THE LEGAL ENVIRONMENT IN NEPAL FOR TRAFFICKING IN

UNCLAS SECTION 01 OF 03 KATHMANDU 000654

SIPDIS

SENSITIVE

STATE FOR G/TIP, G, INL, DRL, PRM, IWI, SA/RA, SA/INS
STATE ALSO PLEASE PASS USAID
LONDON FOR POL/GURNEY, NSC FOR MILLARD

E.O 12958: N/A
TAGS: KCRM PHUM KWMN PREF ELAB NP
SUBJECT: THE LEGAL ENVIRONMENT IN NEPAL FOR TRAFFICKING IN
PERSONS

REF:


1. Summary. Existing legislation governing human
trafficking in Nepal provides severe punishments for
traffickers and their associates and shifts the burden of
proof, in many cases, to the accused rather than the victim.
Draft legislation that would address victim rights and
protections expired after the dissolution of Parliament in
May 2002. The current laws have several shortcomings,
mostly related to the treatment of victims, while the legal
process usually involves lengthy delays with opportunities
for the accused to use bribery and threats to forestall
prosecution. In the Nepali year 2002/2003, only 19 percent
of prosecutions resulted in convictions, down from 26
percent the year before. Reporting of cases to the police
also declined to 40 cases in 2002/2003 from 92 cases and 125
cases the two preceding years. In March, two incidents were
reported in the media of former and current policemen
involved in prostitution rings, but details remain unknown.
End Summary.

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Existing Laws Against Trafficking
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2. Anti-trafficking legislation in Nepal has a long history.
Human trafficking was first declared an offense by King Rana
Bahadur Shah in the year 1749 and was codified into law in

1853. The current laws governing trafficking are a chapter
on "Trafficking in Human Beings" in the 1963 Country Code
and the 1986 Human Trafficking (Control) Act.


3. According to national law, trafficking is defined as

"An act of selling human beings with any motive, to
take away any person abroad with intent to sell, to
compel any woman to engage in prostitution through
allurement or enticement, deceit, threat, intimidation,
pressure or otherwise, and to hatch a conspiracy for
committing any of these acts, or to assist in or abet
such acts, or attempt to engage therein."

Punishments under the law are strong and delineated as
follows.

-- Traffickers may be punished with 10 to 20 years
imprisonment.

-- Any person who takes another person outside the country
with the intention of selling that person may be imprisoned
from 5 to 10 years.

-- Any person compelling any woman to engage in prostitution
may be imprisoned from 10 to 15 years.

-- A person who conspires in trafficking may be imprisoned
for up to 5 years.


4. Another strength of the 1986 legislation is its extra-
territorial application. Even a person who has committed a
punishable act under the law outside Nepal can be prosecuted
and punished as if s/he had committed the crime in Nepal.
However, the existing extradition treaty between Nepal and
India, the primary destination, does not include human
traffickers, effectively nullifying the extraterritorial
provision. The law also shifts the burden of proof to the
accused in cases involving cross-border operations.
However, if the accused is a guardian or relative, the
burden of proof remains on the victim.

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Draft Legislation
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5. In 2001, the draft Trafficking in Human Beings (Control)
Bill was submitted to Nepal's Parliament. The bill had
passed through committee and was ready for a floor vote when
the Parliament was dissolved in May 2002. Civil society
organizations and the Ministry of Women, Children and Social
Welfare anticipate the bill will be resubmitted once a
national parliament is re-elected. Unfortunately, the
ongoing Maoist insurgency and political impasse between the
King and political parties have prevented rescheduling
national elections.


6. If enacted, the new law would provide stronger protection
for trafficking victims, which is neglected under current
law. The draft bill protects the victim's privacy through
prohibiting the media from publishing information relating
to the victim without his or her consent; allowing for in-
camera hearings at the victim's request; and determining
that the victim need not reconfirm his or her statement in
court after s/he has given it in the first instance. The
victims are also granted the right to act in self-defense
even if the trafficker is injured or killed in such an act.
The bill also mandates creation of a "rehabilitation fund"
and establishment of rehabilitation centers.

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Shortcomings in the Law and Legal Process
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7. Most criticisms of the current law involve the lack of
protection for trafficking victims and the gender bias of
the law towards women and girls. Victims are required to be
present at all court hearings involving their case, making
it difficult to resume a normal life during the 2-3 year-
long judicial process. The law also fails to criminalize
the act of purchasing a human. Others in Nepali civil
society have commented that the law takes a moralistic
approach to trafficking, and government authorities often
treat victims poorly, contributing to social stigmatization
of the victims.


8. Still others are critical of the legal process, which
provides many opportunities for the accused to use bribery
and intimidation to forestall prosecution. The Nepal Police
are the first actors in the enforcement process. To
initiate an investigation, the victim must file a First
Information Report (FIR) with the police. Subsequently, the
police must obtain permission from the nearest district
court to initiate an investigation. Unfortunately, in many
districts, the Women and Children Police Service Center,
which is empowered to handle these cases, lacks the
resources (e.g., vehicle or means of communication) to file
a case quickly. The district headquarters -- and the court
-- can sometimes be several days away by foot. Police
cannot collect physical evidence, which in many instances is
time-sensitive and critical to successful prosecution,
without first reaching -- and obtaining permission from --
the court. Moreover, anecdotal evidence suggests that both
the police and court officials can be subject to bribery and
threats from the accused.


9. Once the court grants permission, the police officer
investigates the crime under the direction of a public
prosecutor appointed by the Office of the Attorney General.
Inadequate police training on how to conduct a criminal
investigation may contribute significantly to the low
success rate of prosecutions against traffickers in Nepal.
The public prosecutor is authorized to direct the
investigator; file charge-sheets with supporting evidences;
and oversee witness testimony to the police. After a charge-
sheet is filed in the court, the court records the statement
of the accused and the lawyers of both parties begin
pleading the case. The investigation and prosecution of a
case typically lasts between 2-3 years.

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Low Conviction and Reporting Rates
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10. Considering the delays and hurdles in investigating and
prosecuting trafficking cases, it is unsurprising that the
success rate of convictions for the Nepali year running from
April 2002 - April 2003 was only 19 percent. Out of 142
cases completed in 2002/2003, only 19 cases were considered
"successful" with 11 cases considered "partially
successful." In most cases, partial success implies that
the case involved more than one accused, but not all were
convicted.


11. The lengthy legal process and the requirement that
victims be present in all hearings contribute also to a low
reporting rate. The Maoist insurgency has led the police to
withdraw from most rural areas, making it more difficult for
victims to file cases and participate in the judicial
process. In 2002/2003, only 40 cases were filed with the
police, down from 92 cases and 125 cases the preceding two
years. In the same period, between 200-300 women and
children were rescued from trafficking situations, including
nearly 100 from brothels in India.

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Police Involvement in Prostitution?
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12. Although two recent press reports indicate corrupt
involvement of the police with prostitution activities in
Nepal, there is no evidence linking police with trafficking.
On March 15, a former Assistant Sub-Inspector of Police was
arrested for running a prostitution ring in Kathmandu. The
media also reported, on March 16, that three police
constables were arrested on charges of looting and
kidnapping a restaurant owner at the behest of Deepak
Chitrakar, owner of the Friendship Dance Restaurant in
Kathmandu. [Note. "Dance restaurants" are a kind of
indigenous nightclub and hostess bar where female employees
often are encouraged to engage in off-site prostitution.
End Note.] Post will seek further information on these
cases and the possible involvement of police corruption in
prostitution.

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Comment: The Way Forward
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13. Trafficking of women and children will continue to
plague Nepal until the underlying causes of illiteracy,
insecurity, extreme poverty and social/cultural values
degrading the status of women are addressed over the long
term. The absence of a sitting parliament also prevents the
passage of new legislation to improve victims' rights and
protections. However, a stronger legal environment, through
enhanced capacity of the police and increased coordination
between law enforcement agencies, might deter traffickers
from operating in Nepal. Post looks forward to initiating
an INL-funded program this year that will assist in this
effort. End Comment.