By Annisa Essack

21:03:2021

The Nizam Al Kafala or sponsorship system is a legal framework defining the relationship between migrant workers and their employers in Jordan, Lebanon, and all Arab Gulf states except Iraq. It was created to supply cheap, plentiful labour in an era of booming economic growth, and its defenders argue that it benefits local businesses and helps drive development.

However, the system is highly controversial as it has been called out for the exploitation it fosters. Due to a lack of regulations and protections for migrant workers’ rights, this often results in low wages, poor working conditions, and employee abuse. Racial discrimination and gender-based violence are endemic.

The preparation for the 2022 FIFA World Cup in Qatar and the Coronavirus pandemic,  exposed the kafala systems flaws and gave rise to global anti-racism protests. However, the future of reform efforts remains unclear.

How does kafala work

Under the kafala system, the State allows local companies and individuals sponsorship permits employing foreign workers. In Bahrain, though, a Government agency, rather than the employer is the kafeel (worker’s sponsor).

The kafeel is responsible for the travel expenses and housing of the employee, usually in dorm-like accommodations or in the case of domestic workers, within the sponsors home. Most sponsors choose to use a private recruitment agency, in the country of origin, to hire an individual as this makes facilitation and entry into the host country less tedious.

The system falls under the jurisdiction of the Interior Ministries and not the Labour Ministries, leaving workers without protection under the host country’s labour laws. This leaves workers vulnerable to exploitation and denies them rights, such as the ability to enter a labour dispute process or join a union. 

As workers’ employment and residency visas are linked and only the sponsor can renew or terminate them, the system allows for private citizens rather than the State to have full control over workers’ legal status, thus creating a situation that sponsors can exploit.

Workers need their sponsor’s permission to transfer to other jobs, to end employment and to either enter or exit the host country. Workers who leave the workplace without the permission of the Kafeel, often have their contracts terminated as this is an offence and could also lead to potential imprisonment or deportation. This is the case, even if the worker is feeling from abuse.

Workers have little recourse in the face of exploitation, and many experts argue that the system facilitates modern slavery.

In August 2020, Qatar’s Ministry of Administrative Development, Labour and Social Affairs (MADLSA) made the landmark announcement that there would be a series of labour reforms by the country whose treatment of migrant workers and its human rights record has been under the spotlight.

Qatar scrapped a rule requiring employers’ consent to change jobs and said it would also implement a basic monthly minimum wage of 1,000 Qatar riyals or $274.

In addition to the minimum wage, the ministry also announced the provision of 500 riyals or $137 for accommodation and 300 riyals or $82.20 for food if those expenses are not provided as part of the contract.

The new laws were welcomed by the International Labour Organization (ILO). Sharan Burrow, general secretary of the International Trade Union Confederation, described the development as “a new dawn for migrant workers in Qatar to have a fair system, to end the kafala system and normalise contracts with appropriate provisions”.

Saudi Arabia, in November 2020 also announced that it will ease foreign workers’ contractual restrictions, including the freedom to change jobs. The changes were to take effect in March 2021 and would include foreign workers’ right to leave the country without employers’ permission.

The kingdom’s deputy minister for human resources, Abdullah bin Nasser Abuthunain, said that the aim is to improve Saudi Arabia’s labour market attractiveness. The reforms are part of a broader plan known as Vision 2030 spearheaded by Crown Prince Mohammed bin Salman to make the kingdom more attractive to foreign investors, expand the private sector and diversify the kingdom’s oil-dependent economy.

The new so-called “Labour Relation Initiative” will affect approximately 10 million foreign workers in the kingdom, about a third of Saudi Arabia’s total population.

However, colossal gaps remain as the reforms exclude 4 million women and men working as domestic workers, farmers, gardeners, drivers, and security guards, or those on short-term visas. Workers in these sectors are among the most at risk from modern slavery and other labour exploitation.

All migrant workers will still need to seek permission from the Ministry of Human Resources and Social Development to leave or enter the country and can only transfer to another job after a year of employment or at the end of their contract.

Thus, these new laws simply do not address the root of the problem. What would Saudi Arabia need to do to respect its obligations under international human rights and labour rights conventions and standards? Here is a list of concrete steps:

• All category of workers should be allowed to exercise their right to freely change employer and leave the country as and when required.
• Change the law regarding absconding from Saudi and instead replace with protections against retaliation from employers for workers who register grievances about their treatment or seek to change jobs or leave the country.
• The ending of racial discrimination of migrant workers by providing employee health and other protections and benefits to all women, men and children without distinction exclusion restriction or preference based on race, colour, descent, national and ethnic origin gender, or sexuality.
• To ensure that migrant workers are paid the wages and other benefits owed to them, including the women and men who are longer based in the country.
• Increase efforts to raise workers awareness of their rights and avenues for support and redress, including with respect to labour disputes and access to health care.
• Recognise migrant workers’ right to join and form a trade union and collectively bargain through the passage of legislation.
• Provide long-term migrant workers with a path to seek permanent residency and citizenship if they so choose.
• Saudi authorities still have a long way to go. For these changes to the labour laws to be effective, they must open a path to further reform. Otherwise, they will have little impact on the rights and livelihoods of millions of migrant workers in Saudi Arabia.