Prosecution and Victim Protection Under Existing Laws in the SADC Region: Options and Challenges

Jill Thompson, Legal Consultant

October 2007

IAWJ Conference: Human Trafficking

Overview of IOM Study

• Objective: To assess the laws and policies available to combat trafficking in the SADC region

• Timeframe: 2005-2006• Countries included in study:

– Mozambique– South Africa– Tanzania– Zambia– Zimbabwe

Objectives/Scope

• To assess the laws available to prosecute human trafficking in the region

• To identify gaps and weaknesses in the available legal framework

• To identify practical obstacles to enforcement/prosecution of available laws

• To identify laws and policies available to assist victims of human trafficking and to identify legal and practical barriers to effective support and protection

• On a preliminary basis, to identify legal/policy gaps relevant to prevention

• To make recommendations aimed at strengthening the legal framework for combating trafficking at the national and regional level

Regional Findings

Legal Framework– Most countries in the SADC region have

ratified/acceded to the Trafficking Protocol or are in the process of doing so

– Most have also signed and/or ratified CTOC and the Migrant Smuggling Protocol, Convention on Rights of the Child, and relevant ILO Conventions

– Many have Constitutional Provisions against slavery, forced labour, and/or exploitation of children, as well as broader protections re: liberty, dignity and security

Regional Findings

None of the countries surveyed in Southern Africa currently have a national policy or comprehensive legislation in place to address the problem of human trafficking or protect the rights of trafficked persons

Regional Findings: Prosecution

– A large gap exists between the observance of human trafficking in the field and the arrest and conviction of traffickers

– Very few cases involving traffickers or trafficking have been prosecuted to date

– Traffickers are more likely to be deported than prosecuted for criminal offences

Regional Findings: Prosecution

– Most of the countries of Southern Africa do not have a distinct law criminalizing trafficking in persons

– Of those that have a trafficking law, “trafficking” has not been defined or is defined differently/more narrowly than the Trafficking Protocol requires

Regional Findings: Prosecution

Despite the absence of a distinct trafficking offence, all of the countries studied have laws in place that could be used to prosecute traffickers, at least for certain elements or forms of human trafficking, or for crimes commonly associated with human trafficking

Regional Findings: Prosecution

Examples of available laws include:– Sexual Offences (Procurement, Prostitution-related offences,

Child Sexual Exploitation, Defilement)– Liberty Offences (Kidnapping/abduction, wrongful

confinement, slavery)– Labour Offences (forced labour, child labour)– Immigration Offences (unlawful entry/exit; passport fraud;

forging documents)– Child protection laws (child abuse/neglect; adoption offences)– Organized crime, money laundering, corruption– Other crimes: intimidation, extortion, fraud/deception– Conspiracy, aiding/abetting, counseling/procuring

Regional Findings: Prosecution

• Most police/prosecutors are conservative in their approach and do not aggressively seek to charge/prosecute human trafficking with laws that have not been previously used for that purpose

• Traffickers are most often prosecuted for immigration offences, if at all

• Prosecutors are not using conspiracy, counselling or aiding/abetting laws to reach others in the trafficking chain

Regional Findings: Prosecution

• None of the criminal laws currently available adequately address all the essential elements of human trafficking or meet the minimum standards of the Trafficking Protocol, Article 5

Regional Findings: Prosecution

Major Limitations in the Criminal Law

– Scope/definition– Jurisdiction– Penalties

Regional Findings: Prosecution

Major Gaps in the Criminal Law

– Trafficking for pornography/ explicit show– Deceptive recruitment/ procurement for labour

exploitation– Exploitation of migrant workers– Organized crime/ money laundering– Trafficking in organs/body parts– Confiscation/withholding of documents– Liability of legal entities

Regional Findings: Prosecution

• Enforcement of relevant laws is hampered by:– Lack of distinct/clearly defined offence– Lack of awareness/training– Limited capacity/resources (personnel, equipment,

etc)– Lack of coordination (internal and regional)– Corruption– Inadequate victim/witness protection measures

Assessment of Available Protection Measures

• Residency status for foreign trafficked persons

• Access to shelter and services• Access to legal information/advice• Witness Protection (security)• Protections in court proceedings

(dignity/privacy)• Opportunities to obtain

compensation/restitution

Child Protection

• Immigration statutes do not include special procedures or protections for children

• Child Protection statutes do not specifically identify trafficked children or unaccompanied foreign children as children “in need of care”

• Foreign children are usually perceived to fall outside the ambit of formal child protection system

Child Protection

• Courts can play an important role in ensuring that trafficked children are protected.

• For example, see Centre for Child Law and Another v. Ministry of Home Affairs and Others 2005 (6) SA 50 (T) (unaccompanied foreign children entitled to protections of the Child Care Act)

Regional Findings: Protection

• None of the countries in the region have specifically addressed the legal status of victims of trafficking; however

• Most countries have laws in place that would allow a “temporary permit” to be issued to an otherwise “prohibited immigrant” under certain conditions

Regional Findings: Protection

• None of the countries studied have established policies or mechanisms to identify, refer or assist victims of trafficking

• Assistance is provided primarily by international organizations and NGOs

• Government support is generally ad hoc

Regional Findings: Protection

• Only SA has formal witness protection system

• Access to services limited; public support and services, including some NGO services, not available to foreign trafficked persons (legal aid, medical care, education)

• Opportunities for compensation very limited (exception TZ)

• Victim-friendly courts/ court procedures: SA, Zimbabwe, Tanzania

Role of Judiciary in Protection

• Enforce and expand measures to protect the dignity and privacy of vulnerable witnesses in court

• Use discretion to award victim compensation as part of sentencing in criminal proceedings

• Ask questions when circumstances in case suggest possible trafficking

General Recommendations

• Adopt a comprehensive trafficking law consistent with the Trafficking Protocol

• Train law enforcement to use existing law and to apply it more aggressively to trafficking cases

• Develop and implement non-legislative measures (policies/practice guidelines, statutory instruments) to address trafficking issues where possible

General Recommendations

• Amend existing law to address gaps and weaknesses

• Improve regional/ cross-border cooperation in investigations and prosecutions

• Develop mechanisms to enhance cooperation and coordination between law enforcement agencies/divisions within countries

General Recommendations

• Expand and formalize relationships with NGOs to provide support to victims of trafficking

Thank you

For further information, questions or comments, please contact:

Jill Thompson jillandsteve2006@gmail.com