Trafficking In Nepal : Policy Analysis
An Assessment of Laws and Policies for the Prevention and Control of Trafficking

By Dr. Jyoti Sanghera and Ms. Ratna Kapur (Advocate)

This study assesses Nepal’s policies and laws that address the trafficking of women and children in terms of effectiveness, human rights, international obligation, and the relationship between trafficking and HIV. Through both formal and informal methods utilizing primary and secondary data, the study reviewed policies and laws related to trafficking, HIV/AIDS, labor and foreign employment, foreign travel and migration, gender, and children’s issues. The study evaluates the strengths and weakness of the Nepal’s policies and laws and offers recommendations for improving them.

Assessment of Laws and Policies.

The following laws and policies are assessed independently and as they relate to Nepal’s international obligations and HIV/AIDS policy:

The National Policy, Action Plan, and Institutional Mechanism to Combat Against Trafficking in Women and Children for Commercial Sexual Exploitation (2001) : Ministry of Women, Children, and Social Welfare (MOWCSW). This document outlines the government’s National Policy on Trafficking, the Action Plan proposed to implement it, and the specific Institutional Mechanisms that are to be set up to sustain the Action Plan.

2. Domestic Laws

a) Nepal constitution (Specific provisions dealing with trafficking)

b) Traffic in Human (Control) Act, 1986 (Currently governs the issue of trafficking in Nepal)

c) The Foreign Employment Act, 1985

3. Law Reform Proposals to amend the Traffic in Human (Control) Act. 1986:

a) Center for Legal Research and Resource Development (CeLLRd).

b) A Bill Made to Provide for the Elimination of the Offences of Traffic in Persons Prepared by the Nepal Police and submitted for consideration on August 9, 1999.

c) The Traffic in Human Beings (Offences and Penalties) Act, 1999. This MOWCSW law reform proposal in based on the other two proposals. The MOWCSW draft will be put before Parliament to be enacted into law.

Major Conclusions and Recommendations

1. Trafficking and Prostitution

Current laws and policies in Nepal focus on the portion of trafficking that is for the purpose of prostitution. By emphasizing the endpoint, the violence and abuse of human right that occur during the process of trafficking (and for any purpose other than prostitution) are not addressed. The MOWCSW reform bill would effectively criminalize prostitution for the first time in Nepal, whether or not it results from trafficking. This would result in denial of redress to victims of trafficking for the purpose of prostitution because, in such cases, the "victim" risks impugning herself of committing a crime in the course of filing a complaint against a trafficker. This undermines the intent of the course of filing a complaint against a trafficker. This undermines the intent of the bill, which is to prosecute traffickers and protect victims of trafficking.

Recommendation : No specific laws should be enacted to criminalize prostitution. Protecting and ensuring the legal and constitutional rights of socially and sexually stigmatized communities is an essential step in countering their social stigmatization and marginalization and creating viable ways to exit sex work. Criminalization of prostitution and withholding protection to stigmatize communities from harassment by law enforcers and exploiters in the sex industry will only further dis-empower these women, their families, and communities.

2. Migration and trafficking

Several recent laws and orders in Nepal specifically limit the international migration of women. Controlling migration and hindering women's right to migration will not curb or prevent trafficking and will simply drive it underground.

Recommendation : Policy and legislative interventions should make clear distinctions between migration and trafficking. The open-door agreement between Nepal and India should not be altered. Stricter border controls, such as instituting a passport system or more stringent border surveillance will not stop trafficking or migration.

3. Women's Rights

Nepal's constitution ensures gender equality under the law. The National Policy on Combating Trafficking (MOWCSW 2000) includes commitments by the government to remove laws that discriminate against women, take all necessary measures to protect the rights of women, and take steps to alleviate poverty and provide employment opportunities to women. In addition, the National Plan of Action proposes training programs for behavior and attitude change on gender issues and trafficking. However, several laws still discriminate against women, especially in the areas of property, inheritance, and migration. A legal environment that limits options and redress for women in difficult marital and financial situation may force them to migrate, legally or illegally, and increase their vulnerability to trafficking.

Recommendation : His Majesty's Government of Nepal (HMG/N) should fulfill its commitment to repeal all laws that discriminate against women.

4. Consent

Current and proposed policies and legislation do not address the issue of consent. Many national laws and policies include the phrase "With or without consent" in their texts. While this may have legitimate bearing in the case of children, consent must be included as a rights issue in the case of adults. An adult woman's right to make her own decisions must be recognized, even if this includes, for example, a decision to migrate for work in the sex trade. Disregarding the will, wishes and choice of an adult and confining her to forcible protection or "Rescue" is a violation of human rights.

Recommendation : Policies and interventions should clearly distinguish between the issues of trafficking and its control for adults and children..

5. Other Human Rights Issues

There are several human rights concerns raised by the MOWCSW reform bill. The bill shifts the burden of proof onto the defendant for certain offenses In addition, the MOWCSW bill grants the State power to search without a warrant, denies housing for all sex workers and former sex workers, and blocks free speech through the prohibition of the production and distribution of "Vulgar" materials without defining the term.

The MOWCSW bill takes a moralistic approach to trafficking and uses this platform to address issues of rape, child sexual abuse, pornography, kidnapping, trafficking, and prostitution, by defining them all as "trafficking." Each of these issues raises distinct and separate concerns and requires clear and precise definitions and rules of procedure and practice.

Recommendation : consistent with its international commitments, HMG/N should ensure that anti –trafficking interventions do not subject trafficked persons to discriminatory treatment in law or practice. Current laws and policies under discussion do not actively follow the principle of non discrimination and include punitive measures for women who work in the sex industry either consensually or non-consensually. Rather than one catch-all bill, separate pieces of legislation should be drafted for each non-trafficking issue, as is the case in many other countries.

6. Focus on Rescue and rehabilitation

Most of the policies and bills emphasize rescue and rehabilitation operations and income generation schemes, although both approaches have been criticized for their ineffectiveness and paternalistic approach to trafficked persons and those vulnerable to trafficking.

Recommendation : There is a need to move from a paradigm of rescue, repatriation, and rehabilitation to an approach that protects and promotes trafficking victims' human rights and creates sustainable incomes. State benefits including legal rights that are available to other families should be made available to mothers and their children, regardless of their work. The State should provide soft loans, infrastructure support, and educational scholarships to women, including women who have been or are engaged in prostitution.

7. Interface with HIV/AIDS policy

The National Policy on AIDS and STD Control and the Strategic Plan for HIV and AIDS in Nepal are based on human rights framework and address the factors that render persons more vulnerable to HIV/AIDS. Although the Strategic Plan makes no specific recommendations for legal reform, it does specify that legal reform should be based on non-discrimination, in order to produce an "enabling" environment. Many of the features of the anti-trafficking laws and policies are in direct conflict with the HIV/AIDS policy in Nepal. This is most striking in the areas of migration and prostitution. The Strategic Plan for HIV/AIDS calls for interventions that effectively address the spread of the epidemic are consistent with the right to freedom of movement and the right to seek a better standard of living. This is in direct contrast to anti-trafficking laws and policies that call for restricting women's migration and limiting and/or criminalizing prostitutions.

Recommendation : Any legal of policy proposals on anti-trafficking formulated by the government, or recommended by non governmental stakeholders or donors, should embrace a human rights approach like the approach used in the National Strategic Plan on HIV/AIDS in Nepal.

8. Other Recommendations

Rigorous methodologies with qualitative and quantitative indicators, including impact-assessment indicators, should be developed to address the lack of research and data on trafficking in Nepal.

(Text courtesy The Asia Foundation, Kathmandu).

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