Áine Healy
The kafala system in GCC member states
The ‘kafala’ system is understood today as both an administrative apparatus to regulate migrant workers through a ‘sponsorship’ system, as well as a brutal ‘employment’ position for Migrant Domestic Workers (MDWs) in the Gulf Cooperation Council (GCC) member countries (Bahrain, Kuwait, Oman, Qatar, Saudi Arabia and the United Arab Emirates) and in the Arab states of Jordan and Lebanon (Dermitzaki and Riewendt, 2020). The system has been compared to modern slavery by international human rights organisations due to the elements of servitude and practices similar to slavery outlined in the ‘UN Trafficking Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children’ (OHCHR, 2021). Working conditions are so poor that in 2017 Lebanon’s own intelligence agency estimated that two migrant workers on average die each week in Lebanon either from falling from buildings, suicide, or cases that are ruled to be suicide. The immigrant population of GCC countries accounts for ten percent of all immigrants globally, with a significant number coming from Ethiopia, Pakistan, Sri Lanka, Indonesia and Nepal. (Goethals, Bardwell, Bhacker and Ezzelarab, 2017). To illustrate the atrocities currently associated with the system, this essay will provide an account of ‘kafala’ by exploring its traditional meanings and by tracing the evolution of the concept over time. After illustrating the humanitarian and gender concerns that the system manifests, the concluding remarks will reinforce the kafala system’s interdependence with state border regimes in the contemporary setting.
The root of the word ‘كفل’ (‘kafal’) means to feed, support, vouch for, or warrant, and the term ‘kafala’ itself refers to sponsorship, guarantee and security (Wehr, 1994). Kafala, in its broadest application, refers to an obligation of a guarantor to the guaranteed (typically a vulnerable person), whereby the latter briefly works for the ‘guardian’ or effectuates a business transaction in exchange for the guarantor’s ‘guardianship’. However, current practices of kafala have been corrupted from its meaning in the traditional, customary sense. Instead, a loose interpretation of the term and its original meaning have been used as a justification for neoliberal frameworks of employment to meet the demands for cheap migrant labour in the GCC countries. This demand is so great that the proportion of non-nationals across the GCC countries outnumbers the national population, averaging 70.4 per cent of the total population and ranging from 56 to 93 per cent for countries individually (ILO, n.d). The United Nations Department of Economic Affairs estimates that these percentages correspond to about 35 million international migrants working in the GCC countries, Jordan, and Lebanon, of which 31 per cent are women (UNDESA, 2019).
Although men account for a considerable portion of kafala workers (just under 70 per cent of the labour-migration flow in), the concept of guardianship that the system draws from is more pertinent to the structural enforcement of patriarchy, most evident in the legislation in Qatar and Saudi Arabia surrounding ‘male guardianship’. This legislation is both inspired by the traditional meanings of guardianship outlined above, as well as patriarchal interpretations of the Qur’an that have regarded men as women’s ‘protectors’. As such, it stipulates a form of direct discrimination whereby unmarried women under the age of thirty cannot travel abroad, check into a hotel, attend events or bars, or apply for a job without a male guardian’s permission (Human Rights Watch, 2021). This legislation legitimizes employment that is based upon disproportionate power structures. Thus, it is unsurprising that over 173,000 MDWs comprise the kafala system in Qatar alone (Amnesty, 2020).
The legislation surrounding male guardianship has exploited kafala to the point that migrant workers are dependent solely on their employers for basic rights (such as residency paperwork, visa renewal, food and shelter, etc.). Despite having such limited basic rights, kafala workers are faced with passport confiscations and high recruitment fees. This systematic oppression seems unlikely to change given that, across GCC countries, legislation that could apply to the kafala system either does not exist or these countries have failed to legislate specifically on the uniquely exploitative aspects of the kafala system (World Report 2021: Events of 2020, 2021). Kafala is not specifically legislated for under labour law, and kafala-related cases are handled through the Ministry of Interior, the policing wing of the government in the GCC countries. This lack of legislation deprives workers of protection as they are left at the mercy of their employers, making it impossible for workers to lodge complaints without jeopardizing their legal status. In this manner, if MDWs encounter a problem at work, they must file complaints through the person they often fear the most, and may face criminal absconding charges if they attempt to leave their employer. In this sense, ‘employers’ act as human borders, blocking workers in the kafala system’s access to basic rights. This demonstrates the extent to which immigration status is weaponized by those who administer border regimes, and is a key aspect of why the kafala system is so highly exploitative.
In this manner, employers of workers in the kafala system benefit from these borders as means of freedom, rather than of retribution. This form of extra-judicial immigration is enabled by the GCC states in order to maintain the precarity of kafala workers’ economic and legal status. Hence, workers in the kafala system, particularly MDWs, may face criminalization and absconding charges from the Ministry of Interior if they flee their abusive working conditions in the form of fines, indefinite detentions and deportation (Fairwork, 2020). These absconding charges enable those who ‘employ’ MDWs to exploit their precarious positions by acting as their sole guarantor of basic rights. In this sense, ‘employers’ are granted impunity from the police, regardless of the dire working conditions they may create. The connotations for the moral dimension of the states’ legal systems are such that kafala, as adapted to migrant labour, ‘violates both the letter and spirit of the legal institution,’ where ‘something once associated with social protection has become more restrictive and punitive’ (Franz, 2011).
However, vigilance should be taken before invoking the terms ‘custom’ and ‘tradition’ to explain the kafala system. Border abolitionist and activist Harsha Walia notes that the moral uncertainties surrounding the practice of kafala today, especially regarding its portrayal in liberal, western media, have rendered the kafala system a product of ‘culture’ rather than ‘structure’. Their criticisms have relied heavily on Orientalist tropes in which the kafala system is rooted in “premodern hospitality traditions” in Arab countries (Walia, 2021). In doing so, Western perceptions of the kafala system as endemic to Arab culture draw racial and cultural borders across the notion of worker exploitation under global capitalism, and dislocate the West as a site of worker exploitation.
Moreover, the creation of migrant workers as an economic commodity under the current kafala system can be traced to colonial economic policy. After the first oil well in the region was discovered in Bahrain in 1932, during the British colonial period, a huge influx of migrant workers arrived in Bahrain in search of work in the oil industry (AlShehabi, 2019). To deal with the mass influx of migrant workers, the British colonial administration introduced a system of sponsorship that placed all responsibilities regarding the immigrant’s rights, such as citizenship and a worker’s permit, in the hands of their employer. It was a means of liberalising the labour market that both regulated and profited from migration flows, while being perfectly adaptable to the principles of kafala in Islamic law and custom (Jureidini & Fares Hassan, 2020). Current practices of kafala can therefore be understood as a border regime whereby colonial rule and Islamic custom are conflated.
“Women migrant workers are most likely to gain employment in sectors where work is the most informalized and highly gendered, which may account for the high engagement of many women migrants in the domestic work sector.”
Today, however, economic factors such as globalization continue to threaten women MDWs in the kafala system. The demand for cheap migrant labour, especially in the GCC countries, has encouraged employers to capitalize on migrant workers over local workers because of their lack of choice and vulnerability from their foreign status. Employers assume that foreign workers are more ‘flexible’ and ‘cooperative’, working more while demanding fewer benefits (such as days off, healthcare, contracts, etc.). As a result of these factors, migrant employment has become massively competitive (Misra, 2007). Migrant workers who are women face extreme difficulties, in particular their participation in migration flows for employment is dependent on: their autonomy and social roles, access to resources, and the existing gender stratification in a given country. Furthermore, competition for employment between migrant men and women, and between migrants and GCC nationals, presents female migrants with a double disadvantage of being both immigrants and women (United Nations, 2021). Faced with such prejudice, women migrant workers are most likely to gain employment in sectors where work is the most informalized and highly gendered, which may account for the high engagement of many women migrants in the domestic work sector. Domestic work has huge potential to exploit workers, as it has often been excluded from traditional definitions of work and economic productivity, which have characterised ‘productivity’ solely around the generation of capital. The devaluation of work in the domestic setting provides yet another justification for the mistreatment of MDWs by their employers.
Likewise, the historical association of women as representative of the private informal economy has contributed to the overall devaluation of women’s work: productivity is positioned as masculine, and unproductivity as feminine (Agustín, 2008). Yet, despite this devaluation, there is still a massive demand for domestic work. In employment-market terms, domestic work inside of private houses, carer roles (such as for the sick and elderly) and sex work are the highest in demand for women migrant workers (Agustín, 2008). The gender-specific exploitation of MDWs that stems from this devaluation and informalization further allows incidences of emotional abuse towards MDWs to go unreported. Kafala workers are expected to be available to work continuously, even when they are in their rooms, to the point of exhaustion. As domestic work is not considered ‘formal’ work, MDWs may not have fixed timetables, or a wage, and end up working for shelter and food alone (Patterson, 2011). Women MDWs are expected to work for an unlimited amount of hours and routinely perform an unlimited range of tasks, such as dog walking or helping out their employer’s neighbour (Agustín, 2008), with little to no freedom from their domestic duties or any guarantee of a form of salary.
What is perhaps most insidious, however, is the expectation of women MDWs to provide emotional care. Across cultures and societies, women are believed to be the ones that ‘know how to care’. Women MDWs are expected to show affection and gratification in the form of maternal love for the children they care for, or emotional support to their employer. Labour scholar Arlie Russell Hochschild considers the colonial legacy connected to this obligation to care. She poses the question “are first world countries importing maternal love as they have imported copper, zinc and gold from third-world countries in the past…are those who receive care in the form of love from migrant workers getting a ‘surplus’ love just as the mine owner gets surplus value from the worker digging for gold?” (Hochschild, 2000). Therefore, the concept of ‘guardianship’ vis-à-vis the current kafala system must be reconsidered entirely, as its reality is the complete reversal of roles where the ‘guaranteed’ must also provide emotional care for the guarantor, despite working in feudal and exploitative conditions.
With this said, why does such a corrupt system persist in the GCC countries today? To answer this question we must return to the notion that the current kafala system is not an Islamic structure, but rather a conflation of economic, social and political factors loosely bound to Islamic custom that benefit a colonially-imposed neoliberalism. As such, the practice of kafala today should be reconceptualized as a historical custom with the potential to be shaped to meet specific contemporary societal needs. For example, when the Permanent Committee of Scientific Research and Fatwas in Saudi Arabia was asked to provide legal reasoning for the Islamic legal framework of recruiting MDWs through kafala, the committee first stated that “recruiting foreign workers is part of the state policy to care for the interests of its people” (Jureidini and Fares Hassan, 2020). This exemplifies the fact that neither migrant welfare nor Islamic law or custom is deemed more valuable than catering to the economic needs of societal elites, and that the socio-economic and racial borders forged by the kafala system are fundamental in the consolidation of the GCC countries’ political and economic regimes.
“The kafala system exemplifies how the global structure of capitalism is reinforced, and indeed bolstered, through national borders.”
Additionally, the GCC countries evidently permit practices of kafala without abiding by their own obligations in the kafala system. For example, at no point do the GCC states assume a strong position of ‘guarantor’ for MDWs that is so crucial to the kafala framework, preferring instead to preserve a loose custom of ‘guardianship’ in order to legitimize neoliberal approaches to migrant self-regulation to meet demands for cheap labour. This merciless labour-migration flow persists, nevertheless, to facilitate migrants sending money home. The International Labour Organisation (ILO) estimates that the remittance outflow from Saudi Arabia and the UAE ranked second and third globally (the United States ranking first), with Kuwait and Qatar ranking eighth and tenth respectively. Additionally, the ILO reports that in 2017, migrants in the Arab states collectively remitted over $124 billion to their countries of origin. (ILO, n.d). It is now possible to fathom the kafala system’s use in the GCC countries’ political economies: the state will choose to abide by all of the customary traditions of kafala provided they receive all the modern benefits of capitalizing on migrant workers, such as a steady stream of workers to supplement their large labour shortages (Goethals, Bardwell, Bhacker & Ezzelarab, 2017). More precisely, the kafala system exemplifies how the global structure of capitalism is reinforced, and indeed bolstered, through national borders (Walia, 2021).
The kafala system is a perfect demonstration of the extent to which physical and abstract borders, or indeed a conflation of the two, fuel racial and gender inequalities alongside global capitalism. The highly gendered kafala system in the GCC countries embodies institutionalized misogyny, the informalization of work, gendered notions of productivity, and the emotional and physical exploitation of domestic workers. That being said, perhaps the ‘cultural’ differences invoked to account for the atrocities of the kafala system are a projection of western colonial guilt that empowers us to see past the rampant exploitation of workers a lot closer to home. We must now use the case of the kafala system as scope to consider the position that state border regimes play in establishing, and enfranchising, structural patriarchy and capitalism globally.
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Image: https://www.amnesty.org/en/latest/news/2020/10/lebanon-blow-to-migrant-domestic-worker-rights/