BILL WATCH 1/2014
[8th January 2014]
Both Houses of Parliament are in Recess until Tuesday 19th November
Anti-Trafficking in Persons Regulations Gazetted under Presidential Powers (Temporary Measures) Act
On 3rd January, in Statutory Instrument 4/2014, the President gazetted the Presidential Powers (Temporary Measures) (Trafficking in Persons Act) Regulations. These regulations are designed to give temporary legal effect in Zimbabwe to Zimbabwe’s obligations under the United Nations Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children [commonly known as the “Palermo Protocol” and referred to as such in the rest of this bulletin]. [SI available. See addresses at the end of this bulletin.]
Commencement of regulations
Apart from two provisions, the regulations came into force immediately, i.e. on 3rd January. The President will bring the remaining two provisions into force later, on a date to be fixed by him by statutory instrument. [See further below.]
Period of validity of regulations
Being a temporary measure only, the regulations will be in force for a maximum of 180 days, i.e., until midnight on 2nd July 2014. Section 6 of the Presidential Powers (Temporary Measures) Act, under which the President made the regulations, lays down that regulations made under the Act “expire and cease to have any effect immediately before the 181st day following the(ir) date of commencement”.
Follow-up Bill essential
To ensure the continuity of anti-trafficking provisions in our law, the Government will have to introduce a Bill for a Trafficking in Persons Act to replace these regulations – and the Bill will have to be brought to Parliament in time for it to be passed by both Houses of Parliament and be gazetted as law on or before 2nd July.
Why Temporary Measures instead of an Act of Parliament?
The preamble to the regulations claims that the regulations are so urgently needed that it is “inexpedient to await passage through Parliament of an Act to deal with” the situation.
Comment: The urgency is self-created. Parliament approved the Palermo Protocol in July 2012. But the Government failed to follow this up promptly, and Zimbabwe’s instrument of accession to the protocol was not deposited until 13th December 2013, which means that the protocol will become binding on Zimbabwe with effect from 12th January 2014.
This extraordinary delay is regrettable and will need to be explained to Parliament by the responsible Ministers [Home Affairs and Foreign Affairs]. Preparations for giving effect to this important international agreement have been under way for years, and the necessary draft Bill was prepared long ago. The President told Parliament in 2011 that the Bill to domesticate the protocol would be presented during the 2011-2012 session. This did not happen, but when obtaining Parliament’s approval of the protocol in July 2012, the then co-Minister of Home Affairs Theresa Makone told the Senate that she would be back with the necessary Bill during the forthcoming 2012-2013 Parliamentary session. [See Bill Watch 27/2012 of 18th June for notes on the protocol.]
The Government will now be able, however, to claim progress when next reporting to the UN Human Rights Committee, something likely to fall due before a Bill can be taken through Parliament.
What the Regulations Say
The regulations are a hasty and slightly awkward adaptation of a draft Bill for the eventual Act.
Provisions that are in force from 3rd January 2014
After a brief two-paragraph preamble citing the enabling Act, section 1 of the regulations states the title of the regulations as set out in the first paragraph of this bulletin. Thereafter, without any real explanation, there is set out the text of a Trafficking in Persons Act consisting of a preamble, ten sections and two schedules. The Second Schedule sets out the text of the Palermo Protocol, without satisfactorily explaining whether it constitutes substantive Zimbabwean law or, which is more likely, has been included only for reference purposes or for assisting courts and administrators in interpreting the provisions of the Act.
Definitions Section 2 of the Act sets out definitions.
New offence of trafficking in persons Section 3 of the Act, a long and detailed provision, creates this new offence using words which adapt those of the definition of “trafficking in persons” in the Palermo Protocol. The object is to create a specific offence for enforced or coerced exploitation of persons for purposes of prostitution or other forms of sexual exploitation, forced labour and similar practices. Trafficking covers not only transporting of individuals but also acts of recruitment, harbouring and receiving of victims and related conduct such as tampering with identity or travel documents and production of false documents. Internet service providers operating in Zimbabwe must not allow any on their servers any sites that contain information promoting trafficking. Both cross-border and internal or domestic trafficking is covered; this is important, as trafficking is both a cross-border and domestic problem.
Factors which do not constitute a defence It is no defence to a charge of trafficking that the victim – or his or her parents or guardians – consented, or that the victim had engaged in prostitution or pornography, or that what was done was permitted by customary or religious practice.
Penalties Mandatory penalties on conviction require a sentence of at least ten years’ imprisonment or life imprisonment, where the crime is committed in “aggravating circumstances” [comprehensively defined] – unless there are special circumstances [not defined]. Where there are no aggravating circumstances or where the court finds special circumstances, the maximum penalty is a fine of $5000 of imprisonment not exceeding ten years.
Powers of law enforcement agencies Section 4 lists the powers of law enforcement agents, upon reasonable suspicion, to stop any person and vessel and question any person to determine whether he or she is a trafficker or involved in trafficking. Premises and vessels may also be searched. [Comment: The unexplained use of the term “vessel”, in the absence of references to other modes of transport, is likely to cause difficulties in application and interpretation.]
Protection and compensation of victims Section 5 provides for the protection of victims by making applicable to victims of trafficking the existing statutory provisions for protection of vulnerable witnesses and the protection of privacy, reputation and other rights. Also made applicable on conviction of a trafficker are existing provisions for compensation of the victim for property loss or damage, physical or psychological injury and loss of income or support.
Forfeiture of proceeds of trafficking Section 6 makes the confiscation and forfeiture provisions of the new Money Laundering and Proceeds of Crime Act applicable to convicted traffickers.
Extraterritorial jurisdiction of Zimbabwean courts Section 7 makes comprehensive provision for Zimbabwean courts to try crimes of trafficking in persons even if committed outside Zimbabwe; for example:
- · a Zimbabwean citizen or ordinary resident of Zimbabwean may be tried in a Zimbabwean court even where he or she has committed the crime outside Zimbabwe
- · a Zimbabwean court may try a Zimbabwean citizen or ordinary resident for the crime of trafficking of persons, wherever the crime was committed.
Provisions to be brought into force later
Sections 8 and 9 of the Act are to be brought into force later, presumably when the Ministries concerned are in a position to complete the necessary administrative arrangements and have been allocated the necessary financial resources.
Centres for victims Section 8 obliges the Minister of Labour and Social Services to set up centres for victims of human trafficking, providing such services as counselling, rehabilitation, reception and care. There must be at least one centre per province.
Inter-Ministerial Anti-Trafficking Committee Section 9 provides for the eventual setting-up of an inter-Ministerial committee, with largely advisory, educational and information-gathering functions. Detailed provisions for the functioning of the committee are made in the First Schedule.
If these regulations are an indication of the proposed contents of the Bill that must come to Parliament, that Bill is going to need some improvements. It is to be hoped that the responsible Ministry and Parliament will allow ample time for interested parties to make the necessary representations, taking due account of the need to have a permanent substantive Act in place by the middle of this year .
Documents Available from Veritas
[see addresses below]
- · SI 4/2014 – the regulations discussed in this bulletin
- · Palermo Protocol
- · Presidential Powers (Temporary Measures) Act
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