The use and abuse of Islamic financial instruments – the case of kafala

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Sukuk, murabaha, takaful. Granted, those might not be household names yet. Undeniably, though,  as of lately more and more people will have heard about the abovementioned Islamic financial instruments and schemes. The number of articles, op-eds and journal papers dealing with the complexities of Islamic Banking and Finance (IBF) grows proportionally to the increase in its popularity outside the predominantly Muslim countries (for example in England – see the first article within this series Let’s talk about Islamic finance – facts that everybody should know).

Islamic financial instruments are not that great in number when compared to the conventional ones, and not all of them are equally often utilized in the markets. One type, however, is widespread all over Mashreq region and the GCC[1]. Rarely mentioned in the context of IBF, often spoken of by the human rights activists. Ladies and gentlemen, I present to you kafala.

Literally meaning surety, bail or guarantee, kafala is – in the most basic terms – a contract of guarantee “in which a person adds to his responsibility or liability on behalf of another person in respect of a demand for something” (Khan, M. A.). That “something” might relate to money (kafala bi-l-mal), a debtor’s appearance in court (kafala bi-l-nafs), or taking care of an orphaned child. Islamic state (not to be confused with the recently created Islamic State (of Iraq and the Levant/Syria), or the infamous ISIS) is supposed to be a kafeel (guardian) of the people, and it should remain responsible for ensuring a survival and basic maintenance of its people (depending of the socio-economic situation of the state itself).

Today, kafala is a commonly used instrument in the labour markets of Gulf and Mashreq countries. Foreign workers who come to those sates in search of work must have a kafeel – an employer who is taking full economic and legal responsibility for them for the duration of their stay in the host country. Why is that problematic? Well, to paraphrase the classic, with great responsibility comes great power. Suffice it to say that in most countries the employee cannot change jobs, let alone leave the country, without his or her employer’s permission.

This situation affects more people that it might be imagined. In the GCC alone there are more than 20 million temporary labour workers (i.e. more than 40% of the population; ESCWA). Kafala system is supposed to help governments to organize and manage such a huge migrant population; all temporary workers need an official legal “sponsor” in order to obtain working visa and residency status in the country (Gardner 2010).

Depending on the country, the sponsor has complete or limited control over the worker’s mobility. In many GCC countries domestic workers are explicitly excluded from the provisions of the labour are social security laws. Should they run away from abusive employers, they might be accused of committing a crime and even jailed. If they are lucky and stubborn enough to bring their cases to the court, the face slow judiciary processes and very limited help on the part of their home countries. Moreover, while the case is pending, they might not be allowed to work.  

As it might be seen, the potential for exploitation is enormous and cases of human rights abuse within this segment of society have been reported by numerous organizations such as Amnesty International and Human Rights Watch for years now. The picture emerging from the reports is grim. Male construction workers tend to live in terrible conditions, crowding in small rooms in littered labour camps with a “problematic” access to water (HRW, 2012). Females are mostly employed as domestic workers, living with their masters in houses where beatings, imprisoning within the residence, and even sexual abuse are not uncommon. Many, regardless of their gender, complain about long working hours, lack of permission to visit their families, and delays in the payment of wages for weeks or even months.

The situation is dire in the entire region. A country that has lately come under particular scrutiny, though, due to its organization of 2020 football World Cup, is Qatar. After receiving a lot of bad publicity and international criticism regarding its treatments of foreign workers, whose tragic stories have been regularly leaking to the press, the authorities announced that changes into the controversial system would be implemented by the end of this year.

The changes are supposed to include setting up a banking system through which all salaries will be paid directly to workers’ accounts, introducing adjustments to the exit permit and no objection certificate requirements to make it easier for the migrants to switch jobs and leave the country. Additionally, more safety inspectors are supposed to be hired.

Qatar (just as Kuwait for that matter) has been talking about adjusting the kafala system for years now – to be fair, at least it has been talking about that at all. Others, like Saudi Arabia, pretend not to see the problem at all. The change is possible – Bahrain for one introduced in 2009 laws that allow expats to switch employment without their employers’ consent should they fulfil certain requirements. Alas, the change does not apply to domestic workers. Much remains to be done and one may only hope that the system that once helped those in need of guardianship will finally cease to be misused for real. Inshallah.

Katarzyna Sid?o – doktorantka na Wydziale Orientalistycznym Uniwerystetu Warszawskiego oraz Communication Manager w CASE – Centrum Analiz Spo?eczno-Ekonomicznych. Uko?czy?a studia magisterskie na Wydziale Orientalistycznym UW (kierunek arabistyka) oraz studia licencjackie na Wydziale Nauk Ekonomicznych UW. Studiowa?a równie? w School of Oriental and African Studies w Londynie (stypendium w ramach program Socrates- Ersamus). Na studiach doktoranckich prowadzi?a badania w Jordanii (Uniwersytet Jorda?ski w Ammanie, stypendium badawcze w ramach programu Erasmus- Mundus).

[1] Iraq, Jordan, Lebanon, Palestine, Syrian Arab Republic, Bahrain, Kuwait, Oman, Qatar, Saudi Arabia and the United Arab Emirates (International Labour Organization classification).

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