How do you Solve a Problem Like Migrant Workers?

Migrant workers from far-flung and often less economically developed countries come to the oil-rich Kingdom of Kuwait in search wealth and prosperity. However, the reality is often far removed from this ideal; so what exactly is happening on the ground?

The concept of citizenship relates to both a person’s legal status and their official rights and duties. Migrant workers in the Gulf States are refused citizenship, which can result in severe legal restrictions and human rights violations. Yet in the oil-rich Gulf state of Kuwait, one of the largest importers of foreign workers in the Gulf, 50% of the total population consists of migrant workers1. Marxist theories that capitalism have created a surplus in population2 can help to explain the fluctuation of people to the Gulf in search of employment opportunities which they do not have access to in their home countries. Furthermore, the Kuwaiti state has a codified constitution, and it is clear that safeguards put in place to help those migrant workers without citizenship are simply flouted by the employers, recruitment agencies, and the state authorities themselves. None of the Gulf Cooperation Council states, including Kuwait, have signed and ratified the United Nations Convention on the Rights of all Migrant Workers and Their Families, which was created in 1990.

Kuwait is ruled by the al-Sabah family dynasty, in which the Emir chooses the Prime Minister who then selects the government; meaning that those who are within these networks have power. Consequently, migrant workers are left out of the system of citizenship completely. The concept of a ‘rentier’ state; a state that functions economically on foreign rents, such as those who profit from oil income, who are autonomous from their own people, does not need to abide by the rule of ‘no taxation without representation’ as they do not rely on taxation to function financially3. The Kuwaiti state does not need to gain the migrants’ population’s consent in order to govern; and the state has even less interest in attempting to placate non-citizens such as migrant workers.

The legal status of citizenship within Kuwait has purposefully left migrant workers without adequate protections. The Kuwaiti Constitution has deemed that there should be justice, liberty and equality between citizens; thus not including migrant workers who are not considered to be citizens4. This suggests that legally migrant workers cannot ask for a fair justice system, freedom or a equal status. However, the constitution also emphasises equality and the Islamic principle of ‘human dignity’ for all, regardless of race, origin, language or religion5. It is clear that the government does not adhere to this principle of human dignity for non-citizens. Positive rights and duties that support citizens are not available to migrant workers. These include free education, healthcare, housing and social rights6. Therefore, within the constitution and laws of Kuwait, migrant workers are not entitled to basic rights and liberties, which have been set out within the Universal Declaration of Human Rights of 1947. This exclusion of migrant workers in Kuwait from many of the legal rights linked to citizenship can result in many human rights abuses, including physical consequences.

The infamous Gulf-wide kafala system of sponsorship enacted in Kuwait in the 1959 Alien Residence Law, has solidified the discriminatory legal status held by migrant workers in Kuwait7. This system has ensured that only citizens from other Gulf Cooperation Council countries, or those employed by these citizens through a kafeel, a sponsor, are allowed to reside in Kuwait8. This has created an economic and social dependence of the migrant worker to their sponsor, and the agency through which they were placed in Kuwait. If they were acknowledged as citizens then they would not need to be dependant on any employer, as they would have the autonomous freedom of choice for employment. The kafala system, as entrenched in law, is specifically designed to cease freedom of movement for migrant workers; they cannot leave their place of work in search of new employment and risk many actualised disadvantages. This is particularly enhanced by the confiscation of passports by employers, some suggest at a rate of 80 to 90%, despite this practice being outlawed in 20079. Consequently, the legal status of migrant workers, their lack of citizenship, and their need to be tied to a single Kuwaiti citizen as their employer through the kafala system, has restricted their freedom of movement as well as their ability to seek new employment within the country.

The migrant domestic workers employed within Kuwaiti homes, (who number almost 660,000), have a lower legal status than all other migrant workers in Kuwait, despite both groups sharing a lack of citizenship, due to their discriminatory and unfair official standing10. The 1964 Labour Law has excluded all domestic workers from protections offered by Kuwaiti labour laws, such as the minimum wage, paid sick leave and paid holidays, despite Kuwait ratifying in 1966 the International Labour Organisation’s (ILO) Convention No. 111 relating to Discrimination in Respect of Employment and Occupation11. Multiple cases of abuse of domestic workers have been highlighted both in the media and by non-governmental organisations (NGOs), due to both their lack of citizenship that would offer justice, liberty and equality, and their exclusion from labour laws that protect migrant workers in other sectors. A further complication is the close proximity that the worker has to the employer; they are tied to their employers, which can often lead to claims of abuse, as highlighted by one ambassador, who wished to remain anonymous, from one labour-sending country whose embassy received 950 allegations of sexual assault in 200912. The police and authorities face complaints of physical, mental and sexual assault daily, yet instead of applying Kuwait’s labour law and criminal law, the workers are often seen as part of domestic disputes outside of their jurisdiction. However, these workers should arguably be treated under the same laws as citizens. For example, a recent case whereby an Ethiopian maid was murdered by her employer in Kuwait13, should not be treated differently depending on whether the victim is considered to be a citizen or a migrant worker.

In addition to the consequences relating to an individual’s legal status, there are a number of human rights concerns that relate to migrant workers’ lack of citizenship. These are directly related to their legal status because with the adoption of citizenship these abuses would not be allowed to occur. Firstly, deportation is a major issue facing migrant workers without citizenship, an issue that Kuwaitis do not have to endure. The constitution states that no Kuwaiti can be deported from the Gulf state14. This is clearly linked to the 1959 Residency Law in which any person may be deported due to criminal convictions, if deemed a security or moral threat or if the individual does not have a means of income15. The imprecise definition within the law of who can be deemed a moral or security threat and thus susceptible to deportation, leaves those without citizenship at the mercy of their employers. Many migrant workers have described threats to report them to the authorities as being based on unfounded accusations. This leads to many migrant workers developing a fear of being deported from Kuwait, and consequently losing a key source of income for their families. Many abused migrant workers without citizenship do not act against the state or their employers by attempting to claim their rights16.

Kuwait’s justice system does little to protect the rights of non-citizen workers. The Kuwaiti constitution itself has outlined that no person, whether a citizen or not, should be arrested or detained unlawfully17. This would suggest that regardless of a person’s citizenship; whether a Kuwaiti or not, they should be treated equally in the eyes of the justice system. However, state authorities have not abided by this law and the government itself has done very little to enforce it. Human Rights Watch has observed that when a migrant worker reports an issue to a police officer, they are very often unsympathetic18. The police officer will often ignore a worker’s rights or tell them why they are being questioned. Similar issues have been reported across the Gulf, especially in Saudi Arabia, where embassies have grievances about not being able to defend their citizens, often hearing about legal cases and subsequent convictions and executions through the media or state officials19.

Migrant labourers, owing to their absence of citizenship, face issues relating to their accommodation and freedom of movement, which can also be categorised as human rights concerns. Firstly, confinement to an employee’s quarters and camps has created a lack of freedom of movement for workers. This is directly related to the kafala system; they are tied to their employers who have their passports and therefore risk losing their employment if they try to leave the area designated to them. The Kuwaiti constitution has attempted to tackle this issue, by stating that a person cannot be restricted in movement, although there is a limitation with the clause ‘except in accordance with the provisions of the law’20. This should be applicable to both citizen and non-citizen alike. Employers ignore this law and police aid this defiance by employing restrictive absconding laws in which a worker can be fined $2060 for trying to leave21. This has created an environment in which workers are exploited and tied to their accommodation for fear of being convicted of absconding; an issue which citizens who work in similar positions would not face as they would not be tied to their employer through the kafala system; they could freely move and choose employment.

Migrant workers have also been confronted with economic challenges. Whilst labour laws are applicable for non-domestic workers, they are often flouted where sponsors take advantage of a person’s lack of Kuwaiti citizenship. By highlighting the plight of Nepalese workers in Kuwait, we can understand how their Nepalese citizenship still functions to support them, whilst they lack Kuwaiti citizenship. Migrant workers to the Gulf make up a substantial part of Nepalese Gross National Product (GNP), a sum of 21.6% in 201022. Therefore these workers are crucial to Nepal and their Nepalese citizenship is invaluable. Consequently, the Nepalese government has secured an increase of 50% to their minimum wage, creating a raise to $216 per month, through negotiations with the Kuwaiti government23. Perhaps if these Nepalese workers had Kuwaiti dual citizenship, which under current Kuwaiti law is illegal, they would be subject to taxes and levies and therefore not be able to send parts of their income back to their families. Therefore, the lack of Kuwaiti citizenship is a double-edged sword for many; it creates an abnormally low wage in relation to Kuwaiti citizens, but on the other hand it has allowed some to collectively bargain for a higher wage, which in turn enables them to send more money back to their families. The Indian Ambassador to Qatar, another Gulf Cooperation Council member, spoke to Al Jazeera in 2009, and suggested that all labour-sending countries could work together to collectively bargain for their workers’ rights through the ILO and United Nations24.

Due to the lack of citizenship available to migrant workers, attempts within the Kuwaiti constitution and law to protect migrant workers, as legal resident aliens, from political, economic and social exploitation, have failed. The legal problems, such as the kafala system, the troubles for domestic workers in particular, and the lack of state-funded rights for migrant workers has created a hierarchy where migrant workers are considered almost sub-human, and not deserving of rights and aid. The scholar Timothy Mitchell has differentiated between four categories of migrant workers in relation to their status in the working Kuwaiti economy; whites, non-white foreigners, Arabs and ‘riffraff’25, I would go further to suggest a stratum even lower, unfortunately in the eyes of the Kuwaiti job market, consisting of domestic workers. These stratums are based on how the workers are perceived and how they are treated. Further abuses exist, such as the prejudicial justice system, deportations, economic inequalities and the restriction upon freedom of movement. These migrant workers have become subject to forced labour, despite Kuwait formally abolishing slavery relatively recently, in 1968. What constitutes forced labour in Kuwait is unclear and is deemed criminal except in cases ‘specified by law for national emergency and with just remuneration’. It is therefore evident that the migrant worker is often subject to forced labour, as they are not offered a choice as to where they work and they will be tied to abuse and discrimination, until the government reforms the kafala system; not in order to create citizenship for migrant workers but to give them an equal status to Kuwait citizens, as legal resident aliens.

Bibliography

L Anderson, ‘The State in the Middle East and North Africa’, Comparative Politics, Vol. 20, No.1, 1987, pp.1-18
Al Jazeera, Blood Sweat and Tears, 2009
(http://www.aljazeera.com/programmes/general/2007/08/2008525185333546126.html)
W Brown and J Saunders, Bad Dreams: Exploitation and Abuse of Migrant Workers in Saudi Arabia, Human Rights Watch, July 2004
M Gustafsson, ‘Migrant Workers of the Arab World’, Current Research on Peace and Violence, Vol.2, No.1, 1979, pp.38-52
P Motaparthy, Walls at Every Turn: Abuse of Migrant Domestic Workers through Kuwait’s Sponsorship System, Human Rights Watch, October 2010
R Kalush, (2011a, December 12) ‘Murder in Kuwait’, MidEastYouth, Retrieved from:
http://www.mideastyouth.com/2011/11/19/murder-in-kuwait
R Kalush, (2011b, December 5) ‘Nepal to Raise Salaries for its citizens in the Gulf’, Migrant Rights, Retrieved from: http://www.migrant-rights.org/2011/12/04/nepal-to-raise-salaries-for-its-citizens-in-the-gulf
A N Longva, ‘Keeping Migrant Workers in Check: The Kafala System in the Gulf’, MiddleEast Report: Trafficking and Transiting: New Perspectives on Labor Migration, No.211, 1999, pp. 20-22
A N Longva, ‘Citizenship in the Gulf States: Conceptualisation and Practice’, Citizenship and State in the Middle East: Approaches and Applications, edited by N A Butenschon, U Davis, M Hassassain, Syracuse University Press, New York, 2000
T Mitchell, ‘McJihad: Islam in the New World Order’, Social Text, Vol. 20, No. 4, 2002, pp. 1-18
G P Parolin, Citizenship in the Arab World: Kin, Religion and Nation-State, Amsterdam University Press, Amsterdam, 2009
Kuwaiti Constitution, Date Accessed: 10/12/2011 http://www.pm.gov.kw/constitution.asp
Office of Personnel Management of the US Government, 2000/2001, Multiple Citizenship, Date Accessed: 06/12/2011

1 Longva, ‘Citizenship in the Gulf States: Conceptualisation and Practice’, Citizenship and State in the Middle East: Approaches and Applications, edited by N A Butenschon, U Davis, M Hassassain, Syracuse University Press, New York, 2000, pp.28 return to main text
2 Gustafsson, ‘Migrant Workers of the Arab World’, Current Research on Peace and Violence, Vol.2, No.1, 1979, pp.38 return to main text
3 Anderson, ‘The State in the Middle East and North Africa’, Comparative Politics, Vol. 20, No.1, 1987, pp. 18 return to main text
4 Art. VII, Kuwaiti Constitution, Date Accessed: 10/12/2011 return to main text
5 Art, XXIX, C1.2, Kuwaiti Constitution, Date Accessed: 10/12/2011 return to main text
6 Longva, ‘Citizenship in the Gulf States: Conceptualisation and Practice’, 2000, pp.183 return to main text
7 Motaparthy, Walls at Every Turn: Abuse of Migrant Domestic Workers through Kuwait’s Sponsorship System, Human Rights Watch, October 2010 return to main text
8 Longva, ‘Citizenship in the Gulf States: Conceptualisation and Practice’, 2000, pp.28 return to main text
9 Motaparthy, Walls at Every Turn, October 2010 return to main text
10 Motaparthy, Walls at Every Turn, October 2010 return to main text
11 Motaparthy, Walls at Every Turn, October 2010 return to main text
12 Motaparthy, Walls at Every Turn, October 2010 return to main text
13 Kalush, (2011a, December 12) ‘Murder in Kuwait’, MidEastYouth, Date Accessed: 10/12/2011 return to main text
14 Art. XXVII, Kuwaiti Constitution, Date Accessed: 10/12/2011 return to main text
15 Longva, ‘Keeping Migrant Workers in Check: The Kafala System in the Gulf’, MiddleEast Report: Trafficking and Transiting: New Perspectives on Labor Migration, No.211, 1999, pp. 21 return to main text
16 Gustafsson, ‘Migrant Workers of the Arab World’, 1979, pp.49 return to main text
17 Art.XXXI, §.1, Kuwaiti Constitution, Date Accessed: 10/12/2011 return to main text
18 Motaparthy, Walls at Every Turn, October 2010 return to main text
19 Brown and J Saunders, Bad Dreams: Exploitation and Abuse of Migrant Workers in Saudi Arabia, Human Rights Watch, July 2004 return to main text
20 Art.XXXI, §.1, Kuwaiti Constitution, Date Accessed: 10/12/2011 return to main text
21 Motaparthy, Walls at Every Turn, October 2010 return to main text
22 Motaparthy, Walls at Every Turn, October 2010 return to main text
23 Kalush, (2011b, December 5) ‘Nepal to Raise Salaries for its citizens in the Gulf’, Migrant Rights, Date Accessed: 10/12/2011 return to main text
24 Al Jazeera, Blood Sweat and Tears, 2009 return to main text
25 Mitchell, ‘McJihad: Islam in the New World Order’, Social Text, Vol. 20, No. 4, 2002, pp.8 return to main text

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