Comment on PREVENTION AND COMBATING OF Traffick in Persons Bill (B7-2010) By Patric Solomons

Comment on PREVENTION AND COMBATING OF Traffick in Persons Bill (B7-2010) By Patric Solomons

Written Submission endorsed by • The Parent Centre, Disabled Children’s Action Group (DICAG), ANEX-CDW, New Womens Movement, Justice Acts, The Trauma Centre, Fusion Worx, Legal Resources Centre, SAPS-FCS Nyanga, New Moon Ventures (Malika), Jo-aan Michaels, Kadija Tracey Heeger, Euodia Samson, Unga Ornar (Amir Danship), Zenariah Barends, Beverley Barry, Counter Trafficking Coalition

About Molo Songololo The organisation strives to advance the rights, care, protection and participation of children through awareness, education, training and provision of services. Key objectives include; • Providing direct support and assistance to children who are victims of abuse, exploitation and trafficking, and their families • Inform and educate children about their rights and responsibilities; to motivate and empower them with life-skills and leadership skills • Raise awareness about children in difficult circumstances to public, role-players, stakeholders and specific targeted groups • Build capacity of service providers through education and training workshops • Advocate and lobby for the rights, care, protection and participation of children

Our Experience… • Responding to prevent and combat trafficking in persons (TIP), especially children for more than 10 years. • 2000 - Release two research reports TRAFFICKING OF CHILDREN FOR SEXUAL PURPOSES – SOUTH AFRICA and THE TRAFFICKING OF WOMEN INTO THE SOUTH AFRICAN SEX INDUSTRY • 2000 onwards - the organisation pioneered various initiatives and processes at provincial, national and international levels – victim support and assistance • Initiated the Western Cape Task Team Against TIP, now transformed into the Counter Trafficking Coalition. • Member of the National Inter-Governmental Task Team lead by the DoJ/NPA/SOCA • President of the Southern African Network Against Child Abuse & Trafficking (SANTAC)

What we know about TIP? • TIP is not a new phenomenon • Date back to the slave trade • It manifest itself in various ways • Involves various practices • It is complex • Not easy to understand • Not easy to identify • Difficult to investigate • Difficult to prosecute

Reports , research & investigations indicate that TIP… • Occurs internally within South Africa, across its borders into and from the country; and that the territory is also used as a transit point. • People are trafficked for various purposes • Local and foreign organised criminal groups are involved in TIP • Women and children are particularly vulnerable and are the main victims • Locals and foreigners individuals are involved in TIP operations as recruiters, transporters, counterfeiters, abusers and exploiters • Present legal framework is not adequate to prevent, combat and prosecute TIP • TIP is largely a money making operation with low risks to traffickers and exploiters • Corruption – involvement of officials…

How big is TIP in SA? • There are various speculations • Various unsubstantiated estimations • Reality – we do not know how big the problem of TIP is! • Over the last 10 years • Increased awareness and understanding • Increased media reports and police investigations • Increased identification and assistance to victims • Prosecution of cases although not identified as such.

Prosecution of TIP Cases 2000 – 2006 • State vs Amien Andrews • State vs Elizabeth Maswanganye • State vs Andrew Phillips – still pending??? Special Assignment Report & SAPS Investigations • Operation Priscilla • Soul trade • Body Parts Other recent cases involved • TIP - Sexual and Labour exploitation • TIP – (abduction and forced marriage of children) Including cases / in-country & cross border TIP • Illicit criminal activities – drug running

General profile of these cases • Victims are mainly women and children • Victims are locals and foreigners • Victims were deceived and forced • Victims were given alcohol & drugs – became addicted and dependent on traffickers, abusers and exploiters • Most cases involved TIP for sexual exploitation • Offenders were locals and foreigners • Few were successfully prosecuted • Many are still under investigation

Need for new law • Comprehensive legal framework • Criminalise TIP • Make the offence of trafficking in persons and related offences • Prevent TIP • Protection and assistance to victims of TIP • Prosecute TIP offenders Our comment on the proposed law is informed by our knowledge, experience and the Republic’s international obligations

Purpose of the Bill • The Bill deals with trafficking of persons. This includes both the trafficking of adults and children. It is widely accepted that children get abused and exploited in different ways according to their age and gender and it is generally easy for adults to manipulate children and for children to do as they are told than adults. Thus special measures need to be taken to protect children as advanced by the Palermo Protocol.

Recommendation • That the purpose of the Bill must include… ‘to give effect to the United Nations Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children supplementing the United Nations Convention against Transnational Organised Crime • (and include)… as well as the Optional Protocol on the Sale of Children, Child Prostitution and Child Pornography supplementing the United Nations Convention of the Rights of the Child.

Title of the Bill The title of the Bill does not adequately describe the scope of the Bill; i.e. . • Prevention • Protection • Prosecution Our Recommendation for new title Prevention, Protection of Victims and Prosecution of Trafficking in Persons Bill

Clause 1 - Definitions ‘Exploitation’ definition • Molo Songololo suggests that the definition of exploitation be expanded to include the following; Recommendation • (h) ‘the removal and selling of body parts and organs; and’ • We further recommend a further addition; • (j) illegal adoption

‘Forced Labour’ definition • The definition provided does not adequately address the complex nature of forced labour exploitation and in particular the ‘worst forms of child labour’; Recommendation That the definition of ‘forced labour’ as defined by the IOM be used; and in respect to children, to include the definition of ‘the worst forms of child labour’ as defined in the International Convention on the Worst Forms of Child Labour; i.e. • All forms of slavery or practices similar to slavery, such as the sale and trafficking of children, debt bondage and serfdom and forced and compulsory labour • The commercial sexual exploitation of children • The involvement of children in other illicit activities, such as drug trafficking • Employing anyone aged under 18 in work which is likely to harm their ‘health, safety and morals’

‘TIP’ definition in relation to children • The Palermo Protocol definition of trafficking in persons includes a special provision with regards to children and is wide reaching implying that it is not necessary for a child to have been coerced or deceived to amount to be a trafficking case. The Protocol assert that it is enough to know that a person under 18 has been recruited and moved away from his or her usual place of stay for the child concerned to be identified as a victim of trafficking. Recommendation • To include in the definition of trafficking the Palermo Protocol provision regarding children; i.e. • ‘… the trafficking of a child for the purpose of exploitation shall be considered ‘trafficking in persons’ even if this does not involve any of the means set in the definition set forth…’

Alternatively to provide a stand alone definition of trafficking in children ‘… trafficking by means of’; The definition of trafficking states that a person can be trafficked by various means and lists them. The stated means are limiting and thus propose the following; Recommendation • ‘trafficking’ includes the…. by any means including’; and then to list the various means as listed in the Bill Further recommendation To include the following purposes for which persons can be trafficking; • illicit crime - selling of counterfeit goods, money laundering, courier and selling drugs • Forced marriage

Clause 2 – Objects of the Act/Bill • Bases on the aforementioned regarding children that need special care and protection due to their vulnerability and that it is generally easy to control and make children do things than adults; we make the following; Recommendation • ‘To give effect to the UN Protocol to Prevent, Suppress and Punish Trafficking in Person, • (include)… supplementing the UN Convention against Transnational Organised Crime • (and include)… the Optional Protocol on the Sale of Children, Child Prostitution and Child Pornography supplementing the United Nations Convention of the Rights of the Child and International Labour Organisation’s (ILO) Convention on the Prohibition and Immediate Action for the Elimination of the Worst Forms of Child Labour’

Clause 3 - Public Awareness The scope of the prevention strategies are very limited as presented in the Bill. There are various other strategies Recommendations • The title of clause 3 should read Awareness,Education and other Prevention Measures • Clause 3. (1) – toinclude the following…. ‘…establish public awareness and educational programmes or other measures for the prevention, protection and suppression of trafficking in persons designed to –‘ • Clause 3. (1)(a) – to include the following; ‘inform and educate members of the public, especially women and children and other vulnerable groups or those at risk of becoming victims of trafficking…’ • Clause 3. (1)(a)(iv) – to include the following; ‘…organisations, institutions or law enforcement agencies and victim support services that may be approached for assistance or information;’

Propose an additional provision To inform and educate law enforcement, social welfare, health, education, labour, immigration, border control, home affairs, justice, prosecution, transport, trade, communication and municipal service providers, officials, practitioners, operators and workers in government and civil society on – • the phenomenon, nature, methods and practices of trafficking in persons, especially women and children • the forms of abuse and exploitation to which victims of trafficking may be subjected to • Law enforcement and prosecution agencies and victim support services available • Measures to prevent, identify, report and manage trafficking in person cases

Other Prevention Measures… • Further Recommendations • All government departments, municipalities, service providers and operators must ensure regular compliance investigations and monitoring • Regular inspections and evaluation of all key measures, services and action plans to prevent and combat trafficking in persons • Disruptive operations by police enforcement agencies • Data collection, research and analysis

Clause 4 – Offences, penalties and extra-territorial jurisdiction • Molo Songololo welcomes the provisions that criminalise the offence of trafficking in persons and related offences aimed at committing, acquiring another person to commit, or conspiring to commit an offence of trafficking in persons. • However the organisation is concerned about the leniency of penalties for offences. We therefore make the following; Recommendation • That the principle of a fine and or imprisonment (when a person is found guilty of an offence he / she can be liable on conviction to both a fine and imprisonment) must apply to the offence of trafficking in persons and all related offences.

Clause 8 & 9 – Conduct facilitating trafficking in persons & liability of carries Recommendation • That the penalties for an imprisonment conviction for conduct facilitating trafficking in persons and liability of carriers be increased to and imprisonment for a period not exceeding 10 years. Recommendation • Molo Songololo welcomes the minimum sentence rule to be applied when a person, owner, internet service provider or carrier is found guilty of an offence of trafficking in persons and is liable on conviction to both a fine and or imprisonment. • We therefore proposes that a minimum fine and or imprisonment must be identified and stated in the Bill; i.e. • A person found guilty and liable on conviction to a minimum fine be set at R10 000 (SA Rand) and or an imprisonment of one year • An internet service provider found guilty and is liable on conviction to a minimum fine of R50 000 (SA Rand) and or imprisonment of one year • A carrier found guilty and is liable on conviction to a minimum fine of R100 000 (SA Rand) and or imprisonment of one year

Clause 11 – Factors to consider when sentencing Factors to consider in sentencing must include; Recommendation • The nature of the relationship between the victims / complainants and person found guilty and is liable on conviction • Whether a person is disabled • The nature of abuse, injuries and whether the victim acquired any life threatening health conditions or illness.

Clause 12 and 13 – reporting and referral of child victims of trafficking and reporting and referral of adult victims of trafficking It is not easy to identify a victim of trafficking. Most victims do not present as victims of trafficking and there are those who might not identify themselves as victims of trafficking and those who do not want to talk to police. Recommendation • Special provision must be made for a reasonable time for the reporting of a possible victim of trafficking can indeed be identified as a victim of trafficking when a victim presents the aforementioned conditions. • Provision must be made, in cases where victims do not or is not able to be interviewed by the police and that there are reasonable suspicion that others persons’ safety might be at risk, and for such suspicion to be reported to the police for further investigation.

Clause 13. (1)(b) – referral of adult victims of trafficking Many victims of trafficking due to language, fear, intimidation, limitation of free will, being watched, and mistrust of officialdom, are emotionally or physically traumatised or for safety reasons might not be in a position to or refuse to give written consent to report their case to the police. Recommendation • To delete ‘may’ and replace it with ‘… must report a matter to a police official as provided in paragraph (a)’; and delete ‘…if the victim has given his or her written consent in the prescribed manner, except where the person is –‘ • Further recommendation • Delete clause 13. (1)(b)(i) and clause 13. (1)(b)(ii)

Clause 13. (7)(a) - Certification of victims The clause does not indicate who is responsible to ‘certify’ a person as a victim of trafficking. Recommendation • Molo Songololo suggest that the Department of Social Development and a ‘designated organisation’ be mandated to issue a ‘certificate’ once it is established in a prescribed manner that a person is indeed a victim of trafficking in person. • We further recommend an additional provision… • A possible victim of trafficking must have the right to appeal against a decision not to issue a ‘certificate’ to such a person.

Delete clause 13. (9) (a) Written consent in relation to ‘doctor patient’ relations and where victims refuse to do so because of fear needs to be address more clearly in the Bill. • Clause 14 – child victim of trafficking found in the Republic • Stigmatisation of children must be avoided and the approach of the Children’s Act must be adopted; children who are ‘illegally’ in the Republic must be viewed as children in need of care and protection. Recommendation • In clause 14.(2) – Molo Songololo suggest that the term ‘illegal’ be deleted… and be replaces with ‘a foreign child in need of care and protection’ Protection of reported person • Molo Songololo also recommends that in cases where persons who reports cases of trafficking in persons to a police official and have reasonable suspicion that his or her safety is at risk then reasonable measures must be taken to protect such persons.

Clause 15 – Provision of health care services Victims of trafficking often experience multiple traumas and might be in need of a combination of health care services. The provision of health care services must be made available to all victims of trafficking. We therefore make the following; Recommendation Delete clause 15. Replace it with the following; • ‘All victims of trafficking are entitled to the same public health care services as those to which the citizen of the Republic have access including • Psycho-social support services • Emergency medical care, treatment and operations • Alcohol and drug rehabilitation • HIV/AIDS counselling, testing, treatment and care • Reproductive health care and treatment • Immunisation and inoculation

Clause 17. (4) – Recovery and Reflection • The recommended ‘non-renewable recovery and reflection period not exceeding 90 days’ might not be enough. We support the provision in clause 17.(4), however the recommended extension period of ‘six months’ might not be enough in cases where victims present severe psychosocial trauma or addictions, etc.; we therefore make the following Recommendation • That if the Department of Social Development is unable to complete an investigation referred to in subsection (2) before the expiration of the recovery and reflection period, he / she must in consultation with the victim of trafficking concerned, in the prescribed manner request the Director-General: Home Affairs to extend, in a prescribed manner the recovery and reflection period to six months or more.

Clauses 20, 21, 22, 23, 24 and 25 – Services to victims of trafficking Recommendation • Consent of victims - Victims of trafficking must be consulted and where possible they must give their consent to access a particular service, treatment, accommodation, care and protection programme • Provision of resources - All government departments must provide adequate resources for the provision of service to victims of trafficking and children in their care. • In case of death of a victim of trafficking - the Department of Home Affairs must take appropriate measures to • issuing of death certificates • Arrangements for the safe-keep and storage of the body of the deceased • Inform family and ensure return of the remains of the person to their place or country of origin.

Clause 21(3) – Minimum norms & standards Recommendation • An additional point be added - An accredited organisation must access in the prescribed manner if a child found to be in the care of an adult victim of trafficking is in need of care and protection and must report such finding to the Department of Social Development within 24 hours for further investigation in terms of the Children’s Act and be guided by the children’s court finding. • An additional point be added - An accredited organisation that provides services to must provide – • A safe and accessible environment for disabled victims of trafficked persons • Proper care and support for disabled victims of trafficked persons • Facilitate access for special care and services as may be needed by disabled victims of trafficking

Clause 22 – Programme offered by accredited organisations • Victims of trafficking often engage in the very same abusive, exploitative and illegal practices they where forced into; such as sex work, selling of illegal goods or drugs, or recruitment of other possible victims for exploiters and traffickers, etc; as a means of survival. Recommendation • To include an additional provision that an accredited organisation must – • Inform and educate victims of trafficking about trafficking in persons, their rights and services available to them • Provide sensitisation, life-skills, social competence education and training to victims of trafficking • Provide programmes to exit victims from exploitative practices • Substance abuse detoxification and rehabilitation programmes • Sexuality, sexual health and reproduction health education

Clause 28 – Compensation to State What about compensation to an accredited organisation who have provided services to a victim of trafficking? Recommendation • An additional point to be added • Upon application by the prosecutor the court may make an order for payment by the convicted person to an ‘accredited organisation’ to compensation for expenses incurred for services rendered to the victim/s of trafficking and children in their care.

Clauses 29, 30, 31, 32, 33 – Deportation and repatriation of victims of trafficking • What about TIP victims inside the country – what kind of assistance do they get? Recommendation • That an additional clause be added that provides special guidelines and measures in the Bill for the repatriation of victims of trafficking who are residents, permanent residents and visitors who were trafficked inside the Republic to their place of origin; and for alternative support and assistance if such victims are unable to be repatriated.

Clause 36 – National instructions and directives • The national instruction and directives must apply to all government departments as per their obligations and responsibilities to prevent, protect and suppress trafficking in persons. Recommendation • Addition provisions must be included for national instructions and directives to all government departments. And that all government departments must report on trafficking in persons and related cases.

Clause 40 – Establishment of Intersectoral Committee on Prevention, Protection of Victims and Prosecution of Trafficking in Persons Bill Recommendation • That all relevant government departments must be represented on the Committee; including Director-Generals from the – • Department of Education • Department of Trade and Industry • Department of Housing • Department of Public Works • etc • The Role and function of the Ministry for Women, Children & Disabled Persons must be clarified and they must be obligated in this regard to implement their duty.

Special Unit to Investigate, Assist Victims and Prosecute Trafficking in persons cases. TIP is complex and often involves organised crime. There is a need for skilled prosecutors, law enforcement and victim support experts to address TIP cases. Recommendation • That the Intersectoral Committee must establish a Specialists Unit consisting of experienced professional experts drawn from various law enforcement, victim support and prosecution agencies for the – • Investigation of trafficking in persons cases • Assistance and support to victims of trafficking • Prosecution of trafficking in persons cases and related offences • The Intersectoral Committee must put in place measures for the - • Identify the lead department for the Unit – propose Joint NPA & SAPS • Identify the institution arrangement for the Unit • Appoint a Head for the Unit law • Recruitment, management and monitoring of the Unit • Reporting and evaluation of the Unit • Make resources available for the Unit

General Comment - The structure of the Bill • The proposed new law address the trafficking of adult persons; as well as the trafficking of children. Because of children’s status and vulnerability they are afforded special measures within the Bill and as prescribed by the South African Constitution, The Children’s Act and related legal domestic and international instrument needs special protection. Recommendation • That all the provisions and clauses related to children be brought together under one Chapter in the Bill.

Conclusion • The need for a comprehensive legal instrument to prevent, protect victims and prosecute TIP is urgent. • Its been 7 years since the DoJ instructed the SALRC to investigate TIP in SA • In-country and cross border TIP is a reality in South Africa • Government have an international obligation to combat TIP • We appreciate the opportunity to participate in this process and for our comment to be given due consideration

Thank you Molo Songololo Tel: 021 448 5421 / Fax: 021 448 2024 Email: info@molo.org.za

Comment on PREVENTION AND COMBATING OF Traffick in Persons Bill (B7-2010) By Patric Solomons