The Kafala System needs to be abolished beyond paper and law

Opinion Policy Analysis by Dina Richani, Staff Writer

September 23rd, 2020

Social media posts and tweets flooded the feeds of Lebanese with news that the Kafala system was on its first step to abolishment, but what is this ‘first step’ and what could happen next, realistically?

Caretaker Labour Minister Lamia Yammine said on Friday September 4th that she had issued a standard unified contract that “enshrines the rights” of the foreign workers. In a tweet, Yammine stated she has terminated the project to subject domestic service to the Lebanese labor law so that they obtain their contractual rights and “benefit from the broadest social protection.” 

Under the new contract, Article 1 requires that all employers and migrant domestic workers should adopt their standard work contract. Article 2 raises that this decision shall be effective as of September 21st, 2020, two days ago by now.

The contract consists of 20 points and states that the monthly payment should be the full monthly wage without any delay, provided that it is not less than the official minimum wage.In addition, each worker must be secured with a separate private room equipped with a lock and the key remains with the worker alone.

Further points that were raised in the proposition included that the migrant worker is, and would be, entitled to practice religious rights and cultural customs. Critically, it is important to note that this is of the first fundamental human rights and must in an orthodix manner go without saying. Further, necessary health care must be ensured when necessary the proposition continued. The employer also is not allowed to obligate the worker to perform work that might endanger his/her health or safety. 

The Universal Declaration of Human Rights, which Lebanon was a founding drafter to at the time of Charles Malik, states in Article 4 that no one shall be held in slavery or servitude; slavery and the slave and with Article 13 stipulating that everyone has the right to freedom of movement. However, this took 72 years after it was published for the new contract states that the worker should keep the documents, including the passport, ID, work permit, residency passport and insurance card. In addition to that, the employer is obligated to obtain the required legal documents without incurring any costs to the worker. Most importantly, the worker has the right to move freely, communicate with others, leave the house, and act freely during weekly rest periods, annual vacation days, and holidays. A critical aspect of human rights is whether the right is justiciable or aspirational, and in the case of Article 4 and Article 13, Lebanon’s constitution has not enshrined those rights as justiciable and as such violations of the rights are not able to be brought before the courts.

Further added to the contract is the right to make calls and own a mobile phone. In general, the weekly working hour is limited to a forty-eight-hour maximum for migrant workers, at a rate of eight hours a day. On top of that, the worker must benefit from the annual paid leave for a period of fifteen days after one year of starting work. Finally, on the contract, either party may terminate the contract unilaterally, provided that the other party informs the other party at least one month in advance. 

The 1741 hotline for domestic workers is also introduced for complaints, consultancy and support. Minister Yammine also stated that the contract will be printed in different languages and distributed to notaries across Lebanon. However, she added that the contract remains to be inadequate unless the Lebanese General Security are held responsible.

How sufficient, if sufficient at all, is this proposition contract?

Without stern implementation along with the provision of inspections and a systematic arena for migrant domestic workers to voice their complaints, the Kafala system cannot be brought to an end.  

The Kafala system, known as the sponsorship system, is a substitute to the Lebanese labour law which theoretically is supposed to be inclusive of migrant workers. The system that governs an estimated 250,000 migrant domestic workers in Lebanon constitutes the liaison between the worker’s legal residency to the contract with the employer. In that sense, if the contract is broken between the MDW and the employer, then the migrant worker will have an illegal residency.

“Right thing to do. Thank you Minister. Hope this will get implemented” says Ralph Tarraf, EU ambassador to Lebanon while endorsing ministry of labor in a tweet. 

However logically speaking, can the domestic worker legally break the “new” contract without the approval of her employer? Unfortunately that's not the case. The Kafala system will continue to play out in that sense and violate fundamental human rights if the current system continues. In Lebanon, when people usually refer to a good employer, the standards are way below the most basic human interactions. 

Diala Haidar, Amnesty International’s campaigner for Lebanon stated that “Having a brilliant contract according to international standards without a proper enforcement mechanism is only ink on paper.” In order to really carry out the new standard unified contract, Haidar says that proper inspection must be done because nobody really knows if no violations are happening  inside households.

In that path, although the recent news could be a step forward, the only possible prospective and possible abolishment of Kafala in Lebanon is through a proper enforcement mechanism. If changes only happen only on paper, that does not mean that migrant workers directly started living better lives in households. 

“The contract must meet international standards & be accompanied by stringent enforcement mechanisms,'' says Aya Majzoub, a researcher at human rights watch on Twitter. In order for mechanisms to take place and abolish the Kafala, a minimum wage, the right to change jobs or end the contract without losing legal residence status to retain passports must be guaranteed. Also, the migrant worker should most importantly have the right to leave the house freely during rest periods. They should also include a mechanism to ensure that they are being enforced and essentially holds any employer who violates the provisions accountable. 

Is there a blueprint to abolishing this system of slavery anywhere else in the world?

An Arab nation not far from Lebanon, Qatar, hosts about 1.2 million foreign workers making up 94 percent of its labor force. However, in 2017 the Qatari government joined a partnership with the International Labour Organization (ILO) to begin to reform its labour system.

On December 13 2016, the Qatari government proposed a new labour law which is said to bring "tangible benefits" to abolish the Kafala system. The new law aims at facilitating migrant workers’ change of jobs and leaving the country.  

While Qatar’s endeavor for complying with human rights was seen as a triumph for the Arab world, Amnesty International described the reforms as insufficient and ongoing with exploitation by employers. “This new law may get rid of the word ‘sponsorship’ but it leaves the same basic system intact. It is good that Qatar has accepted that its laws were fuelling abuse, but these inadequate changes will continue to leave workers at the mercy of exploitative bosses.”says James Lynch, Deputy Director for Global Issues at Amnesty International on the country’s 2016 labor reforms.

Back in January 2020, Qatar issued a ministerial decree that put an end to the exit visa that fell under the Kafala system. In that sense, migrant workers in Qatar do not need the employer ‘s permission to leave the country. While the ILO reported that the decree as is an "important milestone in the ... labour reform agenda", the Human Rights Watch (HRW) considered the change as inadequate because the employer’s consent is still needed for change of jobs. The HRW added that the permanent minimum wage levels still discriminated and migrant workers "still [faced] arrest and deportation [for leaving] their employer without permission".

Nowadays, migrant workers residing in Qatar can change jobs without employer’s consent which many see as a fundamental first step to fixing Qatar’s labour system. The ILO also mentioned that the new law has a new wage of $275 per month. This amendment will change after six months for existing contracts, according to the Guardian. In the case where employers do not provide food or shelter, then this cost should be added to the worker’s salary.

While the Qatari government also introduced a minimum wage of $1.3 per hour, this is not sufficient. Amnesty International praised the move as “an encouraging sign that Qatar may finally be heading in the right direction,” while employers can still file criminal charges against migrant workers forleaving their jobs without their permission.

“We call on Qatar to go further with these reforms, including removing the charge of absconding, to make sure that the rights of all workers are fully protected,” said Amnesty official Steve Cockburn. 

A continuing problem still remains in Qatar though where hundreds of workers die yearly from unknown causes, and the government does not investigate thoroughly into their deaths. Another issue that still stands as a violation to the UDHR is that trade unions remain outlawed, opposing Article 2, the right to desirable work and to join trade unions. 

 Although this is an accomplishing step for Qatar, it is such a shame that being host to the 2022 FIFA World Cup is what brought attention to migrant workers’ basic human rights. Ironically, this only portrays how the world is only run by entertainment and money industries rather than prioritizing humanity first. 

As James Lynch, a director at migrant rights group, FairSquare said: “the main test for the government would be whether it could enforce the minimum wage.” This is the same conflict for Lebanon. If the current system remains, there will be no change in the kafala system. In the end of the day, the Lebanese government is so inhumane and heavy exploiters that they would rather have the migrant domestic worker’s fundamental rights violated as a substitute to public facilities that should be offered from retirement homes to daycares.