

“Since the legal process is lengthy (it takes a minimum of 2 years to deliver a verdict) and since the victims have to testify before the court several times, the girls tend to just stop pursuing the cases. Many times the accused persons are their relatives and sometimes even criminals who exert all kinds of pressures outside the court leading to the dropping of charges,” said Basnet.

Shelter home at Maiti Nepal : Center of hope

And even among the cases filed, very few result in favorable verdict for women. “In 40 percent of cases, the police even fail to catch the identified culprit,” said Sapana Pradhan-Malla. She also cites another case study of a Nepali girl named Tulsa who had filed a case against trafficker at the Mumbai High Court. “After much deliberation, the court recently stated that it could not punish the accused person because Tulsa could not establish enough evidence to prove the crime.”

Adds Pradipna Raj Panta, national program manager, Joint Initiative Against Trafficking (JIT) – a network of UN agencies, concerned ministries and civil society formed in 2000 to coordinate efforts against girl trafficking -, “Only in the 33 percent of cases filed did the guilty ones were delivered severe penalty.” The report of the Attorney General also states that the success rate of such cases at the Supreme Court is less than 33 percent – and in 61 percent of the successful cases the guilty ones have been sentenced to prison for more than 10 years.

The government officials also concede that the number of cases filed have been very low. “Our Constitution prohibits the violation of women’s rights and we have a number of legal instruments against it, but still the problem persists. This shows that only legal provisions do not help,” said Shashi Kanta Mainali, secretary at the Ministry. “Because of social stigma, threat from criminals, delay in our justice system, costly justice process, among others, are reasons for low number of cases filed against the culprits. To overcome this situation, the government expects cooperation from the civil society as well,” he said.

“The government is working very hard to overcome this problem of trafficking, which is nothing but a national shame to all of us. We have prepared the Plan of Action and updated it last year to deal with this problem. The government has also designated 26 districts – out of 75 districts in total – as sensitive areas in terms of trafficking. We are doing our utmost,” said Shyam Sundar Sharma, a joint secretary at the Ministry of Women, Children and Social Welfare.

Success Story

Even as there are less incidents of registering complaints by individual victims, the Maiti Nepal – the leading NGO engaged in a crusade against the trafficking – has been making remarkable progress. “We have already filed over 200 cases in the last many years and in almost cent percent of those cases, we have been able to provide justice to victims,” said Anuradha Koirala, president of Maiti Nepal.

The Maiti Nepal, which also has a separate shelter home, provides all kinds of facilities to the victims who come for its help. There is a separate legal unit within the organization. At present, there are five lawyers at the organization. “We deeply study the case and do our homework before filing it at the court,” said Uma Tamang, the chief of the legal section at Maiti Nepal.

One reason behind the success of Maiti Nepal is the ‘total take care’ that it provides. “The process is definitely very slow and there are possibilities for various elements to exert all kinds of pressures against the victims. The victims are made to withdraw their cases in many incidents. But at Maiti Nepal we provide shelter and all other facilities to the victims who, therefore, will not be bound by any kind of pressure,” said Tamang.

Just in the recent years, Maiti Nepal has been able to nail Mamata Maharjan, a girl who sold her own friend; Bisne Pariyar and Bhim Bahadur Basnet (Rudre), among others. While Maharjan was sentenced to 4 years imprisonment by the court, Pariyar was sent to jail for 15 years. Basnet, a serial trafficker, was sent to 15 years of imprisonment each for six different counts of trafficking.

Tamang says that the provisions of ‘camera-court’ or closed court proceedings could improve the track record. “Such provision will make it more convenient for victims to proceed with their case,” she said.

Tamang conceded that apart from the impressive track record of Maiti Nepal, the overall situation of the victims getting justice is not good. “The process is long and there are all kinds of difficulties, which must be resolved so that victims will feel that they have been given justice in the true sense,” she said.

Estimates say that there are at least 200,000 Nepalese women and girls working at brothels in different Indian cities like Mumbai, Puna, Delhi, Kolkata etc. Every year 10 million women and children are similarly trafficked across the world. The Human Trafficking is said to be the third most lucrative and organized crime after the drugs and illegal weapons with the annual turnover of US$ 8 billion.