Problems in enforcement
All countries suppress slavery and different forms of forced labour by constitutional or legislative provisions. The legislation on slavery and bondage indicates their acceptance of the international standards and sets the goal in the national context. However, these practices persist in many parts of the world, because legislation by itself, even when sincere efforts are made for its implementation, cannot wholly eliminate them. On the other hand, the battle against slavery and bondage cannot be won without legislation.
Certain serious deficiencies persist in national legislation on slavery and bonded labour:
• While the constitution of a country may prohibit slavery and bondage, the punishment for contravention has to be provided by law. For example, the Constitution of Nepal states that "traffic in human beings, slavery, serfdom or forced labour in any form is prohibited. Any contravention of this provision shall be punishable by law". The most prevalent form of bondage in Nepal is the Kamaiya system. However, no law exists which identifies the system to be one of forced labour or which prescribes a punishment for imposing it on a person.
• Legal statutes do not always define bondage with sufficient precision. It is, therefore, often unclear whether a particular practice comes within its definition. For instance, article 149 of the Brazilian Penal Code condemns slavery, but does not define the term used, plágio, leaving it to the enforcement agency to interpret it. Anti-Slavery International reports a case in which police raided a plantation but made no arrests, nor did they liberate the bonded labourers because they did not find "any gunmen at the estate" and could not, therefore, characterize the case as falling under the provisions of the Code.11
11 A. Sutton: Slavery in Brazil, (London, Anti-Slavery International, 1996), p. 19.
• The lack of rules and instructions on the implementation of the statute often renders it a dead letter. For instance, in Pakistan the rules under the Bonded Labour System (Abolition) Act, 1992, were issued by the Federal Government in July 1995. Without these rules, it was not possible for the provincial governments to empower the district magistrates to release and rehabilitate bonded labourers. An important arm of enforcement of the law on the abolition of bonded labour in both India and Pakistan is the vigilance committee, but Reports of the ILO Committee of Experts over the past several years point out the delay in setting up these committees and the failure to monitor their functioning.
• The population, and in particular the social groups which are the most at risk, lack information because of insufficient diffusion of information, dissemination in a language which is not the ordinary language of the population, or dissemination only through the written press whilst the populations at risk are illiterate. This lack of information, and more generally the lack of education on human rights, is a crucial point for action, all the more since debt bondage, for example, is often profoundly anchored in the social customs of the populations concerned.
• The schemes for the identification, release and rehabilitation of bonded labour are designed with adult bonded labourers in mind.
• The most serious deficiency in the legal system is the weakness in implementing the law. Although the general criminal law has an application in the case of bondage, it is seldom used to protect bonded workers. In fact, owning to close ties between the landlords and the police or the magistracy in some countries, the employers have been able to press charges of criminal breach of trust against the workers if they tried to escape before liquidating the loan.
Box 5.10. National legislation on bonded labour in India and Pakistan
"The Act provides that the bonded labour system shall stand abolished and every bonded labourer shall stand free and discharged from any obligation to render any bonded labour. The law provides for the establishment of vigilance committees which include members of scheduled castes or scheduled tribes and social workers. The committees advise on proper implementation of the Act, provide for economic and social rehabilitation of the free labourers, co-ordinate the functions of rural banks and cooperative societies with a view to providing adequate credit to the freed labourers, and defend any suit instituted against a freed bonded labourer for the recovery of bonded debt. Under the Bonded Labour System (Abolition) Rules, 1976, the registers maintained by the vigilance committees must include the names and addresses of the freed bonded labourers and details of the benefits which they receive, including benefits in the form of land, inputs in agriculture, training in handicrafts and allied occupations, and loans. Under the Act's enforcement measures, 'compulsion to render bonded labour, advancement of bonded debt, enforcement of any custom, tradition, contract, agreement or other instrument requiring any service to be rendered under the bonded labour system are punishable with imprisonment for up to three years and a fine'."
"... In Pakistan, the Bonded Labour System (Abolition) Act, 1992, declares the abolition of the bonded labour system and states that every bonded labourer is to be freed and discharged from any obligation to render any bonded labour. No suit or other proceeding can lie in any civil court, tribunal or before any other authority for the recovery of any bonded debt or any part thereof. The Act provides for special enforcement measures, including the setting up of vigilance committees at district level. These committees comprise elected representatives of the area, representatives of the district administration, bar associations, press, recognised social services, and labour departments of federal and provincial governments. Their functions include advising the district administration on matters relating to the effective implementation of the law, helping in the rehabilitation of freed bonded labourers, monitoring application of the law, and providing bonded labourers with the necessary assistance to achieve the objectives of the law. The Bonded Labour System (Abolition) Rules, 199 5, provide that provincial governments are to establish one or more authorities to deal with the restoration of the properly of bonded labourers, and confer upon every district magistrate the power to inspect workplaces where a system of bonded labour is suspected to operate. Provincial governments are also to establish vigilance committees to enforce the Act, as well as a fund to finance programmes to assist bonded labourers. Compulsion to render bonded labour or extracting bonded labour under the bonded labour system is punishable with imprisonment from two to five years or with a fine of 50,000 rupees, or both."12
12 ILO: Child labour: Targeting the intolerable (Geneva, 1996), p. 65.
Helping countries address the problem of bonded child labour has proved extremely difficult. Principal obstacles to freeing bonded child workers are the hidden character of the problem, and powerful vested interests to maintain the status quo. Local authorities are not keen or able to follow rules and regulations set at the national level, citing administrative apathy or complicated legal procedures. Such resistance prevails because servitude is deeply rooted in rural social and economic structure.
Reinforcing the lack of political will at the highest places of authority is the apathy engulfing both the victims of servitude, who are not aware of their rights, and the general public, who lack information on the human suffering taking place in their country.
The few NGOs who actively combat bonded child labour face serious resource limitations and other obstacles. In some countries, these NGOs are considered by the authorities to be engaged in subversive activities. The mistrust sometimes existing between government and NGOs involved with child rights and child labour prevents cooperation between them and hampers efforts by international organizations to support NGO activities in this field.
Enforcement of legislation against child bondage is a major problem. There are several reasons for this:
• the informality and invisibility of bonded labour and the difficulty of reaching children in bondage;
• the long delay between identification, prosecution and release;
• the inadequacy of financial resources for inspection and enforcement, and the lack of capacity of organizations and lack of coordination among concerned agencies;
• the lack of cooperation from employers and, in some cases, the bonded child workers and parents themselves who, because the practice is illegal, may collaborate in concealing the problem; and
• apathy among the victims and the general public.
Box 5.11. Prevention and elimination of bonded child labour
In Pakistan, a major pilot programme has been launched to prevent and eliminate child bonded labour. It is the first comprehensive programme to address child bonded labour in the country through concerted action by governmental and non-governmental organizations. The programme focuses on direct action with children and their families; strengthening government machinery responsible for law enforcement, social welfare and education at the local, provincial, and national levels; and strengthening capacities of NGOs. In addition, child bonded labour in the production of carpets will be targeted through future action programmes to eliminate child labour.
The programme's strategy is to mobilize a broad alliance of governmental and nongovernmental agencies, communities, employers, parents and children in taking joint action against child bonded labour through a three-pronged approach:
• establishing 18 Community Education and Action (CEA) Centres for a selected number of children in specific economic sectors and occupations with a high incidence of child bonded labour; withdrawing a selected number of bonded children from exploitative and hazardous work, and preventing their younger siblings from entering such work; and mobilizing communities to prevent child bonded labour;
• strengthening the capacity of the Directorates of Labour and Welfare to monitor workplaces, to withdraw bonded children and to ensure that these workplaces become and remain free of child bonded labour; and
• institutional development of other key governmental agencies and selected NGOs to provide an integrated package of support services to ex-bonded child workers, their younger siblings and their families to prevent further child bonded labour through community mobilization.
A broad-based National Task Force on Prevention of Trafficking in Children was set up under the Ministry of Women and Social Welfare in Nepal to provide guidance and policy advice for the implementation of action programmes against child trafficking. The Task Force consists of representatives of the concerned government ministries, representatives of the National Planning Commission, the police, and NGOs dealing with the issue. International organizations, such as the ILO and UNICEF, provide technical support to the Task Force.
The Ministry of Women and Social Welfare, in consultation with the National Task Force, has instructed the chairpersons of 19 District Development Committees (in areas where the problem of trafficking is endemic) to set up District Task Forces with themselves as the Chairpersons of the Task Forces, the Chief District Officers as the Vice-Chairpersons, and representatives from the police, social organizations, local NGOs, and District Child Welfare Boards as the members. The District Task Forces will be authorized to play an active role in coordinating district-level activities against trafficking in children and their commercial sexual exploitation; identifying the vulnerable Village Development Committees and communities in the district; and assisting in the implementation of suitable programmes in the affected areas.
A consultative workshop on the development of the National Plan of Action against Trafficking in Children and their Commercial Sexual Exploitation was held in Kathmandu from 22-24 April 1998. Sixty representatives from governmental and non-governmental organizations, employers' and workers' organizations, representatives of diplomatic missions and United Nations agencies, the police, NGOs and donor organizations participated and identified the following six areas of action to prevent trafficking:
(i) policy, research and institutional development;
(ii) legislation and enforcement;
(iii) awareness creation, advocacy, networking and social mobilization;
(iv) health and education;
(v) income and employment generation; and
(vi) rescue and reintegration.