Routledge Handbook of Human Trafficking
Page 15
The third and most important promoting factor is the cultural and religious practice of fostering children in Africa which promotes trafficking – especially the practice of sending children to other relatives for the purpose of education or apprenticeship. Again, the cultural beliefs and superstitions around the efficacy of traditional oaths and rites performed by native doctors at shrines instil fear in trafficked persons not to report their victimisation. Furthermore, some cultures and religions in Africa support domestic servitude, slavery and practices similar to slavery, of poorer people considered of lower caste.39 The involvement of family or community makes the situation more complex. When trafficking is internal, cultural and historical internal migratory patterns and family/community support systems intersect to make identification and intervention intricate. Moreover, victims are often hidden in the unregulated sectors of the community and economy, doing sex work, domestic work, begging or farm labour, or are engaged in armed conflicts.
The fourth point is that traffickers exploit weak legislation, loopholes and even borderless policies such as those found in the ECOWAS – West African sub-region – and the SADC, as well as gaps between jurisdictions. Women and girls are disproportionately affected by THB. This is primarily caused by prevailing social patriarchy, discrimination in law and in practice, and socio-cultural and economic factors. Discrimination and marginalisation predisposes women to being trafficked in many source countries. Also inherent is the embedded culture of exploitation of the girl-child in many cultures of sub-Saharan Africa: where the burden of caring and fending for their families is easily transferred to them; which they in turn accept and begin to carry out through any means, for the purpose of family survival, and to earn honour as ‘daughters’. It is in the pursuit of such family-assigned responsibility that they become highly vulnerable to being trafficked and exploited by human traffickers.
The fifth issue is the fact that war, conflict and terrorist activities affect social migration patterns, and make individuals, in particular internally displaced persons (IDPs), more vulnerable to becoming victims of trafficking. In Nigeria, the Boko Haram insurgency led to the abduction and trafficking of the Chibok girls, yet to be found. This has happened also in Uganda with the Lord’s Resistance Army (LRA), which abducted and trafficked thousands of young men and women, as either fighters or sex slaves. Furthermore, the reality of IDPs and refugees in many countries heightens insecurity and the risk of vulnerability to trafficking, and to other forms of sexual and gender-based violence. THB became an issue in the post-conflict States of Sierra Leone and Liberia; the civil conflict in Libya made the borders extremely porous and an attractive route for traffickers and migrant smugglers moving their victims to Europe through the Mediterranean Sea.
Sixth is poor governance, which engenders an environment in which traffickers prosper, due to ineffective, absent or corrupt public administration. Sometimes, there is a lack of willingness, especially in transit countries,40 to identify potential victims, so that they do not have to deal with the consequences of the trafficking.
There are various challenges associated with the effort to combat trafficking in Africa. These include: a lack of, or incomplete, data; lack of regional/sub-regional co-operation; inability to distinguish trafficking from normal migratory patterns – especially internally; the clandestine nature of THB – as often the community or family of the victim is involved, making the situation more complex; and, since victims are hidden in the community, there is often limited political will to tackle trafficking. Not enough is being done to tackle the root causes of trafficking, and there is a risk that victims could also be criminalised.
Legal, policy and institutional frameworks for combating trafficking in human beings
International context and commitments of African States
Most African States have ratified the Palermo Protocol,41 which has been a galvanising legal force in deepening and clarifying States’ understanding of THB, as well as their responsibility to prevent and combat THB through international co-operation and the promotion of a victim and human rights-centred approach.42 Other relevant treaties have also been widely ratified by African States, including the Convention on the Rights of the Child,43 the Convention on Elimination of All Forms of Discrimination Against Women,44 and the Optional Protocol to the Convention on the Rights of the Child on the Sale of Children, Child Prostitution and Child Pornography (2000).45 Others include the ILO Convention on Forced or Compulsory Labour (No. 29) (1930)46 and the Protocol of 2014 –supplementing and reinforcing the Forced Labour Convention by addressing gaps in its implementation. Also of note is the International Labour Organization Convention No. 189 (2011), concerning decent work for domestic workers.
Regional approach
There is a host of regional legal and policy frameworks with standards intended to fight THB, including the African Charter on Human and Peoples Rights,47 the African Charter on the Rights and Welfare of the Child,48 and the Protocol to the African Charter on the Rights of Women in Africa.49 The latter two instruments, at Articles 29 and 4(2)(g), respectively, prohibit trafficking in children and women, and require States to prosecute the perpetrators and protect those at risk.
African States, under the auspices of the African Union and other sub-regional organisations, have made several commitments to end THB. The 2006 AU/EU Ouagadougou Action Plan to Combat Trafficking in Human Beings, Especially Women and Children is a pioneering initiative in that regard. In that Plan, THB within and between States is unequivocally characterised as a “scourge” to human beings.
The Revised AU Plan of Action on Drugs Control and Crime Prevention (2007–2012) was aimed at combating trafficking from crime control perspectives.50 Furthermore, the AU adopted, in 2008, the Decision on Strengthening the Cooperation between the United Nations and the African Union in Combating Trafficking in Human Beings.51 That decision contributed to the negotiation, and subsequent adoption in 2010, of the Global Plan of Action to Combat Trafficking in Persons. The African Union Commission Initiative against Trafficking (AU.COMMIT)52 Campaign, launched in 2010, was also geared towards effective implementation of the Ouagadougou Action Plan to Combat Trafficking in Human Beings, Especially Women and Children.53 Also relevant is the AU’s Migration Policy Framework for Africa.54 The Framework provides a comprehensive and integrated policy guideline on labour migration, border management, migration data, the human rights of migrants, irregular migration (including migrant smuggling), human trafficking, return and re-admission.
Other initiatives include the Joint ECCAS/ECOWAS Plan of Action against Trafficking in Persons, Especially Women and Children in West and Central Africa (2006–2009) and the Policy on Protection and Assistance to Victims of Human Trafficking in West Africa.55 At the sub-regional level, following these standards-setting instruments, ten member countries of ECOWAS have national action plans56 and task forces on combating trafficking in persons; and 13 out of the 15 Member States have anti-trafficking legislation. About two-thirds of Member States have entered into bilateral and multilateral57 agreements to combat trafficking in persons, especially cross-border trafficking of children.58 All Member States have ratified ILO Convention No. 182 on the Worst Forms of Child Labour,59 as well as the Palermo Protocol. Despite the improved policy environment, the slow implementation of these initiatives, as well as limited resources, continues to hinder the realisation of policy objectives and targets.
Further developments include: the adoption by the Southern African Development Community (SADC) of the Protocol on Gender and Development; and the 10-Year SADC Strategic Plan of Action to Combat Trafficking in Persons, Especially Women and Children (2009–2019). The SADC region has adopted a definition similar to the Palermo Protocol.60 The Protocol on Gender and Development stipulated that (amongst others).
States Parties shall, by 2015:
(a) enact and adopt specific legislative provisions to prevent human trafficking and provide holistic services to survivors, with th
e aim of reintegrating them into society;
(b) put in place mechanisms by which all relevant law enforcement authorities and institutions may eradicate national, regional and international human trafficking networks; and
(c) put in place harmonised data collection mechanisms to improve data collection and reporting on the types and modes of trafficking to ensure effective programming and monitoring.61
Clearly, the standards exist at the regional level for the implementation of those political commitments that have been undertaken. However, there appears to be a hiatus in the domestic transformation of these regional obligations, and in the effective implementation of existing legal and policy frameworks – especially in the adoption of strong criminal justice response mechanisms, a rights-based approach and in ensuring the protection, as well as the adequate assistance, of trafficked persons. Moreover, the lack of economic will to match expressed political commitments delays action and the achievement of set targets.
Country level actions
Many African States’ penal laws address THB. In 2003, only two countries in sub-Saharan Africa had comprehensive legislation criminalising all forms of trafficking; while five had partial legislation, most countries had no legislation establishing the offence of trafficking. This state of affairs had, however, been reversed by 2014, with 28 having comprehensive laws criminalising trafficking and ten with partial criminalisation; in four countries, trafficking is not a crime punishable by law. As UNODC observed, this is a tremendous achievement.62 Notwithstanding, the lack of specific and comprehensive legislation to combat and prevent trafficking is still a key concern, especially within sub-Saharan Africa. Several countries still need to adopt relevant legislation in line with the Palermo Protocol.63
A cursory examination of these laws reveals that countries are at different stages in their efforts to criminalise THB. Some have good models, with protection and assistance for victims (Nigeria, Kenya, Ghana, South Africa, Egypt);64 while some have narrow perspectives, criminalising only trafficking in women or children. For example, Gabon, Benin, Côte d’Ivoire, Guinea Bissau and Togo have laws against child trafficking only.65 Some African destination countries, including the Seychelles, Morocco, Mauritius and Tanzania, lack a specific and adequate legislative framework to tackle human trafficking. Yet some of them have booming tourism, with the potential risk of fuelling THB. At the national level, the Seychelles does not yet have specific legislation dealing with trafficking in persons. The Seychelles Government had identified this shortcoming, and at the time of the visit of the UN Special Rapporteur on Trafficking in Persons had plans to draft an anti-trafficking Act.66
Some African States are yet to ratify the Palermo Protocol; while some have already incorporated provisions of the Protocol into domestic legislation, as well as putting in place comprehensive plans of action, including national referral mechanisms and institutional frameworks for combating trafficking. Twelve Member States of the African Union have a functioning co-ordinating body, at the national level, on combating trafficking, including dedicated agencies and units. About half of them have such an institutional mechanism established by law to fight THB.67
In Nigeria, the National Agency on Trafficking in Persons and Related Matters (NAPTIP) was established in 2003, and further amended in 2005 and 2015.68 The 2015 Act effectively repealed the Trafficking in Persons (Prohibition) Law Enforcement and Administration Act, 2003, as amended in 2005.69 This law established NAPTIP70 to fight THB. NAPTIP is a crime-specific agency: a one-stop shop model, which has adopted a comprehensive rights-based approach to THB, including establishing the Victims Funds, amongst others.71 A specialised anti-trafficking agency such as NAPTIP is a model that needs to be replicated around the continent, and beyond. It is a new way of combating trafficking, through a rights-based and victim-centred approach.72 The Gambia and Niger have established multi-agency task forces similar to that of NAPTIP.
There are areas where standards generally fall short – such as in legislation dealing with proceeds of crime recovery, mutual legal assistance and compensation for victims of trafficking. African States need a multi-agency, co-ordinated and integrated approach to combating THB. The challenge lies in regional and sub-regional co-operation, international co-operation and the sharing of intelligence, resources and skills, which are crucial for combating and preventing trafficking and for effective prosecution of traffickers.
Another problem is limited financial resources for law enforcement and the reintegration of victims. There is heavy reliance on donor-funding and external aid from Western destination countries; and in the absence of such aid, not much is done to effectively implement measures to tackle THB. There also exists limited political will to combat trafficking. Many instruments have been adopted, but little is generally being done at the level of implementation. The root causes of trafficking, such as widespread poverty, gender discrimination, conflicts, corruption and restrictive immigration policies of favoured countries for migrants, are not being adequately addressed.
Towards effective action to end human trafficking in Africa: victims, human rights and a development-centred approach to combating THB in Africa
Prevention paradigm
There have been several uncoordinated THB-prevention campaigns in Africa. However, there have been problems with evaluation of their effectiveness, stigmatisation and lack of sustainability. Victims of THB must not be re-victimised or stigmatised by prevention messages. The target audience, potential victims (i.e., youths, women and children), are often not involved in developing these prevention messages. There is a need to institute community-based awareness initiatives to target the population at the grassroots level, as it has been shown that most trafficked victims come from rural areas.73 For example, in Nigeria, certain ethnic groupings are disproportionately affected; the trafficking phenomenon is very much rooted in certain communities, and families are implicated.74 NAPTIP has organised grassroots sensitisation campaigns against THB in the two most affected areas for transnational trafficking – Edo and Delta.75 A baseline survey (2004–2005) conducted by the ILO Action Programme against Human Trafficking and Forced Labour in West Africa (ILO-PATWA), in Ghana and Nigeria, revealed that many of the communities covered have little awareness of THB and illegal migration.76 The situation has not changed much after a decade of anti-trafficking measures across the continent. Low awareness on trafficking, illegal recruitment and migration was evident during country visits to some African countries, undertaken as the UN Special Rapporteur on Trafficking in Persons, including Morocco, Gabon, Egypt and the Seychelles.77
There is a need for greater prevention and awareness-raising regarding the forms of THB and modus operandi of traffickers. There is also a need to enhance the capacity of frontline personnel, such as immigration officials, border guards, the police, prosecutors and judges, who are involved in identifying, investigating and prosecuting THB.
Development-centred approach towards addressing the root causes
Article 9 of the Palermo Protocol provides, in part:
States Parties shall take or strengthen measures, including through bilateral or multilateral cooperation, to alleviate the factors that make persons, especially women and children, vulnerable to trafficking, such as poverty, underdevelopment and lack of equal opportunity.
Further:
States Parties shall adopt or strengthen legislative or other measures, such as educational, social or cultural measures, including through bilateral and multilateral cooperation, to discourage the demand that fosters all forms of exploitation of persons, especially women and children, that leads to trafficking.
A State’s duty under Article 9 is two-fold: to address factors that make people vulnerable to trafficking; and to reduce the demand that fosters all forms of trafficking. This is further developed in the Recommended Principles and Guidelines on Human Rights and Human Trafficking. Under Principle 4 –reinforced by Guideline 7 –it is stated that strategies to prevent trafficking
“shall address demand as a root cause”; while under Principle 5, States “shall ensure that their interventions address the factors that increase vulnerability to trafficking, including inequality, poverty, and forms of discrimination”.
Addressing the root causes of trafficking is one area in which African States have failed; the linkages of push and pull factors of human trafficking to the state of development in many parts of Africa, often perceived as a diseased, debt-ridden continent with corrupt governments not committed to good governance, is becoming clearer. Lack of achievement of the Millennium Development Goals (MDGs), especially goals 1,78 279 and 3,80 continue to increase the vulnerabilities of Africans to human trafficking. The issue of gender discrimination, targeted by MDG3, is of particular significance for trafficking, because it is not only limited to the conditions which increase vulnerability of African women and girls to trafficking, but addressing it is also a means to tackle demand – which is very much fostered at the global level by an underlying cultural and social framework of men’s dominance.
The Sustainable Development Goals81 are the latest developmental ‘magic wand’ intended to transform our world. While the political support of African leaders may have been secured, the real challenge is in translating these commitments towards effective achievements of the SDGs’ targets. If there were jobs for the teeming youth of Africa; if inequality were bridged; if sustainable livelihood opportunities were enhanced; if there were empowerment of women and girls and the elimination of gender-based inequalities and violence, fewer Africans would be tricked with the suggestion of better life prospects elsewhere; and fewer would take the risk of drowning in the Atlantic and Mediterranean seas, all in the search for a better future.