The worst part? It’s completely legal.
The Kafala system is an unjust system that holds in its grip upwards of 250,000 migrant domestic workers in Lebanon1, rendering them powerless to defend themselves against their employer and reducing their state to the extremes of a modern form of slavery. International and local non-governmental organizations demand to this day the abolishment of the system as a whole, due to its complete disregard for the treatment of the domestic workers that fall under its yoke.
Table of Contents
I. What is Kafala?
The Kafala system is an employment framework where a migrant worker’s immigration status is legally bound to an individual employer or sponsor “كفيل” during the contract period. While this notion seemingly brings no harm to one party or the other, the reality is much grimmer.
To begin with, an estimate of 250,000 migrant domestic workers work in private households, mostly in Lebanese middle and higher-income families. These foreigners are all employed under the same “standardized” work contract, specially made for migrant domestic workers, thereby subjecting all parties to the same legal obligations and duties: the Kafala system. This system aimed to secure both parties’ interests, whether , through Clause 8 that states “The First Party shall pledge to meet the requirements and conditions of decent work and fulfil the Second Party’s needs, including food, clothing and accommodations with which his/her dignity and right to privacy are respected.” or by clearly expressing the duties of the worker in Clause 7, which states that “The Second Party shall pledge to perform his/her work in a serious and sincere manner and to comply with the instructions of the First Party, taking into consideration the work rules, customs and ethics and the privacy of the house.”
If the obligations and duties of both parties appear balanced, reality beckons to differ, for domestic workers are excluded from protection of the Lebanese Labor Law. In other words, the Ministry of Interior oversees issues regarding sponsorships. In fact, domestic workers are the first type of workers exempted from the Labor Law regulations (according to Article 7 of the Lebanese Labor Law), which means that they do not fall under its scope, even though, paradoxically, the Labor Law should protect the “weak” party in a work contract regardless of their nationality. In other words, if the average worker benefits from the protection of the Labor Law, then shouldn’t it extend to the migrant domestic worker, potentially exposed to more risk and whose usual occupation consists but is not limited to living in a house with a family of strangers, often tending to housekeeping ?
“سنمضي قدما في خطة #إصلاح_نظام_الكفالة” هذا ما أكدُته لسفير الاتحاد الأوروبي في لبنان رالف طراف. الوزارة اتخذت عدة اجراءات تمهيدية منها: #عقد_العمل_الموحد الذي يضمن حقوق العاملات في الخدمة المنزلية، وضع الخط الساخن لتلقي شكاوى العمال والتحضير لإبرام اتفاقيات مع السفارات المعنية.— Lamia Yammine Douaihy (@lamiayammine) June 8, 2020
As such, international organizations such as Amnesty International, the Human Rights Watch, and the International Labor Organization (ILO) have repeatedly pleaded for the abolishment of the Kafala system in Lebanon. Their voices did not go unnoticed when then minister of Labor, Camille Abu Suleiman, pledged to modify the Kafala system, but to no avail. Nevertheless, the new minister of Labor, Lamia Douaihy, stated on twitter that “we are moving forward with the plan of “reforming the Kafala system”, adding that “the ministry has taken many preliminary procedures including instituting a standard unified contract, which guarantees the right of domestic workers, as well as establishing a hotline to receive complaints from said workers […]”
While the contract could be considered a step forward from the previous one, it is not, however, nearly enough to ensure the protection of these workers. Without any tangible fears from prosecution, sponsors would mostly disregard the contract itself, as is the norm, for neither the government provides any effective supervision nor are any embassies willing to demand the fair and humane treatment of their nationals. Consequently, this leads to common contract breaches regarding issues such as passport, phone confiscation, overwork, and the general mistreatment, all considered violations of clauses 6-8 and 11 of the standard contract (Unified Contract Decree No. 19/1 dated 31/12/2009)2 as well as infringements of over a dozen Articles of the Universal Declaration of Human Rights (UDHR), which was rendered part of the Constitution3.
II. The Legal Framework
1. A Living Nightmare for Domestic Workers
First and foremost, Article 4 of the UDHR states that “No one shall be held in slavery or servitude”, for “slavery and the slave trade shall be prohibited in all their forms”. Furthermore, the 1926 Slavery Convention provides the first international definition of slavery, which is “the status or condition of a person over whom any or all the powers attaching to the right ownership are exercised…[and] included all acts involved in the capture, acquisition, or disposal of a person with the intent to reduce him to slavery; acts involved in the acquisition of a slave to sell or exchange him; all acts of disposal by sale or exchange of a slave acquired to be sold or exchanged, and in general, every act of trade or transport in slaves.”
This definition casts light on the bitter reality of these domestic workers’ conditions. While some may not go as far as to call it slavery in fine, the parallelism between the definition of slavery and the abuses and requirements expected of a domestic worker in Lebanon is uncanny. Ranging from the sense of ownership sponsors usually hold over the domestic workers, to most recently, the demeaning and degrading attempt to “sell” a worker through social media platforms, one would notice a thin line between the “Kafala system” and blatant modern slavery.
The UDHR mentions in article 23 par. 1 that “Everyone has the right to work, to free choice of employment, to just and favorable conditions of work, and to protection against unemployment.” Objectively, the Kafala system in and of itself is a violation of said article. In reality, the system is rigged in a way that the worker is wholly dependent on the employer. In other words, the worker legally is “bound” to the sponsor and therefore unable to change jobs based solely on their free will, lest they obtain a written permission from their employer stating otherwise. This shackling of the Kafala system undoubtedly leads to poor working conditions, underpayment, nonpayment, excessive working hours…
As such, one of the main reasons why these workers cannot file a report is due to lack of access to means of communication or even access to outside of the workplace environment. These breaches of both clauses 11 and 12 4 of the standard contract and article 24 of the UDHR regarding rest, leisure and reasonable pay, are daily occurrences, most domestic workers being unable to claim their most basic and fundamental rights because of the power imbalance between migrant domestic workers and their employer. Therefore, and in the absence of any alternative, these workers would have to endure whatever hardship comes their way. In some extreme situations, living conditions reached such a low that the workers would find solace in death rather than continue under these horrid circumstances. Hence the increase of migrant worker suicides in Lebanon, with an estimate of one to two migrant women per week, as well as the alarming rise in migrant domestic workers seeking refuge within their own embassies, the Nigerian embassy in Lebanon having informed Thomson Reuters “that 69 Nigerian women, 50 trafficked girls and 19 stranded women already flew home on Sunday, May 24 .”
Nowadays, a sliver of hope for some would be in the form of repatriation, especially in a bankrupt country such as Lebanon, but that remains a far-fetched dream to some workers simply because some embassies, such as the Kenyan or the Ethiopian, are unable to aid them. Indeed, while progress was able to be made with the Philippines launching a free repatriation program for their nationals, the same cannot be said for the Ethiopian embassy. In 2019, after the Ethiopian ambassador to Lebanon Mohammad Berihu stepped down, he was replaced by his chargé d’affaire Aklilu Tatere who enforced a non-engagement policy with migrant domestic workers that were subject to abuse. In other words, unless the order comes directly from the Foreign Ministry in Addis Ababa, it will no longer accommodate Ethiopians coming in person to the consular office requesting help. The dichotomy of these situations goes well beyond the willingness to repatriate nationals, for they carry a deep financial connotation. Ethiopia is the second most populous nation in Africa yet one of the poorest; thus, it is not economically feasible to broach an all-expenses paid repatriation program, and, unfortunately, it seems as if it is faced with reluctance rather than enthusiasm.
Left to their demise by their home country and rendered powerless in the Lebanese Kafala system, what is the legal framework adopted to help domestic workers escape from their doomed situations?
2. Local NGO’s Stance
Legal agenda and Kafa are two local non-governmental organizations that continuously reject the sponsorship system. While Legal Agenda’s role today mainly boils down to denouncing the lack of humanity regarding unfair treatment of domestic workers in multiple articles, its lawyers have countlessly participated in a roundtable discussion with Kafa, the ILO, and the minister of Labor about the changes needed to the standard unified contract.
Kafa is another NGO that has a program specialized in migrant domestic worker cases while discussing the Kafala system as a whole. It was stated that the system is akin to slavery and in many ways eases human trafficking.
What both of these organizations found commonly in court is that, in most cases, the sponsor almost always blames the worker. To put things into perspective, in cases where the worker flees the sponsor’s house, said sponsor tends to fabricate claims stating that the worker has both stolen and escaped the house, regardless of the veracity of these allegations. These actions by the sponsors are not “unfounded”, for in order to be absolved of any responsibilities, they have every intention to invoke the breach of Clause 16 of the Unified Contract. In such situations, the primary allegation is theft, a crime, as stated in article 635 and 636 of the Lebanese Penal Law. Should, however, the worker flee the premises without committing any theft, the sponsors can only pursue civil actions. Consequently, and absent any criminality, public prosecutors would dismiss or drop the case, but the worker would be forced to live a life outside of the law, absent their belongings and papers, usually, if lucky, finding comfort in the discarded community of other, similar, domestic workers that etched a life for themselves in the outskirts of Beirut.
A preconceived notion in most Lebanese households is that the sponsor is responsible for the worker’s actions while under their “care”, which triggers them to confiscate the worker’s passport, effectively holding them hostages to both stop the worker from attempting any theft and to deter them from fleeing. The truth, however, is that the sponsor has a civil duty to pay the governmentally installed fees and that in the cases of fleeing, the sponsor would only have to report the incident in order to lift responsibility, i.e. the sponsors obligation extend solely on the administrative side .
Should the case not be dismissed, the procedure inside the court would be a mere routine for judges. Almost at every hearing, judges would rule in absentia of the defendant. On the rare occasions where the defendant is present, judges would not ponder the causes of the fleeing, which usually leads to the presumption that the domestic worker did indeed commit theft. From the hearings attended by Kafa representatives, judges would simply ask the worker (if caught) if they had stolen anything, which would naturally entail a negative response from the defendant, effectively dismissing the theft charge due to lack of evidence.
Additionally, in the theoretical eventuality that the roles be reversed (if the worker managed to get legal help and prove contract breaches by the sponsor), and the defendant, now the sponsor, being found guilty on claims of such breaches, they would simply be blacklisted. In other words, the sponsor’s penalty would be not being able to sponsor another domestic worker. However, even though it is counter-intuitive and raise alarming questions, their spouse still could.
3. International Response
Some of the biggest allies in the fight against the Kafala system are the International Labor Organization and Amnesty International, both of which having participated alongside local NGOs to discuss with the Ministry of Labor possible resolutions to the matter. This solution was to take the form of a new, improved unified contract. According to Amnesty International, some of the ideas suggested include, but are not limited to:
- The right of all workers to resign and terminate their employment contract at will without immediately losing valid immigration status;
- The right of all workers to change employer without the consent of their current employer and without losing valid immigration status;
- Ensuring that all domestic workers are eligible for the national minimum wage, thereby ending discrimination based on the nationality of the worker;
- Prohibiting the confiscation of the worker’s passport and identity documents by employers;
- Enabling live-in domestic workers to leave the household freely during their daily and weekly rest periods, and an explicit prohibition on locking workers in the houses of their employers.
As such, if the proposals were to be met, that would simply spell the end of the current Kafala system. Since the latter is essentially a restrictive sponsorship system, stripping away the hold the sponsor has over the worker would not only lead to the system’s adjustment, as previously asserted by the former and current minister of Labor, but also abolish it in favor of something that is, at the very least, much fairer and more appropriate than what has previously been.
III. The Social Context
The phenomenon that has occurred in front of the Ethiopian embassy, early this month, was bound to happen. With the economic crisis upon Lebanon, the rise of the dollars, the prospects of the Ethiopian embassy helping zero to none, and the conditions of most migrant workers left stranded in front of the embassy, the issue caught local media attention. If we were to analyze the situation of the stranded and kicked-out workers (or recently relocated by the minister of Labor in Lebanon), then three types of situations can be observed. The first is that of workers whose sponsors cannot afford to pay them anymore. The second is related to those workers whose contract has ended while the country was on quarantine, thereby having no effective means of flying back to their home countries. Last but not least, those who are now under an illegal status by being previously separated from their sponsors.
Despite the fact that the Kafala system undertook attempts at reform, unfortunately, none of the previous nor the current realities of the sponsorship system prevailed in conciliating between basic human rights and the “ever-crucial” need to have a domestic worker at one’s disposal.
As Thomas Grey pointed out, “where ignorance is bliss, ’tis folly to be wise”. In other words, it would be better to remain unaware or ignorant of things transpiring that may otherwise cause one distress and disturbance. Such a lax attitude, however, would faithfully describe the Lebanese consciousness’s passiveness with regards to the plight of the domestic workers suffering within their own backyard. Nevertheless, with the resurgence of the Black Lives Matter protests unraveling in the globe ever since the outrageous death of the late George Floyd on May 25th of this year, Lebanese have shown support, reiterating and plastering on social media black pictures in order to portray solidarity with hashtags such as #blackouttuesday. Unfortunately, no show of support has been shown internally, the average Lebanese feigning obliviousness, willfully ignoring, or simply having lost interest in the cause of the same black lives residing with them. Until this topic is trending again, for reasons beyond our borders or understanding, our actions, or lack thereof, are only guided by the distorted and hypocritical vision of the moral compass the Lebanese possess and so easily discarded when it suits them best.
• “End Kafala: Justice for Migrant Domestic Workers in Lebanon”, Amnesty International, https://www.amnesty.org/en/latest/campaigns/2019/04/lebanon-migrant-domestic-workers-their-house-is-our-prison/ [Accessed 12/6/2020]
• “REFORM OF THE KAFALA (SPONSORSHIP) SYSTEM”, International Labor Organization, https://www.ilo.org/dyn/migpractice/docs/132/PB2.pdf [Accessed 12/6/2020]
• “KAFA proposes alternatives to the “sponsorship system” for migrant domestic workers in Lebanon”, Kafa, https://www.kafa.org.lb/en/node/187 [Accessed 13/6/2020]
• “عقد عمل موحد خاص بالعمال والعاملات في الخدمة المنزلية”, https://www.alre7ab.com/index.php?s=700&id=4846 [Accessed 13/6/2020]
• “Universal Declaration of Human Rights”, United Nations, https://www.un.org/en/universal-declaration-human-rights/ [Accessed 13/6/2020]
• “Lebanon: New Kafala consultation an opportunity to protect migrant workers’ rights”, Amnesty International,https://www.amnesty.org/en/latest/news/2020/03/lebanon-new-Kafala-consultation-an-opportunity-to-protect-migrant-workers-rights/ [Accessed 13/6/2020]
• “Protecting the rights of migrant domestic workers”, International Labor Organization, https://www.ilo.org/wcmsp5/groups/public/—arabstates/—ro-beirut/documents/publication/wcms_402364.pdf [Accessed 13/6/2020]
• “Seven Ethiopians die in Lebanon while their consulate abandons them”, Open Democracy, https://www.opendemocracy.net/en/north-africa-west-asia/seven-ethiopians-die-lebanon-while-their-consulate-abandons-them/ [Accessed 13/6/2020]
• “هذه مأساة عاملات إثيوبيات تُركن على الرصيف في لبنان”, alaraby, https://www.alaraby.co.uk/society/2020/6/4/%D9%87%D8%B0%D9%87-%D9%85%D8%A3%D8%B3%D8%A7%D8%A9-%D8%B9%D8%A7%D9%85%D9%84%D8%A7%D8%AA-%D8%A5%D8%AB%D9%8A%D9%88%D8%A8%D9%8A%D8%A7%D8%AA-%D8%AA%D8%B1%D9%83%D9%86-%D8%B9%D9%84%D9%89-%D8%A7%D9%84%D8%B1%D8%B5%D9%8A%D9%81-%D9%81%D9%8A-%D9%84%D8%A8%D9%86%D8%A7%D9%86-1 [Accessed 13/6/2020]
• “Thousands of women are trapped in Lebanon. They risk jail time to leave”, Tamara Qiblawi, CNN, https://edition.cnn.com/interactive/2020/02/world/lebanon-domestic-workers-cnnphotos/index.html [Accessed 28/6/2020]
• “Information Guide for Migrant Domestic Workers in Lebanon”, Ministry of Labour Republic of Lebanon, https://www.labor.gov.lb/Temp/Files/00243f80-7141-4535-ad2f-bfd2f248413b.pdf [Accessed 28/6/2020]
• “Slavery and suicide: Plight of migrant maids in Lebanon made more stark by pandemic”, Info Migrants, Emma Wallis, https://www.infomigrants.net/en/post/25140/slavery-and-suicide-plight-of-migrant-maids-in-lebanon-made-more-stark-by-pandemic [Accessed 29/ 6/2020]
- “END KAFALA: JUSTICE FOR MIGRANT DOMESTIC WORKERS IN LEBANON”, Amnesty International, 2019.
- Clause 8: The First Party shall pledge to meet the requirements and conditions of decent work and fulfil the Second Party’s needs, including food, clothing and accommodations with which his/her dignity and right to privacy are respected.
Clause 10: The First Party shall pledge to obtain a work permit and authorization of residence for the Second Party in due form at his/her own and full expense. He/she shall also pledge to renew them as long as the Second Party works for him/her.
- Stated in the preamble of the Lebanese Constitution (introduced by the constitutional law of September 21, 1990), section B “[…] Lebanon is also a founding and active member of the United Nations Organization and abides by its covenants and by the Universal Declaration of Human Rights. The Government shall embody these principles in all fields and areas without exception.”Stated in the preamble of the Lebanese Constitution (introduced by the constitutional law of September 21, 1990), section B “[…] Lebanon is also a founding and active member of the United Nations Organization and abides by its covenants and by the Universal Declaration of Human Rights. The Government shall embody these principles in all fields and areas without exception.”
- Clause 11: The First Party shall fix the working hours for the Second Party at an average of ten (10) nonconsecutive hours a day at most, including at least eight (8) continuous hours of rest at night.
Clause 12: The First Party shall pledge to grant the Second Party a period of weekly rest of not less than twenty four (24) continuous hours, the conditions of the use of which shall be defined by agreement between both Parties. The Second Party shall also be entitled to benefit from an annual leave of a period of (6) six days. Both Parties shall define its timing and the conditions of its use.