BILL WATCH 8/2014 of 20th February

BILL WATCH 8/2014

[20th February 2014]

Regulations on Human Trafficking

Part II

Overview and Critique

Overview

The regulations:

  • ·      create the crime of trafficking in persons, i.e. recruiting or transporting persons for the purpose of prostitution, forced labour, slavery, the removal of organs, and other forms of exploitation [section 3];
  • ·      make the crime of trafficking an extra-territorial crime, which means that our courts can try offenders even if they committed the crime outside Zimbabwe [section 7];
  • ·      give law enforcement agents such as the police and immigration officers power to detect and investigate trafficking by interrogating people, requiring them to produce documents, and conducting searches [section 4];
  • ·      give courts the following powers:
    • ·      when trying offenders for trafficking, courts may take measures to protect victims of the crime, and must order convicted traffickers to compensate their victims [section 5];
    • ·      courts may order the confiscation of any property used to commit the crime of trafficking and may deprive offenders of any profits they may have made from the crime [section 6];
    • ·      oblige the government to establish centres for the reception and rehabilitation of victims of trafficking [section 8];  and
    • ·      establish an inter-ministerial committee to formulate and implement measures to combat trafficking [section 9].

Evaluation of the Regulations

The regulations go some way towards implementing the Palermo Protocol but they do not go far enough and they contain several defects:

1.  The definition of the crime of trafficking

Section 3 of the regulations, which makes human trafficking a crime, is long and complicated.  So complicated, indeed, that it is doubtful if courts and law enforcement officers will be able to understand it, much less implement it.

The regulations state that the crime of trafficking can be committed in at least three different ways:

1.   by transporting or conveying individuals involuntarily, i.e. through force, threats or the use of drugs or by deception or abuse of power;

2.   by transporting or conveying individuals voluntarily, i.e. with their consent, for an unlawful purpose;

3.   by assisting, in various specified ways, other people to commit the crime.

In the first way in which the crime can be committed, by conveying individuals involuntarily, it does not require an unlawful purpose.  Hence if a police officer arrests a suspect and conveys him to a police station, the police officer is guilty of trafficking!

The definition of “unlawful purpose”, which is an element of the second way in which the crime can be committed, is defined so as to exclude some of the illegal purposes for which people are trafficked, for example, sexual exploitation or recruitment as child soldiers.  Note: UNODC recommend that the definitions given in the Palermo Protocol should be more closely followed in national legislation – not only are they carefully worked out to criminalise the act, means and purpose of trafficking, but more uniform definitions enables closer trans-State cooperation and also global gathering of statistics, etc.

The list of aggravating circumstances is a closed list leaving no room for a court to find other circumstances to be aggravating.  As rape is one of the most common ways of subduing women in the trafficking business, it should be listed separately as an aggravating circumstance.

The penalties are confusing: a minimum of 10 years’ imprisonment for most forms of trafficking, but it is not always clear when the minimum penalty can or must be imposed [there is also an odd reference elsewhere in the regulations to 15 years’ imprisonment].

2.  Protection, compensation and rehabilitation of victims

Section 5 of the regulations, which gives courts power to make orders protecting victims of trafficking, applies only to victims who are giving evidence in court; it does not protect the victims before and after their court appearances, and does nothing for victims who are not called to give evidence.

Section 5 gives the trial court the sole power to award compensation.  Criminal courts do not always have access to enough information to be the best assessors of compensation, and the victims or their representatives should therefore be free to access a civil court for compensation.

The centres set up under section 8 of the regulations, where victims are to be housed and rehabilitated, are unlikely to be effective because their funding must come from the government.  There is no provision for outside funding, for example from non-governmental organisations or international donors.

3.  Inter-Ministerial Committee

Section 9 of the regulations sets up a 14-person Anti-Trafficking Inter-Ministerial Committee to formulate national plans against human trafficking, to propose and implement strategies against trafficking, to promote the rehabilitation of victims, and to make the public aware of trafficking and its problems.  How effective this committee will be is open to doubt:

  • ·      All its members are civil servants or public officers such as police and immigration officers.  There is no specific provision for local welfare organisations, churches, NGOs such as Childline or international bodies such as the International Organisation for Migration [IOM], the International Labour Organisation [ILO] or the UNODC to be represented on the committee.
    • ·      There is no provision for gender balance on the committee, and victims of trafficking are predominantly women and children.
    • ·      The committee cannot do anything without the approval of the Minister of Home Affairs.  This could be a recipe for paralysis.

4.  Other corrections needed

In addition to the above criticisms there are other flaws that need to be corrected:

In section 2, Interpretation – the definitions of terms used in the regulations need revision, e.g. the term “unlawful purpose” has a wider ordinary legal meaning than the one in the definition and to avoid confusion should be replaced by “exploitation”, which should be defined to include all forms of exploitation covered in the Palermo Protocol, including recruitment of child soldiers, etc.

Throughout there are careless drafting mistakes that need correcting, e.g. section 4 gives law enforcement agencies suspecting trafficking the power to stop persons or vessels, but not motor vehicles; and section 6 refers to the wrong Act when providing for confiscation of proceeds of trafficking and uses the word “obtainable” instead of “detainable” in reference to ”cash detainable offence”..

These sorts of errors abound but are simple to correct.  It is the substantive contents of the Act to replace the regulations that needs to be worked on.

General Omissions in the Regulations

Apart from the problems with specific provisions which have been noted above, the regulations have some more general defects:

  • ·      There is nothing to promote co-operation with other States, which is one of the purposes of the Palermo Protocol “To promote cooperation among States Parties in order to meet those objectives.” [article 2(c)] and also in article 9.4 & 5 and 11].
  • ·      In addition to inter-State co-operation, the government should be required to co-operate with institutions such as Interpol, the IOM and other UN agencies.
  • ·      There is no specific provision for involving non-governmental organisations in policies and programmes to combat trafficking.  The Palermo  Protocol states “ Policies, programmes and other measures established in accordance with this article shall, as appropriate, include cooperation with non-governmental organizations, other relevant organisations and other elements of civil society. [article 9.3].
  • ·      There is nothing to permit foreign victims of trafficking to remain in Zimbabwe in appropriate cases [articles 7.1 and 8.2 of the Protocol], and apart from a vague provision in section 7(3), there are no specific provisions to facilitate the return of Zimbabwean victims to Zimbabwe [article 8 of the Protocol].
  • ·      Apart from the inter-ministerial committee, there is no provision for co-operation between law enforcement agencies and Ministries and agencies in Zimbabwe which have a role to play in combating trafficking [article 10.1 of the Protocol].
  • ·      There is no provision for requiring commercial carriers such as airlines and bus companies to take measures against trafficking [article 11.2 & 3 of the Protocol].
  • ·      There is no provision for denying visas and entry to people who have been implicated in trafficking [article 11.5 of the Protocol].
  • ·      Very importantly, there has been no attempt to align our law with the laws of neighbouring countries.  Zambia, Mozambique and most recently South Africa have all enacted legislation against human trafficking.  Inter-state co-operation on human trafficking is vital, and co-operation will be greatly facilitated if the countries in the SADC region have the same or similar laws on the subject.
  • ·      There is no provision for ensuring a national policy and other adjunctive measures to the legislation to combat trafficking.
  • ·      The functions of the inter-ministerial committee are vague, some steps to combat trafficking should be provided for not just by this committee, but also in the regulations:

-       on prevention – education, awareness-raising, etc.

-       provision for training law enforcement agencies, immigration officials, social workers et to deal with trafficking.

  • ·      There should be provision for a central reporting mechanism so that action such as court cases and victim protection can be coordinated.
  • ·      There should be provision for collection of statistics.

Conclusion

The regulations represent a start towards implementing Zimbabwe’s obligations under the Palermo Protocol, but a great deal needs to be done before our law against human trafficking is clear and effective.  It is to be hoped that, for the new Bill that has gone to the Government Printer and will, if passed, replace these regulations, the responsible Minister took advice from the IOM, UNODC and civil organisations within Zimbabwe, and also looked at other SADC legislation against trafficking.

In particular the South African Preventing and Combating of Trafficking in Persons Act is exceptionally well crafted and drafted.

If there are still defects and omissions in the new Bill it will be up to the Parliamentary Portfolio Committee [Defence, Home Affairs and Security Services] to make recommendations to improve it and also for Parliamentarians as it goes to each house to contribute towards Zimbabwe getting a the best law possible against the scourge of human trafficking.

 

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