Still waiting for an anti-human trafficking law

South Africa has been identified as a major human-trafficking destination for victims from within the country, the region and beyond, yet there is no legislation that specifically criminalises human trafficking and protects victims.

The country is a signatory to the 2000 UN protocol to prevent, suppress and punish trafficking in persons. In signing this document, also known as the Palermo Protocol, the government committed to adopting legislation to make human trafficking a criminal offence and began the process of drafting a law in 2003. However, the Prevention and Combating in Trafficking in Persons (TIP) Bill only reached parliament in March 2010 and there is no indication of when it will be passed.

The US State Department's annual snapshot of human trafficking around the world, released on 27 June, described the lack of legislation that "fully defines trafficking, empowers police and prosecutors, and outlines provisions and allocates funding for victim care [as] the greatest hindrance to anti-trafficking efforts in South Africa".

Until the TIP bill is finalized, police and prosecutors are using other laws that deal with sexual offences, employment-related offences, organized crime and kidnapping to deal with traffickers, but the penalties are often insufficient. Julayga Alfred, chairperson of the Western Cape Counter Trafficking Coalition and director of Annex, a local child rights NGO, also notes that the current laws are not always applicable.

"If its pure human trafficking, if, for example you were tricked [into a forced labour situation] and there was no kidnapping or rape, it becomes 'You say, I say', and very difficult to prosecute," she told IRIN. "This is a business where you can't be prosecuted, and it's thriving."

An unknown quantity

The actual extent to which human trafficking is flourishing in South Africa is unknown. "We really don't know what the nature of the problem is, what kinds of trafficking we're seeing… and without that it's very difficult to write legislation," Ingrid Palmary of the African Centre for Migration and Society at the University of the Witwatersrand in Johannesburg, told IRIN.

The US State Department report lists various forms of trafficking in the country including children being taken from rural to urban areas to work in the sex trade or as domestic workers, and young men from Mozambique, Malawi and Zimbabwe labouring for months on South African farms without pay, but the hidden nature of the crime and the absence of specific legislation means there are no national statistics on the number of people being trafficked in or out of the country.

Zoe Rohde of the International Organization for Migration (IOM) said the Parliamentary Portfolio Committee on Justice, which is reviewing the TIP bill, attempted to compile statistics on human trafficking at the end of 2010 but received conflicting figures from different government departments.

"Between the SAPS [South African Police Service], Department of Justice and the NPA [National Prosecuting Authority], they all had different statistics," she said, adding that some victims, especially those trafficked within the country, are not handled by any government department.

IOM assisted 338 trafficking victims between 2004 and 2010, but according to the State Department report, as of March 2011 the NPA had initiated just 22 human trafficking prosecutions, and in 2010 there were just nine convictions, with all the offenders receiving suspended sentences or fines.

"There are many other cases that we just can't prove are trafficking," admitted Bonnie Currie, who heads the NPA's recently established Human Trafficking Rapid Response Team in Western Cape Province, where 15 cases are on the court roll. "People are getting away with it because it's not seen as an offence by the community at large."

Media reports have contributed to the widespread misperception that human trafficking only applies to women and children who have been taken by force from one country to another for the purposes of sexual exploitation.

The lengthy definition of human trafficking used in the TIP bill, which is drawn from the Palermo Protocol, includes fraud, deception and other forms of coercion as the means by which a trafficker may gain control over a victim, who may then be trafficked for the purpose of forced labour or servitude, not only sexual exploitation.

In South Africa, trafficking occurs not only across its borders but from rural to urban areas and the victims include men.

A government-commissioned study, conducted by the Human Sciences Research Council and published in 2010, was meant to fill in some of the gaps and inform the drafting of anti-trafficking legislation, but failed to provide hard data.

"We were very disappointed by it," said Palmary. "That was our one opportunity to figure out what trafficking is [taking place]."

Hype or reality?

In the absence of official statistics, the nature and extent of human trafficking in South Africa remains contentious. During the run-up to the 2010 FIFA World Cup, government and NGOs launched various public awareness campaigns warning of a likely spike in trafficking activity while the month-long event was taking place.

When no human trafficking cases were detected, a number of commentators complained that the threat had been exaggerated and that resources could have been better spent on tackling the many other serious crimes besetting the country.

Alfred of the Counter Trafficking Coalition agreed that there had been a certain amount of "hype" rather than substantive evidence, but insisted that human trafficking was taking place in South Africa every day, and that the awareness-raising ahead of the World Cup had been valuable.

During that period, the national human trafficking hotline run by Alfred's organization was receiving around 500 calls per month. "Now we're finding the calls have dwindled to about 250 a month, not because cases are down, but because awareness-raising is not as intense," she said.

Victim protection weak

A human trafficking law would give police and the NPA a better tool for prosecuting offenders, but is unlikely to halt this lucrative trade. The experience of Mozambique and Zambia, which both passed counter-trafficking laws in 2008, suggests that legislation can improve prosecution rates while doing little to help victims.

The State Department report points out that Mozambique has not taken the necessary steps to implement the protection and prevention provisions of its anti-trafficking law, and that Zambia’s protection for victims is also weak.

The South African government does not provide any funding for the care and accommodation of trafficking victims. "Victims have a variety of needs and there's a severe gap," Rohde of IOM confirmed. Poor screening by the police leads to some victims without documentation being arrested and deported.

The TIP bill prohibits the deportation of foreign trafficking victims and even provides for paying them compensation, but Rohde said implementation will depend on training for civil servants and political will.

IOM has held training sessions for officials from various government departments on how to identify and assist trafficking victims, and Alfred noted that several departments were drafting regulations in anticipation of the bill being enacted.

"There's an indication that they really want to implement," she said. "But only when the legislation is passed can they finalize the training and compel departments to do it."

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