Saturday, June 11, 2011

South Africa: South Africa’s Proposed Anti-trafficking Bill Needs Fine Tuning

Source: ISS

South Africa’s Proposed Anti-trafficking Bill Needs Fine Tuning

Tonbara Ekiyor, Intern, Organized Crime and Money Laundering,
ISS Cape Town Office

The South African Prevention and Combating in Trafficking in Persons (TIP) Bill was tabled and fast tracked through the Parliamentary process prior to the 2010 Soccer World Cup, yet one year later it now appears to be on hold. There was heightened attention around trafficking in persons due to the expectation that the World Cup in South Africa would see a rise in TIP. Fortunately, however, the bill was not passed in its present format, as several key adjustments still need to be made. This includes a clear and distinct definition of TIP, to ensure that the proposed bill provides an effective means to tackle human trafficking in South Africa.

Molo Songololo, a Cape Town based NGO, released two reports in 2000 detailing the prevalence of trafficking of women and children in the region. The TIP bill draws on some of the findings of these reports. They highlighted the fact that an increasing number of women and children, particularly from Angola and Mozambique, but also from beyond the region as far as Ethiopia and Senegal end up on the streets of Cape Town and Johannesburg as sex workers. The report calls on governmental and non-governmental organisations to come together to combat the surge of human trafficking in the region through the development of legislation to increase detection and the prosecution of these crimes. However, there are several problems within the report that make the development of such legislation problematic. In research analyst Robyn Pharaoh’s review of them, she highlights several definitional issues with the concept of human trafficking that focus primarily on trafficking of girls and women for sexual exploitation, which implies that little is known about trafficking for other purposes. Pharoah also highlights the problem that sexual abuse of students by teachers has come to be placed under the human trafficking category due to the broad interpretation of the concept.

South Africa has signed the UN Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children also known as the “Palermo Protocol”. Signatories are required to adopt necessary legal steps to establish criminal offences relating to human trafficking. The bill defines human trafficking in line with the Palermo Protocol as “the recruitment, transportation, transfer, harbouring, or receipt of persons, by means of the threat or use of force or other forms of coersion, abduction, fraud, deception, of the abuse of power or of a position of vulnerability or of the giving or receiving of payments or benefits to achieve consent of a person having control over another person, for the purpose of 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”, and provides guidelines as to how those found guilty of human trafficking are to be prosecuted. The bill proposes the revision of other Acts such as the Immigration Act and the Criminal Procedure Act that bring them in line with the provisions of the proposed TIP bill.

A recent study by the ISS on organised crime in Southern Africa highlights that the differences between “people smuggling” and “human trafficking” stems from the question of motive. Annette Hübschle from the ISS argues that the “conflation of the two divergent concepts has led to a disproportionate representation of the threat of human trafficking to the region”. By extension the legislation put forward to combat it, by not taking these differences into account, would incorporate the faulty understanding of what the concepts mean. The TIP bill stipulates that victims of human trafficking are to be compensated by the perpetrator not prosecuted for the crimes that they were forced to commit, and repatriated after a certain amount of time. However, there is no provision for a manner in which victims would be separated from willing criminals. As the differentiation between trafficked and smuggled persons lies in the intent of the individual at the point of departure, difficulty arises in catering for victims of human trafficking and at the same time prosecuting illegal migrants, if intent cannot be established.

Many regional and local people in search for greener pastures move to Cape Town and Johannesburg. Various intergovernmental bodies repeatedly warned that the run-up to the 2010 Soccer World Cup would see an increase in the number of people trafficked into South Africa. However, they fail to take into account the desire of people from other parts of the region to benefit from the proposed economic growth to be accrued from the event, which would see an influx of “migrants’ into South Africa. This aggravates the definitional problem of human trafficking as “migrants” could either be people that were smuggled or trafficked.

The incidence of TIP in the region adversely affects the efforts to implement legislation combating it in South Africa. This is due to the lack of comprehensive legislation within the region dealing with TIP. The trans-border nature of the crime requires a regional structure that addresses the jurisdictional problems that arise from human trafficking across countries. Charles Goredema of the ISS Cape Town in a review of organized crime in the region calls for a regional protocol on human trafficking similar to that on organized crime that provides a framework for criminalizing and tackling TIP in the region.

The TIP Bill also draws on findings from an investigation carried out by the South African Law Reform Commission in 2008 that linked TIP to poverty, war and political instability. It is argued that in order to effectively fight human trafficking, it would be necessary to tackle the underlying economic problems that facilitate trafficking. Although this appears to be a logical connection, as it seems, addressing the economic needs of would be traffickers and those who are vulnerable to trafficking would lead to a reduction in human trafficking. A study done by the International Organization for Migration (IOM) into the effects of providing economic assistance to those involved in human trafficking has shown that the linear connection between economic deprivation and human trafficking is not necessarily that straightforward. This is due to the fact that the standard of living in the region is not believed to have drastically fallen prior to the suggested increase in trafficking in persons.

The requirement that the TIP bill should be in line with international legislation stipulated in the “Palermo Protocol” is a problematic requirement in implementing the bill, due to the differences between the nature of human trafficking internationally and the South African experience. Motivations, which are indigenous to South Africa such as muti murders, or the belief that sexual intercourse with children would cure HIV/AIDS, are not taken into account by international legislation on trafficking. In addition, inland or domestic trafficking, which is the movement of people within the country requires special attention. The issue of ukuthuwala (forced marriage) in the Eastern Cape and Kwazulu-Natal supports the need for a formulation of laws acclimatised to South Africa. Ukuthuwala is a form of inland human trafficking that sees young girls being forcefully removed from their homes and taken to the homes of their “admirers” to become wives.

The laws that are to be developed should be cognisant of these nuances. It is necessary that they take into account definitions of TIP that explicitly deal with the South African experience. The inaccurate classification of what human trafficking entails may marginalise victims that do not fall under generalized definitions, and dilutes the efforts at combating it, by not explicitly differentiating “human trafficking” from “people smuggling”. It is thus a blessing in disguise that efforts to push the legislation through parliament before the World Cup failed to materialise.