The Supreme Court has directed the Nepal government to formulate a law to address human smuggling as the country lacks legislation to book the individuals who committed the offence.

Passing a verdict in a seven-year old case, a division bench of justices Hari Phuyal and Binod Sharma, pointing out the legal void to handle the offence, has asked the Ministry of Home Affairs to prepare a “proper, complete and clear” law to this end. It also has drawn the attention of the ministry towards the ratification of a related United Nations protocol.

“Write to the Ministry of Home Affairs for the ratification of the Protocol Against the Smuggling of Migrants by Land, Sea and Air, Supplementing the United Nations Convention Against Transnational Organised Crimes,” the Phuyal-led bench directed the top court administration.

The full text of the verdict from January in the case relating to Khem Bahadur Negi was made public on Thursday.

Two daily wager women came in touch with Maya Limbu, a manpower agent in 2017 who offered to take them to Kuwait as migrant workers. Limbu said she was ready to set them up for high-earning jobs there if they were willing. They agreed.

On September 1, 2017, Limbu informed them that they had already been granted visas for Kuwait. They would travel to India and fly to the destination country from there, she said.

The next day, the victim women left for Nepalgunj, a city that borders India.

On September 2, they were received by Negi at Nepalgunj bus park and kept in a hotel near Pushpa Lal Chowk. Negi sent them to Rupaidiha the next day on a rickshaw, saying that he would follow them on another rickshaw. If they were interrogated during checks, they should reply that they were visiting the Indian town for shopping, they were told.

They were stopped by a team of Maiti Nepal, a non-government organisation supporting victims of human trafficking, at the Jamunaha checkpoint, in a suspected case of human trafficking. Based on their statement, Negi was arrested by the police.

A case was lodged at the Banke District Court demanding action for human trafficking. The court on May 19, 2018 acquitted him, ruling out the intention to force the women on prostitution or hold them captive, therefore no human trafficking.

The police challenged the district court’s ruling at the High Court. On September 30 of the same year the Nepalgunj bench of the High Court Tulsipur gave him a clean chit on the same ground. The subordinate court’s verdict was challenged in the top court. A division bench of the court on January 14 upheld the lower court’s verdict, claiming it was a case of human smuggling but the attorney general’s office had lodged the case as per Human Trafficking and Transportation (Control) Act.

Pointing out that human smuggling is a different offence, the court ruled: “This offence cannot be addressed by the Human Trafficking or Foreign Employment act.” Without a proper law, the cases of human smuggling were filed under the two acts, according to the verdict.

As per the United Nations, human trafficking is the recruitment, transportation, transfer, harbouring or receipt of people through force, fraud or deception, with the aim of exploiting them for profit. Men, women and children of all ages and from all backgrounds can become victims of this crime, which occurs in every region of the world. The traffickers often use violence or fraudulent employment agencies and fake promises of education and job opportunities to trick and coerce their victims.

Migrant smuggling is the facilitation, for financial or other material gain, of irregular entry into a country where the migrant is not a national or resident, says the UN.

“Human smuggling is a cross-border issue that needs separate special mechanisms, modality and investigation techniques along with international support,” says a point of the verdict.

Published on: 20 August 2024 | The Kathmandu Post