AN ANALYSIS OF HUMAN TRAFFICKING IN SOUTHERN AFRICA General Proposal Submitted in Partial fulfillment of the requirements from Degree of Bachelor of

Transcription

1 AN ANALYSIS OF HUMAN TRAFFICKING IN SOUTHERN AFRICA General Proposal Submitted in Partial fulfillment of the requirements from Degree of Bachelor of Laws Degree (L.L.B) of the University of Namibia By Lwando Mufune Student Number: Supervisor: MR F. Bangamwabo

2 CONTENTS Acknowledgments page III Abbreviations IV CHAPTER ONE 1.1 Background to the Research Human Trafficking in Southern Africa RESEARCH OBJECTIVES LIMITATION OF RESEARCH RESEARCH METHODOLOGY AND DESIGN 6 CHAPTER TWO 2.1 Human Trafficking a Human Rights Issue Human Trafficking at an International level: the United Nations Global Initiative to fight human trafficking Review of Human Trafficking Instruments: Legislation and Prosecution The Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children, Supplementing the United Nations Convention against Transnational Organized Crime (2000) Application of the Protocol A Differentiation between Smuggling and Trafficking 20 CHAPTER THREE 3.1 Human Trafficking in Namibia Anti Human Trafficking Legislation in Namibia Human Trafficking in South Africa Anti Human Trafficking Legislation in South Africa Human Trafficking in Zambia Anti Human Trafficking Legislation in Zambia 35 CHAPTER FOUR 4.1 CONCLUSION

3 RECOMMENDATIONS 40 REFERENCE LIST 44

4 ACKNOWLEDGEMENTS I am heartily thankful to my supervisor, Mr. François Bangamwabo whose patience, encouragement, guidance and support from the initial to the final level enabled me to develop an understanding of the subject of Human Trafficking. Lastly, I offer my regards and blessings to all of those who supported me in any respect during the completion of the project. A special Thank You goes out to my Parents Professor and Mrs Mufune. This dissertation would not have been possible without you. V

5 ABBREVIATIONS CEDAW The Convention on the Elimination of all forms of discrimination Against women CTOC ICCPR ICESCR ILO IOM MGEWC MAWF NGOs POCA UN UNDHR UNGIFT UNODC SADC TELC ZLDC Convention against Transnational Organized crime International Covenant on Civil and Political Rights International Covenant on Economic, Social and Cultural Rights International Labour Organization International Organization for Migration Ministry of Gender Equality and Child Welfare Ministry of Agriculture, Water and Forestry Non Government Organizations The Prevention of Organized Crime Act United Nations United Nations Declaration of Human Rights (UNDHR) United Nations Global Initiative to fight Human Trafficking United Nations Organization for Drug Control Southern African Development Community Towards the Elimination of Child Labour Zambia Law Development Commission

6 CHAPTER ONE 1.1 B ACKGROUND TO THE RESEARCH Modern slavery be it bonded labor, involuntary servitude, or sexual slavery is a crime and cannot be tolerated in any culture, community, or country [It] is an affront to our values and our commitment to human rights. Hillary Rodham Clinton, US Secretary of State Trafficking of persons is a common practice in the modern world. The beginning of trafficking can be dated back to the ancient practices of slavery and the slave trade[1]. Trafficking of persons has been given an alternative meaning since the beginning of the 20 th century.[2] The increase in the trafficking of persons in modern times has been stimulated by a wide variety of factors. For one the progression of globalisation, particularly advancement in communication and transportation has made it easier for traffickers to traffic people. People are trafficked by land, sea and air normally from poor states to developed ones. Human traffickers take advantage of poverty, hope and innocence of the vulnerable people of the world. In essence, Human Trafficking victims are made into slaves in the 21 st century, even though slavery was abolished hundreds of years ago. Another significant feature of modern day trafficking is the involvement of organised criminal groups. Family members, friends and prominent figures in local communities also lure potential victims into the process.[3] Essentially human trafficking may involve innocent boys and girls being forced into becoming soldiers. Some of these boys and girls may even be forced into doing hard labour or may even be sold for sex. Young women are being trafficked for exploitation they are forced into domestic labour, prostitution or marriage[4]. The exploitation extends to grown men as well. Men, who are ensnared by debt, are forced to slave away in mines, plantations, or sweatshops. The question of human trafficking has fast made its way to the matters of international policy and research. The speedy developments in trafficking of human beings and its transnational nature have prompted the international community to take action. A major step in this regard was taken when the United Nations adopted, The Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children to which the United Nations Organisation attached the UN convention against transnational Organised Crime in December The key aspect of the fore-mentioned protocol is its definition of human trafficking which at this moment is appropriate to note. Human trafficking is: 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, for the purpose of exploitation of the prostitution of others or other forms of sexual exploitation, forced labour or services, slavery or practices

7 similar to slavery, servitude or the removal of organs. The consent of a victim of trafficking in persons to the intended exploitation shall be irrelevant where any of the means set forth above have been used. [5] The above definition is an important one for the reason that it provides a general view to different actors at an international, regional and national level[6]. Further the definition highlights to us that human trafficking is a human rights issue. According to Obokata[7], one reason why it is important to promote a human rights approach is that a comprehensive analysis of trafficking and related issues in light of human rights norms and principles established under international human rights law hasn t been developed. 1.2 HUMAN TRAFFICKING IN SOUTHERN AFRICA The exact number of people being lured into trafficking globally is unknown. Reasons for this include efforts by traffickers to avoid detection and the low priority given by most governments to monitoring and preventing trafficking. Regardless, it is quite clear that Human Trafficking in Africa is huge problem. It seems that Africa itself has become a major source of trafficked people around the world, both within and outside Africa[8]. It is estimated that about 80 percent of people trafficked in the international trade are trafficked for the purposes of sexual exploitation, in Africa the trafficking of people occurs for purposes which include domestic work, farm labour and construction, in addition to sexual exploitation.[9] It appears that traffickers in Africa manipulate long-established apprenticeships and other cultural practices to lure people into bondage. The extent and variety of the Human Trafficking problem in Africa, along with the regions open borders and weak law enforcement make it for the most part hard to stop trafficking in persons. Internationally, countries are frequently identified either as being source, destination or transit countries. This identification for the most part allows many governments to better plan and eventually reach their anti trafficking law enforcement objectives. The dilemma in Africa is that many states themselves are source, destination and transit countries. In the IOM conducted a study to evaluate the laws and policies available to combat trafficking in the SADC region. The countries that were included in the study were among others, South Africa and Zambia.[10] The goals of the study were to review the laws available to prosecute human trafficking in the region as well as to discover gaps and weaknesses in the available legal framework. The study also aimed at discovering what laws and policies were available to support victims of human trafficking and conversely to discover which legal and practical barriers to effective support and protection existed within the region of Southern Africa. The findings of the study were first and foremost that a huge difference existed amongst the observance of human trafficking in the field and the arrest and conviction of traffickers[11]. Many Southern African countries appeared not to have distinctive laws which criminalized Human Trafficking. The Few countries that did have some kind of trafficking law did not clearly define trafficking in persons or in some cases the definition was more narrowly than what the Trafficking Protocol requires. In spite of the lack of a definite trafficking offence, all of the countries studied had laws in place that could be used to prosecute traffickers, at least for certain elements or forms of

8 human trafficking, or for crimes commonly associated with human trafficking[12]. The criminal laws within the studied Southern African countries did not sufficiently tackle all the essential elements of human trafficking or meet the minimum standards of the Trafficking Protocol as set in Article 5.[13] Most of the criminal law mechanisms within Southern Africa implicitly allow for trafficking for pornography, for deceptive recruitment and procurement for labour exploitation, as well as exploitation of migrant workers.[14] What is so more, the criminal laws studied did not adequately deal with Organized crime, in particular they did not deal with money laundering or with Trafficking in organs. Ultimately the criminal laws assessed were found to be hampered by a lack of a clearly defined offence as already mentioned earlier, there appeared to be a need for awareness of the crime of trafficking within the region as well as limited capacity and resources. From the study in question it is evident that within Southern Africa there is a shortage of efforts for the coordination of the fight against Human Trafficking within member states territory and within SADC as a whole and corruption is rife within the region which creates an obstacle to spreading awareness. Southern African countries have failed to particularly deal with the legal position of victims of trafficking notwithstanding this, many of these countries have laws in place that grant a temporary permit to be issued to an otherwise prohibited immigrant under certain conditions[15]. Well-known policies or mechanisms to identify, refer or assist victims of trafficking assistance are made available largely by international organizations and NGOs, because local governments support toward protection of trafficking victims is generally informal. As a result of the above mentioned findings the IOM study recommended that Southern Africa should modify existing law in order to address gaps and weaknesses. Further efforts should be made to develop regional and cross-border collaboration in investigations and prosecutions.[16] 1.3 RESEARCH OBJECTIVES The main objective of the proposed dissertation is to analyse the extent of human trafficking in Southern Africa with specific emphasis on Namibia, South Africa, and Zambia, and to reconcile the fore-mentioned with the law. Theory Evaluation 1) To provide an overview of the crime of human trafficking generally 2) To briefly explore the law mechanisms in place to combat Human Trafficking globally and within Namibia, South Africa and Zambia. 1.4 LIMITATION OF RESEARCH The Research has been limited to three Southern African countries, namely Namibia, Zambia and South Africa. These particular countries were chosen differentiating reasons. First and

9 foremost South Africa was chosen as an area of research because of its leading status both within the Southern African Region. South Africa is fast developing in many aspects both regionally as well as internationally. South Africa hosted the football world cup in June 2010, an important sporting event which drew much attention to the issue of human trafficking within Southern Africa. Namibia, was also selected because it is a neighbouring country of South Africa. It has a similar history with South Africa and many of its policies are influenced by South Africa be as it may implicitly. Zambia was selected because of personal reasons. This is the country of my birth and although I grew up in Namibia, it remains the one country within Southern Africa that I am most affiliated with. It is because of this that a certain curiosity was aroused within me that led me to try and discover how human trafficking is treated in Zambia. 1.5 RESEARCH METHODOLOGY AND DESIGN Information for the dissertation has been acquired from both primary and secondary sources. 1) Secondary Sources Useful information was acquired from various publications such as textbooks, journals and previous studies on the subject, as well as case law. 2) Primary Sources The Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially woman and Children, Supplementing the United Nations Convention against Transnational Organized Crime of 2000 and the Protocol against The Smuggling of Migrants by Land, Sea and Air, Supplementary the United Nations Convention against Transnational Organized Crime of 2000 are human rights instruments which have been passed to try and combat human trafficking. Regional Human Instruments which will be considered in the dissertation are The Convention on the Elimination of all forms of discrimination against Woman (CEDAW) and the African Charter on Human and People s Rights. The charter also created the African commission on Human and People s Rights, to ensure the protection of human rights in Africa. The African Charter recognizes the following civil, political, economic, social and cultural rights including specifically the freedom of slavery, slave trade, torture, inhumane and degrading punishment and treatment.

10 3) Research design The dissertation is of an exploratory nature, no hypothesis will be formulated. The dissertations emphasis is on the legal extent of Human Trafficking in specific Southern African countries. The Dissertation has been designed in the following manner. Attention is given to each country individually[17]. The manner in which human trafficking occurs in each country is measured, the applicable laws or anti trafficking legislation are briefly studied and finally the treatment of victims of trafficking is given some attention.

11 CHAPTER TWO 2.1 HUMAN TRAFFICKING AS A HUMAN RIGHTS ISSUE Human rights are by definition often difficult to understand. Despite this one cannot deny the importance of human rights in the modern world, in fact Human rights may be measured as a major achievement of modern day philosophy. This is simply for the reason that Human rights as a global concept allows people the world over to fashion their lives in the manner they see fit, or at least they should. The attraction and ground-breaking power of Human rights has affected much of world history. Human rights claim today is to be the only universally recognized system of values, different form religions and the like[18]. Human rights furnishes human relations, human rights are equally applicable not only to governments, law enforcement bodies or the military, but in principle also to business employees, international organizations or private individuals.[19]an important tool in terms of Human rights is the United Nations Declaration of Human Rights (UNDHR) that was adopted on 10 December 1948.[20] In it one can observe the philosophical nature of human rights because in a sense the UNDHR implicitly provides for a kind of battle between good and evil, evil which can only be overcome because of Human Rights. In spite of the foundation or rationalization afforded to human rights, one can appreciate that human rights represent both individual and group demands for political power, wealth, enlightenment, and other cherished values and capabilities, the most basic of which is respect and its essential elements of reciprocate tolerance and mutual forbearance in the pursuit of all other such values and capabilities and standards for judging the legitimacy of laws and traditions [21]. What is important to note is that Human rights refer to a range of claims ranging from the most acceptable to the most desired. Human Rights are of both a legal and moral nature. Simply, if a right is determined to be a human right, it is understood to be typically general or universal in nature, equally belonging to human beings worldwide without discrimination. Much of the emphasis of human rights is on the life and dignity of human beings[22]. A persons dignity is violated when they are subjected to torture, forced to live in slavery or poverty. Slavery violates dignity; it was the first human rights issue to awaken broad international concern. Although many reprimands have been made, the international community continues to be tackled with practices that can be considered one and the same as slavery. Human Trafficking is modern slavery and a clear violation of human dignity. Case law which illustrates the human rights aspect of human trafficking will now be considered. The basis of Rantsev v. Cyprus and Russia[23] was the death of Oxana Rantseva and was

12 brought before the European Human Rights Court by her father. The facts of the case briefly were that Oxana moved from Russia to Cyprus and began to work as a 'cabaret artiste'. It is reported that it was widely known that these 'artistes' were in practice mostly working as prostitutes[24]. Within a few weeks of coming to Cyprus she left the place where she worked, but was subsequently found by her employer who brought her to the police with the sole intention of having her detained and deported, so that he could employ someone else. The police found that Oxana was not staying in Cyprus illegally, and that she had a work permit and it was the police who made her go back with her employer. It is reported that later that night, she tried to escape from the apartment where her employer was keeping her and in doing so fell of a balcony and died. Despite the mysterious circumstances of her death, the perspective of possible human trafficking was never looked into by the authorities[25]. The honourable Court in the above instance found, that trafficking in human beings, although it was not clearly mentioned in the European Convention for Human Rights, could be considered within the scope of Article 4. Article 4 of the European Human Rights convention deals with the prohibition of slavery, servitude and forced labour. Furthermore it seems that Article 4 is a rarely used Convention provision[26]. In fact there is only one earlier Court judgment in the context of human trafficking this being the case of Siliadin v. France[27]. In the Siliadin Case, the Court looked into a situation of a Togolese girl held in servitude as a housemaid in France. Relying on Article 4 of the European Convention, the applicant alleged that the criminal-law provisions applicable in France did not afford her sufficient and effective protection against the servitude in which she had been held, or at the very least against the forced or compulsory labour she had been required to perform.[28] The court in the Siliadin case, paid close attention to the positive obligation to penalise and prosecute acts of slavery, servitude or forced labour. The court further broadened its approach in the Rantsev case by putting in line its findings with other international instruments on human trafficking in particular the Protocol to Prevent, Suppress and Punish Trafficking in Persons, especially Women and Children[29] supplementing the United Nations Convention against Transnational Organised Crime. Returning to Rantsev v. Cyprus and Russia the European Human Rights Court also found that Cyprus had violated Ms. Rantseva's right to liberty. It was argued by the court that a violation of the right to liberty was obvious, as the victims detention at the police station, even if short, had no legal basis. The court also found, that the forced stay of Oxona Rantseva at the apartment violated Article 5 of the trafficking protocol, since the authorities had failed to observe their positive obligation to protect her from arbitrary detention by a third party. In this case, within a known context of the cabaret artistes situation on Cyprus and her particular case, and by handing her over to her employer instead of letting her go by herself from the police station, they had acquiesced in her loss of liberty. The fact that she did not openly

13 protest was irrelevant for the Court. Globally there is an inclination towards the recognition that trafficking is a human rights issue. This is evidenced by certain provision found in human rights instruments, instruments which are relied upon in addressing Human Trafficking in human rights terms. For example Article 6 of CEDAW[30] states: State parties shall take all appropriate measures, including legislation, to suppress all forms of traffic in women and exploitation of prostitution of women. Article 35 of The Convention on the Rights of the Child[31] strengthened by the Optional protocol on Sales of Children says; State parties shall take all appropriate national, bilateral and multilateral measures to prevent the abduction of, the sale of or traffic in children for any purpose or in any form. Without specific reference to Human Trafficking, some conventions touch on Human Trafficking. The ICCPR[32] for instance upholds the following: Article 8 (1) No one shall be held in slavery, slavery and the slave trade in all their forms shall be prohibited Article 8 (2) no one shall be held in servitude Article 8 (3) (a) no one shall be required to perform forced or compulsory labour The International Covenant on Rights of Migrant Workers and their Families[33]: Article 11 (1) no migrant worker or member of his or her family shall be held in slavery or servitude 11 (2) No migrant worker or member of his or her family shall be required to perfom forced or compulsory labour And the ICESCR[34] Article 10 (3) states: Special measures of protection and assistance should be taken on behalf of all children and young persons without discrimination for reasons of parentage or other conditions. Children and young persons should be protected from economic and social exploitation. Their employment in work harmful to their morals or health or dangerous to life or likely to hamper their normal development should be punishable by law. States should also set age limits below which the paid employment of child labour should be prohibited and punishable by law The African Charter[35] in terms of Article 5; Every individual shall have the right to the respect of the dignity inherent in a human being and to the recognition of his legal status. All forms of exploitation and degradation of man, particularly slavery, slave trade, torture, cruel, inhuman or degrading punishment and treatment shall be prohibited. The Human Trafficking Protocol touches on protection of Human Rights of victims. Its

14 preamble reads that the State Parties to this Protocol, Declaring that effective action to prevent and combat trafficking in persons, especially women and children, requires a comprehensive international approach in countries of origin, transit and destination that includes measures to prevent such trafficking, to punish the traffickers and to protect the victims of such trafficking, including by protecting their internationally recognized Human Rights. 2.2 HUMAN TRAFFICKING AT AN INTERNATIONAL LEVEL: THE UNITED NATIONS GLOBAL INITIATIVE TO FIGHT HUMAN TRAFFICKING Because human trafficking is an issue that affects every country in the global community, combined efforts of persons and nations is necessary to fight human trafficking. For instance the research community can support efforts to collect better data[36]. The legislators in many nations have the ability to come together, to share knowledge with experts on human trafficking so that wide-ranging laws on the matter can be drawn up. It is also clear that it could be possible for law enforcement officials in various and even neighbouring states can work together with service providers to protect and support victims and to develop successful prosecutions.[37] An organization which operates in the above manner is the United Nations Global Initiative to Fight Human Trafficking. The main objective of this organization is the putting together and safeguarding of a shared knowledge base, the creation and provision of necessary technical tools; the raising of global awareness; and mobilizing of resources. The UN.GIFTs main activities which could be used as a foundation to combat the trafficking of persons include: A. The Making of Enquiries The UN.GIFT held an occasion in Brazil in October 2007 which pointed towards the important point that regional characteristics must be understood in order for responses to be targeted[38]. Making enquiries and doing research expands global understanding of trafficking in persons in that there is a greater collection and analysis of information. Furthermore there is a better initiative and establishment of evidence-based reports on human trafficking. A global data collection effort has been initiated and an assessment tool to identify a standardized methodology to collect national data on human trafficking is being developed. In addition, a legislative assessment tool is being created to collect and analyse best practices in legislation against human trafficking and to review legislation and terminology.. B. Implementation By bringing together stakeholders such as companies, non-governmental organizations as well as governments themselves, the UN.GIFT has ensured that these stakeholders are

15 provided with dependable and current knowledge and the latest data in order to develop convenient tools to stop trafficking, protect victims and bring criminals to justice. Dependable and current knowledge provides for a response that will necessitate an evaluation tool which can aid in the identification of the best practices in designing technical assistance projects, which may for example be targeted at addressing the vulnerabilities of persons to trafficking. C. Knowledge As one may observe form the above, the UN.GIFT backs ground-breaking partnerships in order to increase knowledge and understanding of trafficking effects on countries and populations[39]. The organization provides an outline for consistent, detailed, joint action by connecting stakeholders who desire to end human trafficking. Campaigns and action strategies are optimized as terms for the means by which new partnerships can be formed and by which existing partnerships can be strengthened and consolidated are made[40]. 2.3 A REVIEW OF HUMAN TRAFFICKING INSTRUMENTS: LEGISLATION AND PROSECUTION The start of the twentieth century brought with it concern over the so called white slave trade, this encouraged the adoption of a succession of international agreements[41]. The first of these agreements was the International Agreement for the Suppression of White Slave Traffic of This particular agreement s main objective was to address the deceitful or abusive recruitment of women for prostitution in another country. After the International Agreement for the Suppression of White Slave Traffic, several agreements followed which ended in the introduction of Convention for the Suppression of the Traffic in Persons and of the Exploitation of the Prostitution of Others of This particular trafficking Convention was the one and only international instrument on human trafficking[42]. The issue of human trafficking has received attention from the international community especially because Human Trafficking often implies features that are characteristic of migration, labour, gender, and criminality. As pointed out earlier a feature of modern day trafficking is the involvement of organised criminal groups. The increase in such groups within the international community led an increasing number of countries to consider and adopt new laws, measures and strategies to deal with the problem[43]. The UN Convention against Transnational Organised Crime (CTOC) and its supplementary Protocols was adopted in 2000 and entered into force in September The centre of the Convention is on offences that make possible the profitmaking activities of organised criminal groups[44]. The CTOC s objectives relate to the prevention, investigation and prosecution of the partaking

16 in an organised criminal group; laundering of crime proceeds; corruption; and obstruction of justice[45] 2.3.1The Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children, Supplementing the United Nations Convention against Transnational Organized Crime (2000) The protocol is regularly citied by governments, NGOs and activists and scholars as the prime source of defining human trafficking.[46]a law enforcement instrument developed within the UN Crime Commission, the protocol contains strong law enforcement tools, although with a somewhat weak language on human rights protections and victim assistance.[47] Regardless, the protocol can be considered to be the main international human trafficking instrument. By ratifying the Protocol, countries entrust themselves to criminalize trafficking, investigate, prosecute and convict traffickers, undertake border control measures and a range of other measures such as protecting and assisting victims. The Protocol also sets up the outline for a harmonized international effort against human trafficking based on a universal definition of the practice. What's more the Preamble to the Protocol states that State Parties should act in concert against the practice: Effective action to prevent and combat trafficking in persons, especially women and children, requires a comprehensive international approach in the countries of origin, transit and destination that includes measures to prevent such trafficking, to punish the traffickers and to protect the victims of such trafficking, including by protecting their internationally recognised human rights. According to the United Nations Organisation for Drug Control (UNODC)[48], the definition of trafficking as contained in Article 3 of the Protocol is made up of three main elements. Firstly there is the action of trafficking. This refers to the actual recruitment[49], transportation, transfer, harbouring or receipt of persons. Secondly one observes the means of trafficking. This refers to the use of threats or use of force, deception, and coercion, abuse of power or position of vulnerability. The physical transportation of the trafficked persons, as well as the physical or psychological coercion and deception involved the offer.[50] In terms of the Protocol, consent is immaterial if it is obtained by means of coercion or deceit, including abuses of power without physical force.[51] If there is no realistic possibility of free and fully

17 informed consent being given or refused, it amounts to trafficking. Thirdly there is the purpose of trafficking which is always exploitation. Exploitation, which as mentioned in the protocol definition of trafficking in person includes 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 [52]. It should be noted that the exploitative result does not necessarily have to be satisfied for it to amount to a case of trafficking, if intent is discovered Application of the Protocol The purposes of the Protocol can be summed up as follows[53]: a) To prevent and combat trafficking in persons, paying particular attention to women and children; b) To protect and assist the victims of such trafficking with full respect for their human rights; and c) To promote cooperation among State Parties in order to meet those objectives The Protocol does compel state parties to implement domestic laws and policies to protect and assist trafficked persons, in accordance with international human rights standards[54] Article 2 of the protocol states that the domestic laws and policies in question must be implemented in accordance with international human rights norms. The Protocol for prevention of human trafficking is separated into four main sections; these being general provisions; provisions for the protection of victims of trafficking; provisions for the prevention of trafficking, cooperation and other measures, and final provisions. In terms of Article 4 of the protocol offences stipulated in Article 5 of the Protocol apply also to offences that are transnational in nature and involve an organised criminal group. Article 3.2 of the CTOC defines an offense as transnational if: (a) It is committed in more than one State; (b) It is committed in one State but a substantial part of its preparation, planning, directing or control takes place in another State; (c) It is committed in one State but involves an organized criminal group that engages in criminal activities in more than one State; or (d) It is committed in one State but has substantial effects in another State. Article 5(1) of the Protocol states that States Parties shall adopt such legislative and other measures as may be necessary to criminalise human trafficking, as defined Article 3. Article 5(2) goes on to require that States Parties to the protocol establish as criminal offences any attempt to commit human trafficking, serving as an accomplice in human trafficking, and

18 organising or directing other people to commit human trafficking.[55] People who are victims of Trafficking in terms of misunderstandings of article 5, may find themselves accused of organizing or attempting to traffic or knowingly participating or assisting in their own trafficking. To avoid this then, national Laws are required in terms of article 5 to clearly declare that a trafficked person is never punishable in connection with her or his own trafficking.[56] For all intents and purposes, the provisions of the CTOC apply to the Trafficking Protocol. It is for this reason that States Parties in terms of Article 8 are required to criminalise a number of acts relating to corruption. In terms of Article 9 legislative, administrative or other effective measures are made necessary to promote integrity and to prevent, detect and punish the corruption of public officials. The proceeds from human trafficking symbolize the forced labour, suffering and human rights violations suffered by human beings. In this respect Article 12 provides that State Parties are to include provisions in domestic legislation relating to the confiscation and seizure of proceeds of crime.[57] States Parties are expected to criminalise the laundering of the proceeds of a comprehensive range of trafficking offences in accordance with Article 6 of the CTOC. In terms of Article6 (3), States Parties must furthermore consider implementing measures to provide for the physical, psychological and social recovery of victims of human trafficking[58] The Trafficking Protocol, in combination with Article 31 of the CTOC, entails that States Parties should adopt comprehensive prevention policies. These policies include addressing socioeconomic conditions that add to the desire to migrate and consequently the vulnerability of victims to traffickers. These policies also provide for education and awareness-raising. The trafficking Protocol aims to put a stop to trafficking in persons by requiring State parties implement measures intended to make it more difficult for traffickers to use conventional means of transport and enter into countries. These measures ensure that border controls are effective and reduce instances where the misuse of passports and other travel or identification documents occurs[59] A variety of articles of the Trafficking Protocol hold specific obligations for a State Party to work together with other States Parties. For example cooperation is required regarding assistance to and protection of victims of human trafficking (Article 6), repatriation of victims of trafficking (Article 8), preventing of trafficking (Article 9), information exchange and training (Article 10), border measures (Article 11) and legitimacy and validity of documents (Article 13). The main difference between human trafficking and slavery is evidenced by the Slavery Convention 1926/7 which concentrates on the right of ownership.[60] In contrast when it comes to human Trafficking the aspect of ownership is exercised and retained when people are exploited and other industries. Both slavery and human trafficking include an element of

19 coercion. Coercion as contemplated by the trafficking protocol goes further and includes the lack of consent and deception. The broad definition of coercion has meant that concepts such Exploitation of prostitution and sexual exploitation, are included as components of the definition of human trafficking. In consideration of the Protocol, some delegates and NGOs insisted that all adult prostitution, including voluntary and even legal prostitution involving adults, should be classified as trafficking and forced a year-long debate at the negotiations on the subject.[61] Many delegates and Human Rights groups have understood that countries have different laws and policies on adult sex work. They have also understood that many countries would not sign the Trafficking Protocol if it forced them to change their prostitution laws. While voluntary participation by adults in sex work, factory work or any other work can be abusive and exploitative, it seems it is only considered trafficking if it equals forced labour, slavery or servitude. The resolution in the above regard has been to allow States to sign the Trafficking Protocol by leaving the question of what constitutes exploitation of prostitution and sexual exploitation open-ended. State parties involved in the Trafficking Protocol have been given the opportunity to decide for themselves how they will treat voluntary adult sex work[62]. Forced or coerced adult sex work like most other forced or coerced work and all child participation in sex work is covered in the Trafficking Protocol within the framework of slavery, forced labour or servitude. For this reason state parties to the protocol are allowed to exclude the terms exploitation of the prostitution of others or other forms of sexual exploitation from their domestic laws. Conversely state parties that decide to include these terms in their domestic law will have to define them clearly. 2.4 A DIFFERENTIATION BETWEEN SMUGGLING AND TRAFFICKING It can be complicated for law enforcement officials to establish whether a particular case is one of smuggling or trafficking. For this reason law enforcement personnel need to be familiar with both the trafficking and smuggling Protocols and their operational concepts. The main purposes of the human trafficking protocol have already been considered. The Protocol against the Smuggling of Migrants by Land, Sea and Air, Supplementing the United Nations against Transnational Organized Crime (2000), is the international convention responsible for the issue of smuggling. The main goal of the Protocol against the Smuggling of Migrants by Land, Sea and Air is to prevent and combat the smuggling of migrants while protecting the rights of smuggled migrants[63]. Smuggling is defined in the protocol as the procurement, in order to obtain, directly or indirectly, a financial or other material benefit, of the illegal entry of a person into a State Party of which the person is not a national or a permanent resident [64]. Smuggling is criminalised in terms of Article 6 of the Protocol.

20 The similarities between the smuggling of migrants and the trafficking of persons start with both of these entail moving human beings for profit. Although similarities do exist, smuggling and human trafficking are not the same. The differences between smuggling and trafficking are usually subtle. Classifying whether a case is one of human trafficking or migrant smuggling and related crimes can be very hard. This is largely due to trafficked persons who may start their journey by agreeing to be smuggled into a country illegally, but who later find themselves deceived, coerced or forced into an exploitative situation later in the process. Traffickers may offer what appears to be a situation akin to smuggling, to potential victims. But the purpose in this instance on the other hand, of the trafficker from the beginning is the exploitation of the victim. According to IOM[65], Smuggling may be the planned intention at the outset but a 'too good to miss' opportunity to traffic people presents itself to the smugglers/traffickers at some point in the process. Criminals may both smuggle and traffic people, employing the same routes and methods of transporting them. The relationship between these two crimes is often oversimplified and misunderstood. Smugglers as well as human traffickers are allowed to prosper and opportunities to combat both these issues are often missed. It is clear that it is important to understand that the work of migrant smugglers often results in some benefit for human traffickers[66]. Smuggled migrants may be victimized by traffickers and have no guarantee that those who smuggle them are not in fact traffickers. To aid in differentiating between smuggling and human trafficking four main aspects can be considered. 1. Consent: In terms of smuggling there is no element of coercion or deception. Simply smuggling is a voluntary act on the part of those smuggled. Furthermore, smugglers end their services when peoples smuggled reach their destination. Smuggling entails international movement. Trafficking victims do not consent to being trafficked. Where these victims initially consented, that consent has been rendered meaningless by the coercive, deceptive or abusive action of the traffickers[67]. 2. Exploitation: Migrant smuggling ends with the migrants' arrival at their destination, whereas trafficking involves the ongoing exploitation of the victim. 3. Transnationality: Smuggling is always transnational, whereas trafficking may not be. Trafficking can occur regardless of whether victims are taken to another state or moved within a state's borders. 4. Source of profits: When it comes to smuggling, profits are derived from the transportation of facilitation of the illegal entry or stay of a person into another county, while in trafficking cases profits are derived from exploitation. CHAPTER THREE

21 3.1 HUMAN TRAFFICKING IN NAMIBIA Namibia is located in the region between crisis prone central Africa and South Africa, a major destination for trafficked persons. Consequently it serves as a source, transit point and destination for refugees and persons trafficked from various parts of Africa. Essentially it is quite evident that, Namibia is no exception to the pandemic that is Human Trafficking. In terms of imperfect reporting, as found by the United States Department in 2010 Namibia is a country of origin, transit, and destination for foreign and Namibian women and children, and possibly for men subjected to trafficking in persons, specifically conditions of forced labour and forced prostitution. [68] It seems that Namibian women and children, including orphans, from rural areas are the most vulnerable to trafficking.[69]the United States Department Report states that, traffickers take advantage of Namibian children, as well as children from Angola and Zambia[70], through forced labor in agriculture, cattle herding, involuntary domestic servitude, charcoal production, and commercial sexual exploitation[71]. Namibian women are transported by traffickers to South Africa and South African women to Namibia to be exploited in forced prostitution. In 2009 an evaluation of Trafficking in Persons in Namibia was initiated by the Ministry of Gender Equality and Child Welfare (MGECW) in collaboration with the Ministry of Agriculture, Water and Forestry (MAWF) with the support of USAID (Namibia).[72] The Report acknowledges that Namibia is in fact a transit country because safe houses and victim support agencies in South Africa have reported that victims were trafficked through Namibia en route to Angola and Zambia for the purposes of sexual exploitation.[73] Namibia may be considered a country of destination; for the reason that the law enforcement in the country is not skilled and trained to detect human trafficking victims within the country. In terms of the report the Official Position taken by the Namibian Government is that, there is limited information available human trafficking. Trafficking in human beings is not as evident in Namibia as it would be in other countries, because of a lack of available information. An example of the lack of information lies with the following example; individuals from some of Namibia s neighbouring countries brought to the country for cattle herding purposes could spend months or even years at remote cattle posts without proper income and or recourse. And when they are detected by law enforcement agents they are handled as illegal immigrants[74]. In addition accounts from people who left Namibia, or who were tricked into believing that they would get proper employment elsewhere, only to end up being abused by the sweet talkers who lured them to such countries in the first place have began to flourish. Some causes of Human Trafficking in Namibia include poverty, lack of educational opportunities, and a lack of employment opportunities. There is a large supply of potential persons to be trafficked especially because many persons hope for a better future elsewhere. This creates fertile ground for human traffickers as youngsters who include both males and females can easily be lured away because of their vulnerable positions. Although there is no evidence that trafficking is a widespread phenomenon in Namibia, there has been at least one

22 case involving the transport of young Namibian women to South Africa for the purposes of sexual exploitation.[75] ANTI TRAFFICKING LEGISLATION IN NAMIBIA According to Zanobia Beatrix Barry[76] at the moment cases of a human trafficking nature are to a large extent undocumented, investigated or prosecuted in Namibia Mrs Barry makes reference to unconfirmed cases where two Namibian adolescent girls were kidnapped on their way home from school by individuals in a truck who smuggled them to South Africa, where they were then sexually abused. This case is currently being dealt with by South African authorities but has not been confirmed by the investigative authorities in Namibia and has not been confirmed as a case of trafficking.[77] The Namibia Constitution and relevant principles of international customary, humanitarian and human rights outlaw slavery and other slavery-like practices. Article 9 of the Namibian Constitution deals with Slavery and forced labour. It states that no one shall be held in slavery or servitude.[78] Namibia has in 2003 ratified the United Nations Convention against Transnational Organised Crime and the additional Protocol to Prevent Suppress and Punish Trafficking in Humans, especially women and children. The Protocol finds application in the country by virtue of Article 144 of the Namibian Constitution which reads unless otherwise provided by this constitution or Act of Parliament, the general rules of public international law agreements binding upon Namibia under this constitution shall form part of the law of Namibia. The Prevention of Organised Crime (POCA) which criminalises Trafficking in Persons in Namibia was enacted in the country in 2004[79]. POCA does not make a distinction between trafficking for commercial sexual exploitation and trafficking for non-sexual purposes but in terms of the act human trafficking carries a 50-year jail sentence or a $140,000 fine, the policing. Despite this however, awareness and detection of human trafficking remains virtually invisible and inaudible. Another Namibian law which touches on trafficking is the Labour Act of 2007[80]. Section 4 of the Labour Act prohibits forced labour and prescribes penalties of up to four years imprisonment or a fine of up to $2,700, or both. Further, Section 3 of the Labour Act prohibits a variety of forms of exploitative child labour, and it sets down penalties equal to those for other forced labour offenses. Punishments for the fore-mentioned crimes are sufficiently strict and are equal with those prescribed for other serious crimes, such as rape.[81] The US state department reports that during 2008 and early 2009 the Namibian police initiated various investigations into suspected cases of pimping and brothel-keeping, but the lack of appropriate anti-trafficking legislation prevented the prosecution of alleged perpetrators.[82]

23 The draft Child Care and Protection Bill is likely to address child trafficking offenses, among other crimes[83]. Government representatives have investigated several cases of child labour; and in all cases, offenders were issued orders that were in harmony with the 2007 Labour Act. None of these offenders were arrested or punished. In 2009, the Ministry of Labour removed 17 children found working on farms in Kavango in hazardous conditions and returned them to their parents. There are no specific procedures in place for referring trafficking victims for care in Namibia, even though the police are responsible for finding temporary shelter for all victims as well as medical assistance. Despite this the Namibian government has improved its efforts to protect human trafficking victims and ensure their access to appropriate services offered by nongovernmental entities, as it does not possess financial resources and capacity to directly care for victims. In 2009 the Ministry of Labour and Social Welfare acknowledged 17 cases of children illegally working in the charcoal industry, 88 cases of children performing hazardous labour in other work places, and 57 cases of children in forced labour[84]. The Ministry of Gender Equality and Child Welfare also dealt with three trafficking cases. In all three of these cases the victims were Zambian. The ministry also afforded social workers to work in partnership with the police, who counsel or otherwise assist victims of violent crimes, including human trafficking. Law enforcement and other officials have also referred victims to NGOs and other bodies that offer short-term shelter facilities. The fact is there are no long-term shelter facilities or services designed to meet the specific needs of victims of trafficking existed in Namibia. The Namibian Woman and Child Protection Unit of the Namibian Police Force have examination rooms in Namibian hospitals that cater for treatment of victims of violent crimes. 3.2 HUMAN TRAFFICKING IN SOUTH AFRICA Like Namibia, South Africa is a country that is a source, transit, and destination country for trafficked men, women, and children. Trafficking through South Africa of nationals from other African countries to destinations in Europe and Southeast Asia has been recorded in several studies. Places within South Africa like Johannesburg, Cape Town, Durban, and Bloemfontein are some just some of the cities which children are largely trafficked to. Many girls are trafficked for the purposes of commercial sexual exploitation and domestic servitude; at the same time as boys trafficked for forced street vending, food service, begging, crime, and agriculture[85]. Furthermore South African criminal organisations and street gangs arrange child prostitution in a number of South Africa s cities, which are also frequent destinations for child sex tourists.[86] Ukuthewala is a tradition still practiced in South Africa in the small villages in the Eastern Cape. This tradition dictates the forced marriage of young girls to adult men leaving these girls defenceless against forced labour and commercial sexual exploitation.[87] South African criminal organisations and street mobs arrange child prostitution in a number of South Africa s cities, which are frequent destinations for child sex tourists. To a lesser degree than with child