STATE PARTY EXAMINATION OF NEPAL s INITIAL OPSC REPORT

Transcription

1 STATE PARTY EXAMINATION OF NEPAL s INITIAL OPSC REPORT 60th SESSION OF THE COMMITTEE ON THE RIGHTS OF THE CHILD 29 May 15 June 2012 Contents Opening Comments... 1 General Measures of Implementation... 2 Prevention... 6 Prohibition and Related Matters... 8 Protection of the Rights of Victims... 9 Concluding Remarks Nepal ratified the Optional Protocol to the Convention on the Rights of the Child on the Sale of Children, Child Prostitution and Child Pornography (OPSC) on 20 January On 4 June 2012, the Committee on the Rights of the Child (the Committee) examined the initial OPSC report of Nepal. Opening Comments The delegation was led by Mr Balananda Paudel, Secretary of the Ministry of Women, Children and Social Welfare. He was supported by a small delegation, including the Secretary of the Office of the Prime Minister and Council of Ministers and two other representatives from the Ministry of Women, Children and Social Welfare, as well as three representatives from the Permanent Mission of Nepal to the United Nations and other International Offices in Geneva. Mr Paudel gave a detailed opening statement, in which he reiterated the Nepali government s commitment to the rights of the child and noted that the harmonisation of Nepali law and practice with regional and international instruments remained a priority. A new constitution had been adopted in 2007, which included the first explicit mention of child rights in the constitutional history of the country, underpinning the fact that the fulfilment of child rights is fundamental to the wellbeing of children in Nepal and to society as a whole. The head of delegation updated the Committee about new laws that had been promulgated since the submission of the State report, including those that aimed to safeguard children s interests, deter violence against them and ensure help for those in need. Other general legislation included special focus on children, such as the Human Trafficking and Control Act (2007), which extended care to the child victim of trafficking. Similarly, the Penal Code set out heavier sanctions for crimes perpetrated against children. In terms of prevention, the government had developed the National Policy on Children 2012, which aimed at reducing the vulnerability of children and at creating an environment where all children could fully enjoy their rights. The government had reviewed the National Plan of Action 1

2 for Children 2004/5 to 2014/15 to encompass emerging issues and to ensure that law and policy were translated into practical measures in a comprehensive manner. Mr Paudel acknowledged the challenges that his government faced in fully implementing its obligations under the OPSC but assured the Committee that it was coordinating efforts both at central level and among the 75 districts of the country. He also noted that non-governmental organisations (NGOs) and other civil society actors were vital partners in the implementation of laws and policies, and in particular for the administration of child helplines and the delivery of some services to children. The Country Rapporteur, Ms Lee, welcomed the delegation and thanked the representatives for the State report, which she noted was comprehensive and provided frank analysis of the achievements and challenges to date. She noted that in the last ten years, Nepal had been through a significant period of change with the end of a ten-year armed, as well as the dissolve of the monarchy in 2006 and the adoption of a comprehensive peace process in November The 2007 Constitution had been a notable achievement; however, Ms Lee was concerned by reports that the Constitutional Assembly had been dissolved at the end of May She asked whether cabinet had also been dissolved and what the impact on the development of the new constitution and other legislation, including the children s act, would be. Amidst the political developments at the time of the review, Ms Lee expressed the Committee s appreciation for the presence of the delegation. She welcomed the ratification of both optional protocols to the CRC and stated that the initial report on the Optional Protocol on Children Involved in Armed Conflict (OPAC) was also due. Furthermore, the ratification of the Convention on Transnational Organised Crime, as well as various ILO conventions, the optional protocol to CEDAW and several ASEAN conventions, were welcomed and presented a broad legal framework from which to create a comprehensive child protection system. Ms Lee asked about the government s intention to ratify the Palermo Protocol to Prevent, Suppress and Punish Trafficking in Persons Especially Women and Children. All of these would help the government in its efforts to protect children from especially marginalised and disadvantaged families from exploitation and abuse. At the time of the review, poverty had declined overall among children in Nepal, although it remained the poorest country in South Asia and was ranked the twelfth poorest country in the world. Furthermore, Nepal was ranked 146 th on the Transparency International Corruption Index. Corruption had diminished resources for local programmes as funds had been misused particularly at local government levels. Among the general population there persisted low literacy rates and a lack of knowledge and child and human rights. Finally, Ms Lee expressed the view that the two main challenges that impeded the full implementation of the OPSC were poverty and corruption. General Measures of Implementation Legislation The Committee asked about the status of international treaties as the domestic legal system did not seem to be strictly monist. The Committee queried what it considered might be the possibility to limit the rights enshrined in ratified international instruments, and asked about the process for transposing international law into the domestic legal system. Specifically, the Committee was interested in how the new Child Act would incorporate the provisions of the 2

3 OPSC, and how corresponding sanctions for offences would be explicitly incorporated in the penal code. The 1992 Children s Act did not define immoral acts or professions, which needed to be clarified. The Committee noted that current legislation focused on trafficking and not sale. The delegation explained that the Constitution was in place and functioning and that while the Constitutional Assembly had been dissolved, the constitution, the cabinet and the government were still functioning and were legally backed. The government had recently approved the new Children s Policy (May 2012) and on that basis, a new Child Act had been drafted. Concerning the domestication of law, the government had enacted the Nepal Treat Act in Section 9(1) stated that if any provision of a treaty was not consistent with Nepalese domestic legislation, then it would not apply. Such decisions were reached by the Supreme Court. In order to transpose provisions of an international treaty into domestic law, a corresponding law had to be drafted and adopted by the State. The provisions of the OPSC had been enshrined in the Child Rights Act. To make this legislation fully consistent, a bill had been finalised and the Council of Ministers had submitted it to Parliament. All provisions of the OPSC had been incorporated and the bill was awaiting adoption and subsequently enactment. The Committee asked how sale of a child had been defined in law and what corresponding provisions had been written into the penal code. The delegation responded that the new draft bill that would amend the Child Rights Act was in Nepali and could not be shared; however, the delegation assured the Committee that it was fully in line with the CRC and the OPSC. Despite this achievement, the Committee was concerned about the explicit criminalisation of the offences set out in the OPSC, noting that they should be included in the criminal code and not in the Child Rights Act. The delegation noted that the government had not been able to mention OPSC-related crimes explicitly in the Child Rights Act, but that a new law would criminalise the acts under the OPSC. The Committed noted that the children s act did define the offences under the OPSC, but only very generally, and considered that it did not include full definitions in line with the OPSC. The delegation further noted that the government had faced challenges in bringing domestic legislation, including the penal code, in line with the OPSC. The new law could still be improved before submission to the Parliament and the Council of Ministers would be happy to consider the Committee s recommendations in this regard. The Committee asked about the law on child protection, especially for those whose rights had been violated. In particular, it queried whether the 1970 Public Offences and Control Act, which criminalised children for involvement in pornography and prostitution, was still in effect. Noting that child victims of such offences were often still treated as offenders themselves, the Committee was concerned about the treatment and care of child victims and how their treatment as such had been captured in law. The delegation assured the Committee that if the 1970 act was indeed found to be inconsistent with the OPSC, it would be reviewed and harmonised. Definition of the Child The Committee asked how the child was defined in domestic law. The State report indicated that there were different definitions in different contexts, for example that children were those under the age of 16. The Committee asked whether all children under 18 were defined accordingly. 3

4 The delegation noted that one of the fundamental changes was that all children would be covered by the new Act, up to the age of 18 years. The Act contained 96 sections and would eventually be translated into English and shared with the Committee. Criminal Justice The Committee asked whether the juvenile justice mechanism was in line with the CRC and the OPSC. The delegation explained that the law set out how cases involving juveniles should be tried, including the range of professionals that should be involved such as social workers. In the reporting period, 320 cases of child pornography had been reported to police, of which 118 cases had been filed in the juvenile courts. The delegation reported that children in conflict with the law were housed in juvenile correction homes. Four currently existed in the country and three were under construction. At present, there were 580 children living in the homes, of which 22 were girls. NGOs supported in legal representation and handling of cases, as well as the provision of other services for the juvenile offenders, such as education, counselling and other rehabilitative services. The response to such children different depending on the age of the child: those under 14, 14 to 16, and 16 to 18 years of age. The Committee asked if it was known what type of offences the 22 girls had been convicted of, and in particular whether it had been for involvement in pornography and/or prostitution, in which case they should be treated as victims not perpetrators of a crime. The delegation stated that it did not know the details of the particular cases. Dissemination The Committee asked about the State s dissemination strategy as a means of raising awareness about the OPSC as a means of preventing related offences. The Committee noted that the State party report outlined several campaigns that had been carried out already involving government bodies, as well as some civil society and community-based organisations. The Committee was concerned about the quality of the various campaigns and asked how they related to one another to ensure the effectiveness of efforts. Furthermore, the Committee enquired how the crimes defined in the OPSC would be brought to the attention of the society in general and in particular isolated communities where high levels of illiteracy persisted once enshrined in domestic law, for example through translation into Nepalese and other local languages and incorporated into national school curricula and training programmes for professionals working with children. Data Collection The Committee was concerned about the lack of a national comprehensive data collection system and what plans the government had in mind to develop one. It noted that integrated data collection was key to being able to respond effectively and appropriately to issues facing children and for victims to in turn be able to access services. The delegation explained that the Central Child Welfare Committee under the Ministry of Women, Children and Social Welfare was working to develop this system. Data was compiled from various sources including police, the Attorney General s Office and courts, as well as the Education and Health Information Systems. Surveys such as on living standards were conducted every five years and results were included in the data system. It was added that the system was being improved and updated to ensure broad coverage and the availability of disaggregated data. 4

5 The Committee expressed concern that this role had been appointed to the Ministry of Women, Children and Social Welfare since the scope of the OPSC went beyond that ministry s mandate. A comprehensive national data collection system should not be the responsibility of one particular ministry, but rather should be centralised within a national data collection system. The delegation noted this input from the Committee, adding that it relied on a well-structured reporting system that ultimately fed into the National Planning Commission; this Commission was responsible for planning and policy based on the reports of all ministries taken together. Local governments also used data to respond to the needs of their communities. The delegation explained that there was a national helpline for victims of OPSC-related offences, which was jointly run by government and NGOs. The helpline did not coordinate specific responses, but referred cases to police where appropriate. Data collected through the helpline helped the government to prioritise its interventions. Budget Allocation The Committee was concerned that the Ministry of Women, Children and Social Welfare received one of the smallest budgets of all the government ministries. The Child Protection Unit received an even smaller budget, at only USD50,0000 per annum; USD2,250 for the Rapporteur on Trafficking; and USD700 per annum for the district child rights offices. To the Committee s mind, it seemed that this was a root cause of the fragmented child protection system and of the fact that many child protection programmes were run by NGOs. The Committed enquired about the government s plan to assume responsibility for the child protection system. Implementation and Coordination The Committee acknowledged the extensive number of departments, plans and committees working child rights and questioned what the mandates were of the various committees, as well as how they were all coordinated to ensure a coherent approach to fulfilling the State s child rights obligations. The Committee welcomed the National Plan of Action for Children, which had been recently revised, and asked what targets and indicators had been established to measure progress towards the objectives concerning protection of children from abuse, exploitation and violence. The Committee also asked how this Plan of Action related to other plans such as for exploitation of women, the Master Plan on Child Labour and the Plan on Violence against Children. The delegation described coordination as a challenge, given the many institutions working the protection of child rights. The Ministry of Women, Children and Social Welfare took the lead at the central level and chaired the Child Welfare Board, which included representatives of various ministries as well as NGOs and other civil society partners. At the district level, there were local child welfare boards and child rights offices. The district level boards reported to the central Child Welfare Board, which in turn made recommendations to ministries, for example to improve monitoring, as well as how to respond effectively to recover and repatriate victims of abroad. Concerning the implementation of various plans of action, the delegation explained that coordination mechanisms were established during the drafting process. Furthermore, a corresponding three year periodic plan and an expenditure framework were also prepared for each plan to ensure effective implementation. 5

6 The Committee was concerned that the different issues addressed under the OPSC had been grouped by the government under trafficking, which was not accurate and was detrimental to the implementation of the protocol. The Committee asked the government to differentiate between its strategy on trafficking and the specific approach to the offences under the OPSC. Independent Monitoring Mechanism The Committee asked about the National Human Rights Commission, which had been granted A status by the International Coordinating Committee (ICC) in The Committee asked what progress had been made since its establishment in 2005 in terms of accessibility to all children, as well as its structure. The Committee asked whether there was a department dedicated to children s rights issues and whether the Commission received complaints from children. If complaints were received, the Committee was interested to know about the number of complaints received as well as the training of staff and how complaints were handled. Cooperation with Civil Society The Committee was concerned about the over-reliance of the State on NGOs for service provision, particularly in child protection. It asked whether the rehabilitation centres for child victims of sale, prostitution and pornography were monitored and whether the NGOs received any government financing for their running. The delegation explained that large NGOs were involved in the delivery of child protection services. Victims required a multi-sectoral response that the government alone did not have the capacity to provide. The government did operate four rehabilitation centres for child victims with its own resources. The government monitored the quality of care delivered in centres run by NGOs by conducting field visits and reporting to the ministry. If children were found to be victims of illegal activity, the police and other law enforcement authorities were alerted. The delegation provided the example of a case in North Kathmandu where the director of a child home was reported to have been involved in perpetrating crimes of a sexual nature against children. The police followed up on this and consulted with the children. A press release was subsequently issued and the suspect was arrested. The children had since been placed in other child homes. This was testament to the fact that the government was monitoring the quality of care for children and that offences by carers did not go unpunished. Prevention Birth Registration The Committee asked about the national birth registration system. The Committee expressed concern that reportedly, children born to single mothers, or to mothers married to foreigners, refugees or stateless persons, did not enjoy equal access to birth registration and to Nepalese nationality. The Committee asked what the government planned to do to resolve this issue. Nationality The Committee noted that the new draft constitution established that a child would not enjoy Nepalese citizenship if the parents themselves were not Nepalese. A recommendation to this effect, made to Nepal under the Universal Periodic Review, had not been accepted. The Committee asked how this de jure statelessness would be addressed, since it made the concerned children more vulnerable to sale, exploitation and other violations of their rights. Adoption 6

7 The Committee noted that Nepal had signed the Hague Convention on Inter-Country Adoption in 2009, but that it had not yet ratified. It asked what plans were in place to ratify. The Committee asked whether various mechanisms required to ensure safe and legal adoption of children, such as surveillance and monitoring of quality adoptive care; correct documentation of adoption process; full verification of adoptive parents; and the illegal movement of children over borders, were in place. The Committee asked about the status of the moratorium on international adoptions and the improper placement of children in orphanages by low-income parents because of the education provided there. The Committee was concerned that the placement of children in orphanages made them more vulnerable to illegal adoptions, which were defined as the sale of the child. The Committee asked what measures were being taken to address this phenomenon, as well as the steps being taken to control informal domestic adoptions. Finally in this regard, the Committee stated that the punishments set out in the penal code should be such that they serve as a deterrent and enable the government to regulate adoption and to counter the phenomena. The delegation acknowledged that the government had been focused recently on the re-writing of the constitution and concluding the peace process, and that it would soon move to updating and improving legislation, including through the ratification of certain international instruments. The government had already considered the necessary budget and resources required to implement the Hague Convention once ratified. The delegation explained that there had been problems with illegal inter-country adoptions up to 2009, but that since the new civil code covered the adoption of boys and girls, the practice had come under control. Nepal had enacted guidelines on international that included five stages of consideration: the right of the child to remain with his or her biological parents; care by blood relatives as next of kin; foster care in-country; care by the State; and international adoption as a last resort. The delegation assured the Committee that this was a transparent system that was functioning and that the sale of children was not happening given the engagement of the central authority. The Committee asked how many international adoptions had been approved since the lifting of the moratorium in 2009, and whether the adoption process could be suspended if there was a violation of the process. The Committee also asked what means the government had to follow up on the wellbeing of the child once adopted, and whether there were Placement Committees that matched the child with the adoptive parents. These mechanisms would help to prevent sale and other rights violations of children. The delegation confirmed that Placement Committees did exist within the Ministry of Law and Justice. Once the paperwork was received and all the criteria of the adoption application had been satisfied, the Ministry of Law and Justice would pass the file to the Placement Committee for the matching of a child with the adoptive parents. The Committee noted that upon ratification of the Hague Convention, the 2009 civil code would have to be amended to be in full compliance with the State s corresponding international obligations. Other Preventive Mechanisms The Committee was concerned about the prevention of offences under the OPSC being committed against children, since many root causes of the phenomena were present in Nepal, such as poverty, conflict, rapid urbanisation and unsafe migration. The Committee asked whether 7

8 the village development committees could take part in the design of preventive programmes, for example through women s groups. Prohibition and Related Matters Prohibition The Committee asked the delegation about how the Master Plan for Child Labour would be enshrined in law, since the criminal and penal codes did not define forced child labour as sale of children. Thus, investigators of work place settings reportedly did not link forced labour with sale of children. Similarly, the Committee was concerned that the 2007 Human Trafficking and Control Act did not account for recovery and reintegration of survivors of trafficking. Furthermore, it did not criminalise the role of the intermediary. The Committee asked whether someone who facilitated the trafficking or prostitution of infants or older children could be prosecuted, since the State report and the Written Replies did not clearly explain how this had been captured in law. The Committee also asked whether the possession of pornographic images of a child was punishable by law. Traditional Practices The Committee was concerned about the continuation of harmful traditional practices. Although some had been prohibited by law, violations of the rights of women and girls persisted, for example through dowry, as well as forced and early marriage. Sex Tourism The Committee noted that eight paedophiles had been arrested between 1995 and 2001 and asked whether there was any new data on this trend. The Committee asked for statistics on how many persons had been prosecuted, as well as how many had subsequently been put on trial and convicted. It was noted that an inter-ministerial Committee had been established in 2005 to tackle the child sex tourism phenomenon. The Committee asked what its function was, as well as how the government reacted to its recommendations. Finally, the Committee noted that it a draft code of conduct had been prepared for the hotel industry and questioned whether this had been adopted and, if so, whether it had been disseminated widely. Extraterritorial Jurisdiction The Committee asked about the legal competence of domestic courts and whether their competence could be extended for crimes committed by a Nepalese national or resident outside the country, as prescribed in the OPSC. The Committee also sought an explanation of whether the court s jurisdiction could be extended over cases of Nepalese victims of child sale, prostitution and/or pornography. The delegation noted that the Supreme Court could invoke the Human Trafficking Control Act (2007) to extend its jurisdiction to cover a case in which anyone from another country had carried out an illegal act as set out in OPSC against a Nepalese citizen. Sale of Organs The Committee stated that according to information received, there were many cases of smuggling of children s organs, particularly kidneys, in some border districts. The Committee asked for more information on this. 8

9 Protection of the Rights of Victims Assistance to Victims The Committee asked about protection of victims of sale, prostitution and pornography and particularly about support for social reintegration. Where children are cared for in family settings, it was asked what monitoring mechanisms were in place to ensure quality care. The Committee also enquired about the mechanisms in place to identify child victims of sale, prostitution and pornography, such as child beggars or those in the care of foreigners, and how these children could access legal protection. The Committee asked for data on the number of perpetrators penalised in relation to the number of complaints or cases received. If perpetrators were convicted, the Committee was interested to know what measures were in place to minimise the negative effects of legal proceedings on children and how these proceedings are followed up on, especially in cases where parents and/or other family members were involved in the sale, prostitution and/or pornographic exposure of the child. Regarding training, the Committee asked how police, health workers and other professionals working on the front lines, were trained to identify cases, cope with the sensitive nature of cases and ensure a holistic response to assist victims in their recovery and reintegration. The Committee asked what was being done to remove children from cabins, bars and restaurants and provide assistance to them in a child-friendly and gender-sensitive manner. The delegation reported that the training of professionals does take place. Regarding case handling, seven crisis centres existed, and eight more were being built, where child victims could access a range of services such as psychosocial counselling, medical attention, guardianship and protection, as well as compensation to victims. The 2012 Child Act stipulated that the court could order the State s Child Victim Fund to provide the child with up to 75 per cent of the fine imposed on the perpetrator, if he or she was unable to pay. Helpline for Victims The Committee welcomed the establishment of a helpline for child victims. It asked whether police were responsible for interventions in response to claims received by the helpline, and whether other professionals such as social and health workers were also alerted and engaged. The delegation explained that police and rehabilitation services counsellors, psychologists, health and social workers were engaged in the response to the child victim, according to the State s directives, which set out the roles of rehabilitation services and justice agencies. Child-Friendly Justice The Committee asked what measures had been taken to address how the rights of child victims and witnesses could best be upheld during criminal proceedings. The Committee was particularly concerned about how children from low-income and other marginalised communities were reached and engaged. The Committee was also keen to know how the child was heard in criminal proceedings. The delegation explained that a child s statement was asked for only once and the child could not re-examine. Further work was being carried out to improve the child-friendly conditions under which testimonies and statements were taken. 9

10 Concluding Remarks Ms Lee thanked the delegation for its attendance at the meeting, but regretted that many of the questions posed by the Committee had remained unanswered. Despite the on-going political change in the country, Ms Lee hoped that the fulfilment of child rights would not be impeded. In this regard, Ms Lee called for the timely ratification of the Hague Convention on Inter-Country Adoption, as well as the submission of the initial State report on OPAC. A comprehensive data collection system and a comprehensive law that fully set out crimes under the OPSC were seen as critical to the advancement of child rights in Nepal in relation to the OPSC. On two particular points, Ms Lee expressed concern about the rights of stateless children and called on the State to deal effectively with its separate obligations on extraterritorial jurisdiction and extradition, which should not be confused. Extradition and extraterritorial jurisdiction are separate issues, don t mix them up. The delegation thanked the Committee for the dialogue. The Child Act had been a significant step forward for the government and the State looked forward to receiving the concluding observations as a means of charting the way forward. 10