By Judge Patricia Goliath
‘Money may be able to buy a lot of things, but it should never, ever be able to buy another human being’ John F Kerry Trafficking in persons report July 2015 (www.state.gov, accessed 3-3-2016).
Human trafficking is a global phenomenon and one of the world’s most shameful crimes. It is nothing more than modern slavery and affects each and every country, whether as a country of origin, transit or destination for victims. Human trafficking is considered to be the largest source of profits for organised crime after drugs and guns. According to the United States’ (US) Department of State, approximately 600 000 – 800 000 people are annually trafficked across borders internationally. It is estimated that 80% of all trafficked persons are women and children. Sexual exploitation is by far the most commonly identified form of human trafficking.
The first universal instrument dealing exclusively with all aspects of human trafficking is the United Nations (UN) Protocol to prevent, suppress and punish trafficking in persons, especially women and children, supplementing the United Nations Convention against transnational organised crime 2000, (www.osce.org, accessed 3-3-2016) known as the Palermo Protocol. The Palermo Protocol was adopted on 15 November 2000, hence this year marks the 16th anniversary of the adoption of the protocol. The Palermo Protocol provides for a comprehensive response to human trafficking. Due to the transnational nature of the crime the protocol seeks to harmonise national laws on trafficking, thereby creating a uniform global consciousness and response to trafficking. As at June 2015 it has been ratified by 167 parties.
An overview of the Palermo Protocol shows that the main focus is on the ‘3P’ paradigm of –
The protocol also focuses on international co-operation between states and governments globally are encouraged to ratify the protocol. Once ratified, a state party undertakes to ensure that its national legislation is compatible with the minimum standards as set out in the protocol. States are obliged to transpose key elements of the protocol into their domestic legislation to give effect to the ‘3P’s’.
Article 3 of the protocol defines the crime of trafficking in human beings as follows:
‘(a) “Trafficking in persons” shall mean the recruitment, transportation, transfer, harbouring or receipt of persons, by means of the threat or use of force or other forms of coercion, of abduction, of fraud, of deception, of the abuse of power or of a position of vulnerability or of the giving or receiving of payments or benefits to achieve the consent of a person having control over another person, for the purpose of exploitation. Exploitation shall include, at a minimum, the exploitation of the prostitution of others or other forms of sexual exploitation, forced labour or services, slavery or practices similar to slavery, servitude or the removal of organs.’
The protocol further provides that:
‘(b) The consent of a victim of trafficking in persons to the intended exploitation set forth in subparagraph (a) of this article shall be irrelevant where any of the means set forth in subparagraph (a) have been used.’
The annual global US Department of State Trafficking in Persons report (TIP report (op cit)) was released in July 2015. The report is intended as a diplomatic tool for the US government when engaging countries on the issue of trafficking. The report monitors and ranks countries using a three-tier system according to their compliance level with the Palermo Protocol. The highest, tier one ranking, signifies governments of countries fully complying with the minimum standards of the protocol. The lower, tier two ranking, signifies governments of countries that do not comply fully, but are making significant efforts to reach compliance with the minimum standards, and for which there is:
A tier three ranking signifies governments that do not fully comply with the minimum standards of the Palermo Protocol and are not making significant efforts to do so.
The 2015 TIP report identified many Southern African Development Community (SADC) countries as source, transit and/or destination countries for trafficking. All the countries in the SADC region ratified the Palermo Protocol. Many are in the process of drafting legislation or developing measures to combat trafficking. Countries such as Mozambique, Zambia and Tanzania have all introduced comprehensive anti-trafficking legislation in 2008. The aforementioned countries and South Africa (SA) have a tier two ranking. Zimbabwe is the only SADC country with a tier three ranking.
South Africa has also been identified as a source, transit and destination country for men, woman and children trafficked for forced labour and sexual exploitation. The tradition of forced marriage through ukuthwala is also known to be abused for human trafficking purposes (see ‘Ukuthwala: Is it all culturally relative?’ 2015 (Aug) DR 28). The report states that various international crime syndicates linked to sex trafficking operate in SA. Furthermore, forced labour involving local residents and illegal immigrants has been reported. In terms of international victims Thai women are the largest foreign group.
On 20 February 2004 SA ratified the Palermo Protocol. In compliance with its international obligations Parliament passed the Prevention and Combating of Trafficking in Persons Act 7 of 2013 (the Act), which was signed by the President in July 2013. On 9 August 2015 the Act came into operation. The Act addresses the scourge of trafficking in persons comprehensively. The Act adopts a broad definition of human trafficking, namely, that a person will be guilty of human trafficking if he or she delivers, recruits, transports, transfers, harbours, sells, exchanges, leases or receives another person within or across the borders of SA, through various means, including the use of force, deception and coercion, aimed at the person or an immediate family member for the purpose of exploitation. Furthermore, a person who adopts a child, facilitated or secured through legal or illegal means; or concludes a forced marriage with another person, for the purposes of exploitation of that child or person, is guilty of an offence under the Act in terms of s 4(2).
The Act creates offences such as debt bondage, possessing/destroying or tampering with travel documents, and using services of victims of trafficking. It also provides for the protection of victims, including foreigners, and gives South African courts extra-territorial jurisdiction in certain circumstances, for example, where the victim is a South African resident or where the suspect is present in SA. The Act adopts a victim-centred approach prioritising the welfare of victims during investigations and prosecutions. Protective measures include the prohibition of the prosecution of victims who had entered the country without valid documentation, the prohibition of summary deportation of foreign victims and proper repatriation processes in circumstances where protective systems are in place in their country of origin. The legislation criminalises various acts that constitute or relate to trafficking in persons and imposes harsh penalties for violations as follows:
The Act also provides for severe fines and enables the state to confiscate the assets of traffickers. The legislation will assist in identifying victims and prosecuting suspects. Furthermore, it will ensure that victims of human trafficking are supported by a protective structure involving various role-players. Human trafficking is widely studied and attracts social and academic interest, yet there is no reliable data providing a comprehensive insight into the scale, character and impact of trafficking into or out of SA or the Southern African region. The LexisNexis Human Trafficking Awareness Index provides valuable insight into human trafficking as it presents itself across SA and the African continent (see ‘Analysis of the Human Trafficking Awareness Index report’ (2015 (June) DR 9)). The report refers to the kidnapping of 276 school girls in Northern Nigeria by Boko Haram in April 2014, which caused worldwide outrage. It is widely believed that the girls were trafficked and sold into sexual slavery or forced into marriage. Notably, Nigeria initially had a tier one ranking in 2011, which was downgraded to tier two in 2012 amid concerns about children being exploited and trafficked for sexual exploitation and sexual servitude.
The methods to facilitate trafficking in persons have evolved through the years but the usual features of the crime involve recruitment by force or deception, and movement or transportation of people against their will, for the purposes of exploitation. However, the crime remains underreported. Even if a country adopts comprehensive anti-trafficking legislation, this is not sufficient to combat trafficking. It is essential to address the root causes of trafficking in persons to truly combat this socially complex problem. This would entail –
A multi-disciplinary approach is needed to really make an impact in combatting human trafficking. It requires a concerted global response from governments and civil society.
Conclusion
The South African government has taken pro-active and practical measures for optimum effectiveness of the Act. A multi-sectoral National Task Team consisting of the department of Justice and Constitutional Development, National Prosecuting Authority, South African Police Services, Home Affairs, Social Development and Civil Society were set up by the South African government in order to develop a comprehensive National Action Plan to combat human trafficking in the country. The primary focus of the Task Team is to develop a strategic framework, creating public awareness, implementing training programmes and strengthening the capacity for services and protective measures for victims of trafficking. The regulations under s 43(3) of the Act were promulgated on 23 October 2015. It provides for accredited social service institutions, which will assist in reporting, identifying and assessing victims of trafficking. Provision is made for places of safety for victims and protective measures for child victims. The regulations prescribe a set of guidelines to ensure minimum standards are complied with by accredited organisations rendering services to victims of trafficking. The implementation of the Act is a positive step for SA in combatting human trafficking in a holistic and coordinated manner. It is anticipated that SA will see more cases of human trafficking identified, reported and prosecuted. The enactment and implementation of this comprehensive legislation will facilitate an environment where structures are created to collect data on trafficking in persons, establish the extent of the problem, and evaluate whether measures to combat trafficking is effective. South Africa has, therefore, made significant efforts to deal with human trafficking in compliance with the minimum standards as prescribed in the Palermo Protocol.
Patricia Goliath BA LLB (UWC) LLM (UCT) is a judge at the Western Cape High Court.
This article was first published in De Rebus in 2016 (April) DR 22.
