BILL WATCH 7/2014 of 20th February

BILL WATCH 7/2014

[19th February 2014]

Regulations on Human Trafficking

Part I – Background

On the 3rd January this year the Government published the Presidential Powers (Temporary Measures) (Trafficking in Persons Act) Regulations, 2014, which are intended to give effect to the Palermo Protocol [see more about this international agreement below] 

It was surprising that these regulations were rushed through under the Presidential Powers Act [which incidentally is no longer constitutional and should be repealed – see Constitution Watch 1/2014 of 25th January]. The reason for the haste was that these regulations, together with the regulations on money laundering and piracy gazetted at same time, were to bring our law into line with international standards imposed by the Financial Action Task Force, the international body responsible for setting and enforcing standards against money laundering and financing of terrorism.  Amendments to our law were needed urgently because without them the Financial Action Task Force could have placed an international embargo on our financial system, which would have crippled the economy by preventing money transfers both from and to other countries.

[Note:  Although gazetting regulations under the Presidential Powers (Temporary Measures) Act is no longer constitutional, it is unlikely that a challenge will be brought against them on this basis.  There can be no objection to the purpose of the regulations, nor their urgency, and if any one did take a court case it would probably not be heard before the regulations are replaced by an Act of Parliament.]

The regulations will expire on 2nd July, six months after they were published, and before then will have to be replaced by an Act dealing with trafficking.  The government presumably envisages that the Act will be identical, or very similar, to the regulations.  If this is so, it would be most unsatisfactory, as the regulations done in haste are badly drafted and leave out important aspects that should be in such a law.

It was thought that stakeholders and interested parties would have a few months to lobby government to ensure that the Bill would be an improvement on the gazetted regulations.  But in fact such a Bill has been sent to the printers although it has not yet been published.  So those wanting to lobby to ensure the eventual Trafficking in Persons Act is an improvement on the regulations will have to act promptly.

Before examining the regulations and suggesting how they can be improved, the reasons why anti-trafficking legislation is important will be examined.

The Nature and Extent of Human Trafficking

Human trafficking is the illegal trade in and exploitation of human beings.  It takes place throughout the world and thrives on the demand for sex workers and cheap labour in particular.  It is highly profitable and often organised by gangs linked with other illegal activities such as the arms trade, the drug trade, smuggling, assisting illegal migration, money laundering and financing of terrorism.  The victims of human trafficking — men, women and children — are often from poor countries in search of better prospects in life and have been lured by false promises or forced into situations where they are subsequently exploited for profit.

Most statistics on trafficking are estimates because of its underground and illegal nature.  The UN estimates that nearly 2,5 million people from 127 different countries are being trafficked around the world at any given time. There are reports that the number of persons sold into some sort of slavery in the last 100 years has exceeded the total number of the infamous West African Slave Trade of previous centuries.

Trafficking is a highly lucrative business:  it is now the world’s fastest growing criminal industry whose profits are exceeded only by those of the drugs and arms trades.  Its links to drugs and arms crime syndicates, which are also often involved in organised smuggling of migrants across borders, make it difficult to bring traffickers to justice.

Trafficking in SADC and Zimbabwe

By and large, the movement of human traffic in SADC is from countries with poor economies and refugee populations into South Africa, although there is some trafficking to European and Far East and North American destinations.  Women from Thailand, China, and Eastern Europe are also trafficked to South Africa.  Zimbabwe has been indentified as a source, transit, and destination country for men, women, and children trafficked for the purposes of forced labour and sexual exploitation by the United Nations Office on Drugs and Crime [UNODC], the UN agency implementing the struggle against human trafficking.  However, as there has been no law criminalising human trafficking as such, no prosecutions and convictions have been recorded in Zimbabwe for trafficking in persons, nor has anything official being done to corroborate word of mouth reports on the fate of victims. Without human trafficking being made a criminal offence in its own right it is difficult to gather reliable statistics on its extent.

Background to Producing a Law Against Trafficking

An Inter-ministerial Task Force on Human Trafficking has been set up, and since 2007 the Ministry of Home Affairs has been working on a law against human trafficking assisted by various stakeholders in particular the International Organisation of Immigration.  The work took into consideration a model law made available by UNODC.  The last Parliament agreed to ratifying the Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children, Supplementing the United Nations Convention Against Transnational Organised Crime, known as the “Palermo Protocol”, and Zimbabwe’s instrument of ratification was deposited with the UN on 13th December 2013, meaning that the Protocol entered into force for Zimbabwe on 11th January 2014.   The President mentioned that there would be legislation against trafficking in his speech opening the 8th Parliament on 17th September 2013.  With so much time spent in preparation for a law against trafficking, it is a pity that that the rushed publication of regulations does not fully build on previous drafting work and nor does it fulfil all the legislative demands of the Palermo Protocol.

The Palermo Protocol

The “Palermo Protocol” is so called because it was agreed at a United Nations conference in Palermo, Italy, in 2000.  It came into force on 25th December 2003.  It has since been adopted by 142 states, including Zimbabwe.

Its purposes are:

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 States Parties in order to meet those objectives.

It obliges signatories to introduce national legislation to criminalise all aspects of trafficking, and to implement other provisions of the protocol to support educational, social and cultural measures to prevent trafficking, victim rights and assistance, and prevention of re-victimising and stigmatising of victims, training of enforcement agencies, and efficient international co-operation in preventing trafficking and investigating and prosecuting traffickers.

To summarise:  the Protocol embodies the “3 Ps” of countering human trafficking, namely:

  • ·      Prevention:  reducing both the vulnerability of potential victims and the demand for exploitation in all its forms
  • ·      Protection:  ensuring adequate protection and support to those who fall victim to traffickers
    • ·      Prosecution:  supporting the efficient prosecution of the criminals involved.

Note:  when Zimbabwe ratified the Protocol it made the following Reservation: “The Government of the Republic of Zimbabwe hereby declares that it enters a reservation to Article 15(2) [which provides for arbitration on disputes between States Parties to the Protocol] that where Parties fail to resolve their dispute through arbitration any Party may refer the dispute to the International Court of Justice.”

To be continued in Part II: Overview and Critique of the Regulations on Human Trafficking

Documents Available from Veritas Website

SI 2014-4 – Presidential Powers (Temporary Measures) (Trafficking in Persons Act) Regulations

Protocol to Prevent, Suppress And Punish Trafficking In Persons, Especially Women and Children [Palermo Protocol]

South African Prevention and Combating of Trafficking in Persons Act 2013

Parliamentary Briefing Paper on Human Trafficking 2011

Veritas makes every effort to ensure reliable information, but cannot take legal responsibility for information supplied

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