Caution urged over new human trafficking laws

The problem of human trafficking in South Africa is coming under greater scrutiny as the state investigates new legislation to plug existing loopholes. South Africa is a signatory to the United Nations Protocol on Trafficking in Persons, and hopes to have comprehensive domestic legislation in place by 2006, according to the International Organisation on Migration (IOM). In late August IRIN reported that home affairs ministers from southern African countries vowed to "remove any obstacles facing law enforcers in the fight against human trafficking," following a conference in Dar Es Salaam, Tanzania. They also pledged to review legislation in their respective countries regarding human trafficking. EXTENT OF THE PROBLEM NOT KNOWN According to the Geneva-based International Organisation for Migration (IOM), South Africa is the regional centre of an intricate trafficking network that recruits women and children from Mozambique, Angola, Malawi, Eastern Europe, Thailand and China. However, Ted Leggett, a researcher with the Institute for Security Studies (ISS), recently questioned the benefit of promulgating new anti-trafficking legislation. In an ISS article titled, 'The Risks of Human Trafficking Legislation', Leggett argued that the extent of trafficking in South Africa was unclear. The South African Law Reform Commission (SALRC), which is investigating the proposed legislation, "draws its ideas about the extent and nature of the local [trafficking] problem almost entirely from two pieces of primary research ... [which] are hinged on the direct experiences of less than 35 people", Leggett pointed out. Although both pieces of work "profess to be preliminary investigations, in the absence of other research they are being taken as authoritative". Commenting on the unverified need for additional legislation, Leggett noted that "the bottom line is that virtually everything that is part of trafficking is already illegal, and simply generating more legislation is unlikely to revolutionise the situation". He suggested that "no policy decision should be taken in this area without further research". "Until we can say with more precision how serious the issue is in this country, we cannot say how much of our scarce criminal justice resources should be dedicated to addressing it. This information must be more than anecdotal. We need to justify our official record-keeping mechanisms - which do not presently distinguish trafficking cases from other kidnapping or sexual offences cases - to track the phenomenon over time," Leggett added. The distinction between involuntary servitude and the "unfortunate reality of consensual adult commercial sex work must be kept in mind at all times", he concluded. Writing in the IOM bulletin, 'Eye on Human Trafficking', state law advisor Advocate Lowesa Stuurman acknowledged that "although South Africa has an obligation to bring its domestic legislation in line with the (UN) Trafficking Protocol, the extent of the problem of trafficking within and across the borders of South Africa is unclear". She said one of the objectives of the SALRC investigation into trafficking, for the purposes of law reform, was to determine the extent of the problem. "The uncertainty regarding the extent of the trafficking problem is also partly because there is no structure in place to collect data on trafficking in persons. This does not mean that the promulgation of anti-trafficking legislation should be delayed - in fact, this uncertainty is one more reason for the urgent promulgation of such legislation," Stuurman argued. She said specific anti-trafficking legislation could be used to "ensure that the necessary structure is established for determining, on a continuous basis, the extent of the problem". This information could then be used to evaluate whether measures used to combat trafficking were effective. CURRENT LAWS NOT ALWAYS ENOUGH Stuurman agreed that the authorities should be cautious about not confusing the trafficking of persons for purposes of sexual exploitation with voluntary involvement in prostitution, but disagreed that current legislation covered all aspects of trafficking. "The existing legal measures that can be applied to prosecute offences related to trafficking in persons are not sufficient to combat trafficking or to protect victims effectively. Traffickers are currently being charged with the common-law offence of kidnapping, described as the wrongful and intentional deprivation of the liberty of another. Trafficking in persons, as defined the [UN] Protocol, is much broader than kidnapping," Stuurman noted. "Although a trafficker can be charged with rape under the Sexual Offences Act ... this Act does not make adequate provision for prosecution of cases related to trafficking for purposes of sexual exploitation. The Act, for instance, does not recognise that boys or men can be victims of rape," she added. Stuurman explained that while the Immigration Act criminalises the illegal transportation of foreigners across South Africa's borders, it does not deal with related issues, such as the protection of victims of trafficking, or the confiscation or destruction of their travel and identity documents. "Currently, victims of trafficking are being arrested and prosecuted for offences committed as a direct result of their being trafficked. A victim who has entered the country without valid documentation can be charged under the Immigration Act. Similarly, a victim who was forced into prostitution by her traffickers can presently be prosecuted for prostitution," Stuurman noted. Trafficked victims in South Africa are deported without prior investigation to establish whether protective systems are in place in their countries of origin, to ensure that they are not returned to the same circumstances that made them vulnerable to being trafficked in the first place. She added that "the summary deportation of those children who fall through the cracks may mean the return of those children to the very parents who sold them or to a home where they were abused."