Kafala and domestic workers: A situational analysis of a modern-day slavery system

This article takes an in-depth look at the status of female domestic workers from Africa and Asia working in the Middle East in conditions described as modern slavery. The article looks at the recruitment process and the daily lives of these workers, the various government reforms that have been put in place, and the leading role played by civil society in protecting and supporting migrant women.

Modern slavery, described by the International Labour Organisation (ILO) as “human trafficking”, differs from the slavery of the past, where slaves were considered a commodity. It endangers human dignity and rights and is characterised by forced labour, hazards, unpaid work, mental, physical and sexual violence, kidnapping, torture, and sex trafficking. While it continues to exist throughout the world and under different conditions, the case of the Middle East stands out for its legal specificity, namely the sponsorship system, better known as Kafala. Originating in Bedouin customary law in the Arabian Peninsula, Kafala, literally meaning “guarantee”, was intended to protect strangers to the tribe^[1]Islamic law uses the term to deal with the issue of guardianship without filiation of abandoned minors.. Over time, Kafala was transformed and adapted to the economic activities of the region, which intensified from the 1950s onwards, due to oil exploitation. This sponsorship system has become the driving force behind all regulations concerning unskilled foreign labour, entering the States of the Gulf Cooperation Council (Saudi Arabia, Bahrain, the United Arab Emirates, Kuwait, Qatar and Oman), Jordan, Lebanon and, to a lesser extent, Iraq.

In 2013, the ILO estimated the number of victims of forced labour in the Middle East at 600,000^[2]ILO, Trompés et piégés, la traite des personnes au Moyen-Orient, 2013, 186 pages, https://www.ilo.org/wcmsp5/groups/public/—arabstates/—ro-beirut/documents/publication/wcms_245789.pdf. The International Trade Union Confederation (ITUC) estimates that there are over 2.4 million domestic workers in the region. Although the first protests date back to the 1950s, and the Kafala system became more widely known with the scandals linked to the property boom in the 1990s-2000s^[3]Oriane Huchon, « Les migrations – Les travailleurs immigrés dans le Golfe », 17/03/2017, Les Clés du Moyen-Orient, … Continue reading, it is only more recently that domestic workers have been able to speak out about their living conditions. Domestic work, which is mostly done by women^[4]73.4% of migrant domestic workers are women according to ILO estimates: OIT, Estimations mondiales de l’OIT concernant les travailleuses et les travailleurs, migrants, 2013, p.5, … Continue reading – except a few jobs such as driving and gardening, which are, by nature, outdoor jobs – is highly undisclosed, because it is confined to the private sphere^[5]Destremau Blandine, Lautier Bruno, « Introduction : Femmes en domesticité. Les domestiques du Sud, au Nord et au Sud », In: Tiers-Monde, tome 43, n°170, 2002. p.250, … Continue reading. The advent of new modes of communication that are gradually penetrating homes around the world makes it possible to highlight (even in the workers’ countries of origin) their stories of abuse and crime while escaping government censorship^[6]The Facebook page « This is Lebanon » en est un exemple : https://www.facebook.com/ThisIsLebanon961/.

The purpose of this article is to highlight the plight of these long-ignored women, currently working within a legislative framework that runs counter to international commitments. By maintaining the Kafala system, the Arab host states, although committed to implementing the 1998 United Nations Declaration or the ILO conventions on human trafficking, are not assuming their responsability. The article will therefore focus on the current situation of domestic workers and the biggest losers in the system, by reviewing the various political reforms and the role played by civil society to provide an extensive overview of the issue.

The recruitment processes

In both South-East Asia and sub-Saharan Africa, the regions from which domestic workers migrate, recruitment agencies and brokers have sprung up to meet high demand from the Middle East. Faced with crippling unemployment rates and attractive pay packages, women from both rural and urban areas are jumping at the chance to apply for these highly attractive jobs. However, the nature of the jobs advertised – such as ‘teacher, saleswoman, nanny, nurse or caretaker for the elderly^[7]OIT, Trompés et piégés, la traite des personnes au Moyen-Orient, op. cit., p.53- are often very different from the reality on the ground.  The hiring process is also very simple to start with: all you need to bring is a passport and a photo, with the understanding that all administrative and transport costs are to be paid by the employer.

The kafil (guarantor), if he/she goes through the formal route, chooses his/her future employee from a gender-specific photo gallery – because only women are recruited based on their physique – with a salary scale based on racist criteria – since a Filipino woman is systematically paid more than an Ethiopian or Bangladeshi woman^[8]While the argument of a better knowledge of English in the Philippines is often used, the criterion of skin colour remains the main factor.. It is only once they are on the plane that some will learn that their final destination is not the country for which they had applied^[9]Especially for Iraq, which is not a very popular destination, others will be forced to work for free for the first few months to reimburse the airfare and administrative costs, which are legally payable by the employer.

Once there, the worker is welcomed by another local agent, or even directly by her employer, to whom she will have to hand over, to her great surprise, her passport and her residence permit to benefit from “her protection”^[10]“The domestic worker is a young member of the family who must be protected by the head of the family just like his or her own children. In such cases, the line between paternalistic protection … Continue reading. She then signs her employment contract, often in a language she does not understand, and officially finds herself under the legal and almost total control of her guardian.

The daily ordeal

In its report on trafficking of persons in the Middle East, the ILO lists “degrading working and living conditions, imposed by force or under threat of punishment”. The most common case among domestic workers is the lack of decent accommodation, i.e. a private room, as many of them sleep in communal areas, in the children’s room or the room of an elderly person. The exercise of restrictions on freedom of movement and communication is also blamed on employers, who may prohibit the use of telephones (even to contact family), establish permanent surveillance, or even confine – freedom of movement being subject to the employer’s consent in local regulations^[11]ILO, op. cit. p.55 ^[12]Ibid., p.58. This practice is aggravated by the confiscation of personal documents which, for example, was prohibited in Kuwait by ministerial decree for foreign workers except for domestic workers. A very common phenomenon is non-compliance with the rest hours and weekly work quotas set by the contract. The worker is very often exploited at any time of the day or night and never has a rest day, which is mandated at least once a week. It is important to note that domestic workers are much more vulnerable to this abusive behaviour, firstly because they are alone and isolated since they are not allowed to form unions (unlike construction workers, who can exert more pressure collectively), and secondly because they are women in deeply inequitable countries.

“I came to Kuwait on a domestic worker visa. […] One day his car came to park […]. He came in […] and said he had to see me. I followed him and he raped me in the car. I went to see a doctor and reported it to the police, then went back to work the next day. He reported to the authorities that I had run away and the police arrested me. My employer tells me that if I withdraw my complaint of rape, he will make sure that I am not deported.” ^[13]Ibid., p.66

This testimony is not an isolated case and could be similar to the one told by the Indonesian Tuti Tursilawati if she had not been executed for killing her rapist (and guardian) in self-defence^[14]« Indonesia protests Saudi execution of domestic worker », 31/10/2018, Al Jazeera, https://www.aljazeera.com/news/2018/10/indonesia-protests-saudi-execution-domestic-worker-181031094812124.html. Impunity for employers encourages them to use extreme methods of coercion (lies, misinformation, threats, economic sanctions) as well as psychological, physical and sexual violence. While running away remains the ultimate solution for some, at the risk of never receiving their salary, being repatriated for being in an unlawful situation, imprisoned for running away or presumed theft, or falling into the net of sex traffickers, others choose suicide or worse, are murdered by employers who declare them as suicides. On average, two domestic workers per week lose their lives in Lebanon (a country of 6 million people).

 The imbalance and reforms of Kafala

The reality described above stems from the profound imbalance resulting from the paternalistic nature of Kafala. The worker is completely dependent on her employer and guarantor for the duration of the stay^[15]Even if the contract is terminated, she remains dependent on the employer until she completes the administrative procedures for her return, requiring the payment of expenses (at the employer’s … Continue reading, requiring his/her (the employer’s) agreement for the most essential steps to her freedom, such as changing employer or leaving the country. Being responsible for her before the law, she loses all her autonomy and becomes even more vulnerable^[16]For example, an employer in Lebanon has a duty not to allow their employee to have a romantic relationship or to get married : Laure Stephan, « Au Liban, les domestiques étrangères ont … Continue reading.

To put an end to this exploitation, some countries where the migrants come from (Côte d’Ivoire, Ethiopia, the Philippines and Nepal) have taken restrictive measures and have banned their nationals from obtaining work visas to certain Middle Eastern countries. Easily circumvented, these policies were quickly overtaken by corruption and the use of informal voices, given an extremely coveted market.

On the other hand, Arab countries, regularly singled out by human rights organisations, are also seeking to reform their regulations on migrants and to strengthen their implementation through more competent institutions. At the international level, the gradual ratification of the Palermo Protocol against Trafficking in Persons by all relevant Arab countries introduced a significant step forward in the first decade of the year 2000. In 2009 in Bahrain, allowing migrant workers to change employers without the consent of the employer is seen as a ground-breaking development^[17]In 2011, a law will add a condition of a minimum of one year of service to the first employer..  The national labour code, which excluded domestic workers in most host countries, was revised: in 2008, Jordan repealed this exclusion; while Bahrain in 2012 gradually incorporated provisions for domestic workers into its legal framework. Lebanon adopted a standard unified contract in 2009 to guarantee some basic rights, especially regarding the termination of the contract. Still ineffective, a new contract came into force in September 2020^[18]« Liban. Le nouveau contrat type unique doit sonner le glas du système de kafala », 22/06/2020, Amnesty International, … Continue reading to reaffirm and reinforce the basic rules concerning the freedom and dignity of female employees.  These legislative decisions are accompanied by the creation of new institutions such as the Qatar Foundation for Combating Human Trafficking (2010), as well as new initiatives such as the strengthening of the labour inspectorate, or the setting up of hotlines and shelters for refugees.

Since the announcement in 2014 that the next football World Cup would be held in Qatar, construction workers have been in the spotlight. Denounced by the ILO, Amnesty International, HRW and the ITUC, the Kafala will finally be abolished in 2019 following numerous reforms. A minimum wage set at $200, freedom of movement and travel, and the possibility of changing employers are among the greatest advances^[19]“In Qatar, major labor law reforms end kafala system,” 10/16/2019, ILO, https://www.ilo.org/global/about-the-ilo/newsroom/news/WCMS_724343/lang–fr/index.htm. While the world’s most publicised event will have resulted in a major legal breakthrough, it is difficult to see the difference on the ground. With less than two years to go before the championship kicks off, wages remain unpaid, workers’ papers unrenewed, and recruitment costs still being paid illegally by migrants (driving them into debt and alienation despite the amendments). Although female domestic workers also benefit from the abolition of Kafala, the 2022 World Cup will bring them less exposure and, in effect, far less change than their male counterparts – again for the same reasons of gender and coercive power.

Civil societies as first and last resort

Despite all the legislative and institutional progress, the rights and living conditions of domestic workers continue to be violated for several reasons. Firstly, the lack of labour inspection mechanisms in the private sphere makes it difficult to stop abuses. Also, for the most courageous and informed, the decision to go to court continues to be risky, as complaint and investigation mechanisms are still not adapted to listen to and properly accommodate trafficked women due to a lack of awareness and strict procedural planning for the referral of trafficking in persons. In addition, the trial process is very long (up to 12 months), rarely giving the right to protection to the complainants, who often find themselves in an illegal and vulnerable situation. Left to their own devices, the women workers have no other interlocutor than civil society in the various host countries.

Across the Middle East, civil societies have mobilised to address the ineffectiveness of policies and their limited means of implementation^[20]Note that it is in the absence of affordable public aid to take care of children and the elderly, that Arab families (also with low financial means) turn to the cheap alternative of Kafala.. Targeting migrant women, in particular, given their greater precariousness, associations generally offer temporary accommodation, legal and psychological support, cultural workshops and, in the event of a crisis, necessities. NGOs have become indispensable and an integral part of the response, sometimes going so far as to be integrated into the state structure, as in the case of Caritas, which has a permanent presence in the administrative detention centre for foreigners in Lebanon. More informally, women workers come together to help each other or organise social movements to express their discontent in the Arab countries that are most tolerant of freedom of expression – namely Jordan and Lebanon, where trade unions have emerged (legally and clandestinely respectively).

Despite the best efforts of civil society to improve the situation of domestic workers daily, there are structural limitations such as corruption^[21]The ILO report states that in Jordan, even though NGOs file complaints with the court, “no cases of trafficking, ill-treatment or sexual abuse have been reported, as recruiters are wealthy and … Continue reading. Xenophobia and misogyny remain the biggest obstacles that NGOs face and try to address through advocacy. Discrimination against women is pervasive as it is deeply rooted in cultural attitudes, government policies, and legislative frameworks in Arab countries^[22]Valentine Moghadam, « Féminisme, réforme législative et autonomisation des femmes au Moyen-Orient et en Afrique du Nord : l’articulation entre recherche, militantisme et politique », … Continue reading. It is reflected in all strata of society, among officials and citizens alike. Anti-feminism and casual racism^[23]Julie Kebbi, Stéphanie Khouri, « Racisme systémique et “esclavage moderne” : être noir dans le monde arabe », 20/06/2020, L’Orient-Le Jour, … Continue reading, stemming in part from a colonial historical background^[24]This baggage is made up of misogynistic and racist ideas and regulations, some of which are still in force, brought by the colonists. On the other hand, it takes the form of reactionary behaviors: … Continue reading, are also compounded by the anti-poor stance of affluent recruitment circles. As an example, the scandal of the banning of domestic workers from swimming in Lebanese private clubs^[25]Richard Hall, « Liban. Les plages de l’apartheid », 28/06/2012, Courrier International, https://www.courrierinternational.com/article/201e2/06/28/les-plages-de-l-apartheid in 2010 clearly illustrates the accumulation of these attitudes.

With the occurrence of the October 2019 uprising in Lebanon, a glimmer of hope was felt when domestic workers took to the streets en masse alongside Lebanese people to demand the abolition of Kafala. This surge of solidarity, combining for the first time the demands of migrants with those of locals, is rooted in an atmosphere of widespread exasperation during a period of unprecedented economic crisis – driving more than half of the Lebanese population below the poverty line. Compounded by the Covid-19 pandemic, the fall in the Lebanese pound made it impossible to pay salaries, and hundreds of women workers (some of them homeless) were forced to go to the doors of embassies to demand their immediate repatriation^[26]Depending on nationality, some will be repatriated, some will be housed and some will be left to fend for themselves.. Finally, the third-largest explosion in the world, which took place on 4 August 2020 in Beirut, only worsened the situation of the employees in the capital, who were sometimes dislodged or even expelled^[27]Detailed analysis in : Léa Polverini, « Les travailleuses domestiques au Liban ou la honte des invisibles de l’explosion », 25/08/2020, Slate, … Continue reading. Their appalling situation remains, to this day, highly volatile.

Attempts to reform and abolish the Kafala system in the Middle East have thus proven insufficient in the face of the lack of resources deployed and the hostility of state and societal structures towards women, who are also foreign and poor. Moreover, in the absence of democratic regimes that respect the international human rights obligations of their citizens (undignified living conditions, failing education systems, state repression), it will be difficult to see them fighting for foreign workers to achieve truly global change.

In addition to the rigid governmental structures that advocates for domestic workers face, the advocacy and scholarship^[28]Gaps in the literature on the origins of forced prostitution and sexual exploitation need to be filled, especially in relation to forced and temporary marriages (early or otherwise) – … Continue reading that has been produced in this regard suggest that in the long term, the living and working conditions of domestic workers may improve. The George Floyd case, despite the low level of anti-racist awareness in society, has nonetheless triggered debates and new campaigns on issues that had previously been minimally discussed, including explicitly the situation of black workers in Arab territories. The international impact of the “Black Lives Matter” movement, with its unexpected success on the Arab web, finally illustrated a certain evolution of mindset and a renewed hope on the part of new generations.