Human Trafficking Laws in Nepal

What is Human Trafficking ?

Human Trafficking is a crime against humanity. It involves an act of recruiting, transporting, transferring, harboring or receiving a person through the use of force, coercion or other means, to exploit them. Every year, thousands of men, women and children fall into the hands of traffickers, in their own countries and abroad. Every country in the world is affected by trafficking, whether as a country of origin, transit or destination for victims.

Human traffickers prey on people who are poor, isolated and weak. Issues such as disempowerment, social exclusion and economic vulnerability are the result of policies and practices that marginalise entire groups of people and make them particularly vulnerable to being trafficked. Natural disasters, conflict and political turmoil weaken already tenuous social protection measures. Individuals are vulnerable to being trafficked not only because of conditions in their countries of origin, however. The allure of opportunity, the relentless demand for inexpensive goods and services and the expectation of reliable income drive people into potentially dangerous situations where they are at risk of being exploited. The Vienna Forum will examine existing definitions of and practices related to the prevention of trafficking and, by focusing on decreasing vulnerability, will broaden the strategic impact of existing prevention efforts.

Human trafficking is the recruitment and transportation of human beings using threat, coercion, payment or deception for the purposes of exploitation. Poverty coupled with gender inequality creates fertile ground for the growth in the crime of trafficking, leaving women and girls the most vulnerable. After having accepted proposals for employment, marriage, a better life, they are taken away to be sold and exploited domestically and in foreign countries. When victims return to their homes, they are mentally and physically unhealthy. In this vulnerable state, they are often abandoned by their families and have no source of income.

Is Human Trafficking and Human Smuggling same ?

Human trafficking differs from people smuggling. In the latter, people voluntarily request or hire an individual, known as a smuggler, to covertly transport them from one location to another. This generally involves transportation from one country to another, where legal entry would be denied upon arrival at the international border. There may be no deception involved in the (illegal) agreement. After entry into the country and arrival at their ultimate destination, the smuggled person is usually free to find their own way.

While smuggling requires travel, trafficking does not. Much of the confusion rests with the term itself. The word "trafficking" includes the word "traffic," which we often equate with transportation or travel. However, while the words look and sound alike, they do not hold the same meaning. Human trafficking does not require the physical movement of a person (but must entail the exploitation of the person for labor or commercial sex). Additionally, victims of human trafficking are not permitted to leave upon arrival at their destination. They are held against their will through acts of coercion and forced to work or provide services to the trafficker or others. The work or services may include anything from bonded or forced labor to commercialized sexual exploitation. The arrangement may be structured as a work contract, but with no or low payment or on highly exploitative terms. Sometimes the arrangement is structured as debt bondage, with the victim not being permitted or able to pay off the debt.

Causes and Purposes of Trafficking

Bonded labor, or debt bondage, is probably the least known form of labor trafficking today, and yet it is the most widely used method of enslaving people. Victims become bonded laborers when their labor is demanded as a means of repayment for a loan or service in which its terms and conditions have not been defined or in which the value of the victims’ services as reasonably assessed is not applied toward the liquidation of the debt. The value of their work is greater than the original sum of money "borrowed."

Forced labor is a situation in which victims are forced to work against their own will, under the threat of violence or some other form of punishment, their freedom is restricted and a degree of ownership is exerted. Men are at risk of being trafficked for unskilled work, which globally generates $31bn according to the International Labor Organization. Forms of forced labor can include domestic servitude; agricultural labor; sweatshop factory labor; janitorial, food service and other service industry labor; and begging.

Sex trafficking victims are generally found in dire circumstances and easily targeted by traffickers. Individuals, circumstances, and situations vulnerable to traffickers include homeless individuals, runaway teens, displaced homemakers, refugees, and drug addicts. While it may seem like trafficked people are the most vulnerable and powerless minorities in a region, victims are consistently exploited from any ethnic and social background.

Traffickers, also known as pimps or madams, exploit vulnerabilities and lack of opportunities, while offering promises of marriage, employment, education, and/or an overall better life. However, in the end, traffickers force the victims to become prostitutes or work in the sex industry. Various works in the sex industry include prostitution, dancing in strip clubs, performing in pornographic films and pornography, and other forms of involuntary servitude.

Child labour is a form of work that is likely to be hazardous to the health and/or physical, mental, spiritual, moral or social development of children and can interfere with their education. The International Labor Organization estimates worldwide that there are 246 million exploited children aged between 5 and 17 involved in debt bondage, forced recruitment for armed conflict, prostitution, pornography, the illegal drug trade, the illegal arms trade and other illicit activities around the world.

Trafficking in organs

Trafficking in human beings to use their organs, in particular kidneys is a rapidly growing field of criminal activity. In many countries waiting lists for transplants are very long, and criminals have seized this opportunity to exploit the desperation of patients and potential donors. Victims are often misinformed about the medical aspects of the organ removal and deceived about the sums they will receive. Their health, even life, is at risk as operations may be carried out in clandestine conditions with no medical follow-up.

Legal Provision

The following initiatives have been undertaken by the Government of Nepal at the legislative and policy levels toward anti trafficking intervention programmes:

Under the Human Trafficking and Transportation (Control) Act, 2064,

1. Any person who commits an offence as prescribed under Section 3 shall be punished as follows:
   1. Twenty years imprisonment and a fine of Two Hundred Thousand Rupees for selling or buying a human being,
   2. Ten years to Five years imprisonment and a fine of Fifty Thousand Rupees to One Hundred Thousand Rupees for forcing into prostitution, with or without financial benefit,
   3. 10 years imprisonment and a fine of Rs Two Hundred Thousand to Five Hundred Thousand Rupees for extracting human organ except otherwise determined by law,
   4. One month to three months imprisonment and a fine of Two Thousand Rupees to Five Thousand Rupees for a person engaged in prostitution.
   5. For a person who is involved in transportation of human being for the purpose of buying, selling and engaging someone in prostitution
      1. Ten years to Fifteen years imprisonment and a fine of Fifty Thousand Rupees to One Hundred Thousand Rupees for taking a person out of the country. Fifteen years to Twenty years imprisonment and a fine of One Hundred Thousand Rupees to Two Hundred Thousand Rupees for taking a child out of the country.
      2. Ten years of prison and a fine of Fifty Thousand Rupees to One Hundred Thousand Rupees for taking a person from one place to another place within the country. Ten years to Twelve years imprisonment and a fine of One Hundred Thousand Rupees for taking a child from one place to another place within the country.
   6. One years to two years of imprisonment for taking a person from one place to another place within the country, and two years to five years of prison for taking out of the country for the purpose of exploitation under Clause (b) of Sub-section (2) of Section 4.
   7. Except otherwise written in clause (e) and (f), seven years to ten years of prison for a person committing an offence under clause (b) of Subsection (2) of Section 4.
   8. The person engaged in provocation, conspiracy and attempt of an offence of human trafficking or transportation or an abettor of that offence shall get half out of full punishment envisioned for that offence.
2. Notwithstanding anything written in Sub-section (1), the punishment in the following matters shall be as follows:
   1. If same person is involved in buying or selling and forcing into prostitution, with or without any benefit; he/she shall be liable for punishment under both offences,
   2. If same person is involved in buying or selling or forcing into prostitution, with or without any benefit, and in an offence under Clause (b) of Sub-section (2) of Section 4, he/she shall be liable for punishment under both offences,
   3. Notwithstanding anything mentioned in Clause (b), if same person is involved in an offence under Clause (b) of Sub-Section (2) of Section 4 and in transporting a human being from one place to another place within Nepal or outside the country for the purpose of buying, selling or forcing into prostitution, with or without any benefits; he/she shall be liable for separate punishment for each offence.
3. If an offence under Section 3 is committed by person holding a public post; in addition to the regular punishment for that offence, he/she shall be liable for Twenty five 25 percentage additional punishments.
4. If anyone commits an offence under Section 3 with a person under protection or guardianship or if the victim is relative of the offender as incorporated in the Chapter of Incest in civil code , he/she is shall be liable for ten percentage additional punishment besides regular punishment under this Act.
5. If anyone commits an offence under Section 3 repeatedly, for every offence he/she shall be liable for it additional one-fourth punishment in addition to the regular punishment.
6. If, in the course of proceeding of the case, a person involved in reporting the offence under Section 5 of this Act gives contrary statement to that of the statement giver earlier or if he/she does not appear before the court on its notice or does not assist to the court, shall be liable for three months to one year of imprisonment.

Human trafficking today is a global phenomenon, affecting men, women and children in over 130 countries of the world. Trafficking is a crime against individuals. As such, the consequences are most directly felt by trafficked persons. As well documented, trafficking activities contravene fundamental human rights, denying people basic and broadly accepted individual freedoms. Trafficking also has broad economic, social and cultural consequences. As a criminal act, trafficking violates the rule of law, threatening national jurisdictions and international law. Further, trafficking in persons redirects the benefits of migration from migrants, their families, community and government or other potential legitimate employers to the traffickers and their associates.