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Preliminary findings on the visit to kuwait by Maria Grazia Giammarinaro, Special Rapporteur on trafficking in persons, especially women and children - 4-8 September 2016

Kuwait City (14 September 2016) - Following an invitation by the Government of the State of Kuwait, I conducted an official visit to the country from 4 to 8 September 2016 to assess the situation of trafficking in persons, especially women and children and identify the progress made and remaining challenges in combating this phenomenon. 

I would like to express my sincere gratitude to the Government for this invitation, as well as the full cooperation extended to me prior and during my visit which enabled me to obtain first-hand information regarding the current legislative, policy and institutional framework and programmes in place to address human trafficking. The fact that the Government welcomed my visit demonstrates the country’s commitment to combatting trafficking in persons.

In the past 5 days, I exchanged with a number of government officials from the Ministry of Justice; the Ministry of Social Affairs and Labor and the Public Authority for Manpower. I also discussed with members of the Anti-trafficking unit and the Department of Domestic Labour of the Ministry of Interior. I interacted with members of the Judiciary (the Supreme Court, the plenary court, the public prosecutor’s office) and the Kuwait Institute for Judicial and Legal studies. I also visited the women Shelter for domestic workers under the Ministry of Social Affairs and Labor as well as the Women's prison, the private nurseries for children of women prisoners and the immigration detention center for women. I also exchanged with Civil Society Organisations working on the issue of human trafficking and related matters. Finally, I met with representatives of the United Nations Agencies and Programmes, and members of the diplomatic community. At the end of my visit, I delivered a closing statement at the conclusion of the joint Ministry of the Interior and IOM training program entitled “Criminal investigation into cases of trafficking in persons using information technology”.

Victims of trafficking in Kuwait are women and men who are, for the most subjected to trafficking for forced labour and labour exploitation including domestic servitude.  Men and women migrate from South and Southeast Asia, the Middle East, and increasingly throughout Africa mainly for employment in the domestic work, construction and hospitality sectors. Trafficking for sexual exploitation, particularly forced prostitution also exists. Migrants in irregular situations, including some refugees, asylum seekers and stateless persons work informally in the Kuwaiti economy, which puts them at risk of trafficking for both labour and sexual exploitation. Moreover, some domestic workers flee their employers as a result of deception about the type and conditions of employment by recruitment agencies in countries of origin, and exploitation by their employers in Kuwait. Some domestic workers have been forced into prostitution.

The Kafala system, bounding every worker to a particular employer as a sponsor, creates a situation of vulnerability which favours abusive and exploitative work relationships. It happens that domestic workers are deprived of their documents and of their mobile phones, are prevented from communicating with their families and from establishing social relationships outside the family, are obliged to work long working hours, and are eventually mistreated and beaten. In this context, hundreds of them flee their employers every year.

The government of Kuwait has become active and determined to counteract domestic servitude, which would otherwise be completely hidden, as it happens in many countries of the world. Especially the establishment of two shelters, that have to date received some 7,000 domestic workers fleeing their employers, shows a real commitment in this field and is a benchmark in the region and beyond. This accomplishment is even more significant given that exploitation of domestic workers is prevalent in the region.

I encourage the government and institutions of Kuwait to continue in this direction, and redouble efforts to better prevent trafficking and protect its victims. It is necessary to address existing gaps, especially regarding real alternatives to deportation when people are not willing to return. This implies dropping immediately absconding charges against them and ensure indemnisation for unpaid wages as well as the possibility to change employer and find a gainful employment in Kuwait.

 In order to be successful in the struggle against trafficking, the government of Kuwait should also consider to deal with the general context of migration and labour regulations that produce social vulnerabilities. This is the reason why the Kafala system should be abolished and replaced by a different regulation, allowing migrant workers to enjoy substantial freedom in the labour market. Moreover, in line with the recent law acknowledging the rights of domestic workers, the area of domestic work should be placed under the competence of the Ministry of Labour and the Authority for Manpower, which implies full recognition of equal rights if domestic workers.

Positive developments

I would like to commend Kuwait’s resolve to fight trafficking in persons, as reflected by the country’s ratification of the Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children (Palermo protocol) and other international human rights instruments including: the Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children (Palermo protocol) and other international human rights instruments including: the Slavery Convention of 1929, the Convention on the Elimination of Discrimination Against Women and the Convention on the Rights of the Child, the ILO Forced Labour Convention, 1930 (No. 29), ILO Abolition of Forced Labour, 1957 (No.105)  and the ILO Worst Forms of Child Labour, 1999 (No.182)    Furthermore, Kuwait’s recent legal framework in the area of labour is commendable. National laws, decrees and policies regulate the private sector, complaint mechanism related to labour, child labour and domestic work including a model contract for domestic workers and the establishment of a government company for the recruitment and employment of domestic workers. In terms of trafficking in persons, the Anti-Trafficking in Persons and anti-smuggling Law 91/2013 aims to eradicate this phenomenon in Kuwait. The current discussion of the possibility of imminently establishing a National Anti-Trafficking Strategy is encouraging.

In terms of the institutional framework, I welcome the establishment of the Anti-Trafficking Unit within the Ministry of Interior which plays a key role in addressing human trafficking through its dedicated staff and its trilingual hotline set up to receive information on trafficking in persons. A national committee under the Ministry of Justice is currently finalising the national anti-trafficking strategy. Until recently, a case conference committee established in the Government Shelter for Foreign Workers and composed of the Ministry of Interior, Ministry of Social Affairs and Labour, the Public Authority for Manpower, the Ministry of health and the Ministry of met weekly to coordinate anti-trafficking action related to the shelter. The judicial training institute also provide trainings on trafficking for law enforcement and judiciary officials in cooperation with the UN and IOM.

 I also visited the newly opened women Shelter for domestic workers  run by the Ministry of Social Affairs and labor. I commend the high standard/quality of this government funded shelter which accommodates up to 500 female domestic workers follow up their case for possible voluntary repatriation or reemployment by another employer. I understand that psychological, medical, legal, language and other support services are also foreseen to be provided. The Public Authority of Manpower is also actively engaged in combatting trafficking through its regularly revised labour laws and regulations, and Labour inspections of businesses. The establishment of various units such as those dedicated to recruitment of manpower and labour inspection also indicate the Authority’s endeavour to address issues related to trafficking in cooperation with international organisations - a case in point is the Joint Project with ILO, IOM and UNDP which aims to improve compliance with labor standards and working conditions.
I also learnt of the steps taken by the Government in terms of fostering bilateral, regional and international cooperation to combat trafficking in persons.

Critical areas of concerns

Notwithstanding these positive steps, I have noted a number of challenges that must be addressed by the Government of Kuwait if it is to succeed to effectively combat trafficking in persons and protect the human rights of trafficked persons.

While the majority of identified cases of trafficking are limited to trafficking for labour exploitation mainly related to domestic work, the exploitative working conditions of some migrant workers in other sectors can at times amount to trafficking. The possibility of sexual exploitation also exists and can only be identified if there is an active search for them.

Given the influx of migrants arriving in Kuwait with the perspective of work and the government’s immigration policy based on repatriation of undocumented migrants, I am concerned of the possibility that trafficked persons may, either not be identified or be misidentified as irregular migrants, detained and subsequently deported without provision of adequate opportunity for social reintegration and recovery. The extremely limited possibility for exploited irregular migrants to access the labour market, also presents an increased risk of trafficking for labour and sexual exploitation.

Some labour recruiting companies in countries of origin, but also in Kuwait have also been complicit in trafficking with their use of deceptive recruiting techniques to bring in migrant workers on the basis of unenforceable contracts and non-existent positions, while promising employers to recruit workers who are well-trained but turn out to be unskilled. Moreover, migrant workers are coerced into paying labour broker fees in Kuwait which, according to Kuwaiti law, should be paid by the employer—a practice making workers highly vulnerable to trafficking and forced labour.

Moreover, while acknowledging the government’s on-going efforts to further address irregularities related to employment of domestic workers, I wish to call for further work to curb practices such as withholding of passports, payment of inadequate wages, long working hours and confinement to the workplace which sometimes amount to trafficking for domestic servitude. My fear is heightened also by the fact that the capacity gap in terms of ability for quick and accurate identification of trafficking cases by front line officers based on standard tools and protocols. 

Indeed to date, the rate of prosecution of cases for all types of trafficking remains very low, while convictions rate for trafficking is even lower. Moreover, there is concern about the lengthy judicial process, the lack of speedy judicial trials for trafficking cases and the lack of possibility to file cases of trafficking in courts when victims already have an absconding charge against them. This contributes to impunity of traffickers and perpetuates the abuses faced by victims who abandon the case and leave the country in order to earn a living somewhere else.

In terms of protection for victims of trafficking, I have noted that assistance is provided to women in the newly established government run shelter for domestic workers. However, assisted victims have limited freedom of movement on their own outside the shelter because of the real risk of being detained and deported based on the absconding charges filed by employers that renders them irregular migrants. Moreover, male potential victims of trafficking among domestic workers and in other sectors such as construction are not offered protection due to absence of a similar shelter. The protection of population of concern such as refugees, asylum seekers, and stateless persons especially among the so called Bidoons, who are vulnerable to human trafficking, is further hindered by the absence of adequate legal and policy frameworks in Kuwait.

While acknowledging the current efforts for raising awareness on trafficking in persons, prevention remains at an infant stage. Regularly revised laws and regulation related to the licensing of recruitment/ employment agencies has not prevented abuses such as domestic servitude and labour exploitation. The general population and particularly employers of domestic workers also remain largely unaware of the issue of trafficking and government’s actions to combat and prevent it.

The capacity of government authorities, law enforcement agencies, judicial authorities and labour inspectors to identify cases of trafficking in persons based on the 2013 anti-trafficking and smuggling law limits the prosecution and punishment of all forms and manifestations of trafficking in persons.

Coordination within and across concerned authorities, service providers and CSOs is at present incoherent as a result of lack of a permanent Inter-Ministerial committee/ structure and a National Anti –Trafficking Plan of Action to combat trafficking.

In view of the above observations, I would like to offer the following preliminary recommendations to Kuwait.

NATIONAL FRAMEWORK

• Ensure the implementation of the Anti-Trafficking in Persons and anti-smuggling law 91 of 2013 as well as the labour laws and actively identify and address all forms of trafficking of persons, including those that involve labour and sexual exploitation and for the purpose of organ removal.
• Establish a permanent multi-sectoral committee with members drawn from relevant ministries and government departments, to coordinate the implementation of the Anti-Trafficking Act and formulates policies and programmes to prevent and combat trafficking in persons and smuggling of migrants.  Moreover, reinstate the working level committee addressing and handling trafficking situations in the shelters, in order to provide people with viable solutions on a case by case basis;
• Establish a National Human Rights Insistution with an independent statute, which includes trafficking as a human rights issue.
• Fast track the development and establishment of the National anti-trafficking strategy with clearly identified objectives and adequately financed activities, delineated responsibilities, and clear indicators to measure progress and impact on anti-trafficking initiatives.
• Abolish the sponsorship system (Kafala).

Fast track the intention to establish a government owned recruitment agency to prevent trafficking of non- Kuwaiti domestic workers.

• Centralise all issues related to labour, including migrant labour under one government institution. In this regard, ensure that domestic work is shifted from the Department of Domestic labour within the Ministry of Interior to the Public Authority for Manpower.
• Undertake baseline research in collaboration with civil society organisations to collect credible data on the phenomenon of human trafficking, its causes and consequences, including on trafficking trends, links to sexual exploitation, trafficking involving refugees/asylum seekers in and outside camps as well as internal trafficking involving marginalized populations.

SUPPORT FOR TRAFFICKED PERSONS

• Protect and assist all victims of trafficking, including those victims of labour trafficking, domestic servitude, refugees and asylum seekers and children, with full respect for their human rights, and include a human rights based approach in the investigation and prosecution of cases of trafficking that requires the rights of all victims to be placed at the core of any response. Ensure that victims of trafficking are not criminalised or deported as a result of the crimes or administrative violations they have committed in relation with their exploitation, such as violations of immigration regulations.
• Provide victims of trafficking unconditional and comprehensive assistance such as social, psychological, medical, legal support, as well as translation assistance and interpretative services.
• Ensure that victims in shelters have freedom of movement outside the facilities and the right to stay and work while awaiting the outcome of their legal proceedings and beyond. Fast track the establishment of the shelter for male domestic workers.
• Develop further cooperation with CSOs with relevant capacity to, provide supports and assistance to victims of trafficking
• Adequately train staff on the use of the protocols/guidelines for the identification of trafficking and exploitation, defining red flags and indicators to look for while screening vulnerable persons including exploited migrant workers, domestic workers who are considered as irregular migrants.
• Establish dedicated procedures to identify previous situations of exploitation eventually amounting to trafficking among migrants in prisons and in administrative detention waiting for deportation, in cooperation with international organizations and CSOs.
• Establish appropriate tools and indicators to enable labour inspectors to identify victims of trafficking during labour checks accompanied by immediate protection measures for victims found to be in enforced labour.
• Ensure that the hotline/helpline of the Anti-Trafficking Unit within the Ministry of Interior is serviced by multi-lingual staff who have received specialized training on trafficking in persons.
• Remove absconding charges against people who have been sheltered as a consequence of trafficking and exploitation and establish an exemption from employers approval for job transfer.
• Providing victims of trafficking who do not wish to return to their countries of origin due to fear of retribution, hardship or re-trafficking, alternatives to remain and work legally in Kuwait, including through granting  special work permits and ability to transfer from Domestic Workers Visa 20 to Private Sector Visa 18.
• Establish a victim fund that will provide a comprehensive compensation scheme for victims of trafficking.
• Maintain close cooperation between relevant government ministers, with Civil society organisations and with relevant United Nations Agencies and programmes in the country as well as diplomatic missions for the safe return of trafficked victims in their country having due regard to the need, if any, of international protection of the victims;

PREVENTION

• Take urgent action using a multi-media approach to create public awareness about all forms of trafficking in persons, including for domestic servitude, forced labour, sexual exploitation, and the removal of organs, in order to promote understanding of what constitutes trafficking among the general population, migrant, refugee and asylum seekers.
• Empower CSOs including through increased interaction to conduct sensitization on trafficking-related risks and handle complaints related to trafficking.
• Develop, strengthen and increase options for safe migration and legal employment channels, acknowledging that the current approach to migration management, especially in relation to the recruitment of foreign or migrant labour via unscrupulous employment agencies may at times, favour the activities of traffickers.
• Fast track the establishment of the government employment agency for domestic workers and implement stringent regulations regarding employment agencies, regularly check the activities of those already licensed, revoke their license and prosecute them in cases of illegal action involving trafficking in persons.
• Ensure that migrant workers enjoy freedom of association in order to enable them to protect their rights.

PROSECUTION

• Step up efforts to speedily investigate, prosecute, and convict traffickers including employment agents involved in different forms of labour exploitation and sex trafficking based on exiting anti-trafficking law.  Expedite cases involving trafficking in persons, whilst guaranteeing fair trail rights consistent with a human rights and child friendly based approach to criminal justice response.

TRAINING AND CAPACITY BUILDING

• Continue building the capacity of the Anti-Trafficking Unit of Ministry of Information to enable it to identify all forms of trafficking.
• Ensure continued training for law enforcement officials and government authorities to enhance their capacity to identify trafficked persons promptly and accurately and to make referrals to appropriate services. Additionally, train all stakeholders involved in providing assistance and care to victims of trafficking.
• Continue to provide training for criminal justice officials including prosecutors and judges to raise awareness about emerging trends of trafficking in persons, to ensure a human rights based and victim cantered approach to prosecution of criminals, and protection of victims. This could be done by the Kuwait Institute for Judicial and Legal studies in cooperation with UN and international institutions.

INTERNATIONAL & REGIONAL FRAMEWORK

• Ratify and domesticate relevant international human rights instruments including the International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families of 1990, the 1954 and 1961 Conventions on Statelessness; the 1951 Convention relating to the Status of Refugees and its 1967 Protocol; ILO Convention No. 189 on Domestic Workers and the ILO Forced Protocol (2014)
• Strengthen partnership with source countries and extend cooperation for exchange of information and mutual legal assistance with these countries. 
• Provide some level of support in source countries to ensure prevention and awareness raising and establishment of policies, mechanisms and comparable implementation levels, as well as financial aid to create victim support funds in the less developed countries. Consider implementing terms of bilateral labour agreements with source countries when these exist or enter into new agreements.

A full report of this visit will be submitted to the United Nations Human Rights Council in June 2017.