THE SOUTH AFRICAN LEGAL REPONSE TO HUMAN TRAFFICKING

THE SOUTH AFRICAN LEGAL REPONSE TO HUMAN TRAFFICKING ADV BEATRI KRUGER Faculty of Law University of the Free State, South Africa Krugerh. RD@UFS. ac. za IAWJ Conference, Johannesburg 18 -10 -07 Powerpoint design: J VISSER 12 -10 -07

ELEMENTS of HUMAN TRAFFICKING ACTION MEANS Any of the following EXPLOITATION Recruit Deceive Sexual Transport Transfer A N D Force Coercion Harbour Fraud Receipt Pay / give benefits Abduct PURPOSE: A N D Forced Labour Forced marriage Slavery Removal of body parts Illegal Adoption

TYPICAL TIP SCENARIO OK! ID Trafficker Victim ID Parents Porn & sex for sale Forced labour BORDER In / across Forced marriage Transport Body parts Illegal adoption

POSITION IN SA SCOPE IN SOUTH AFRICA ë UNKNOWN – no official statistics ë RESEARCH – concerning indications ~2000 Molo : sexual exploitation children ~2003 IOM : sexual exploitation southern Africa ~2003 UNICEF: TIP in Africa ~New studies in progress by ISS & Molo

POSITION IN SA n n SA = country of origin transit destination TIP Report 2007: - SA rated tier 2 special watch (since 2005) - why?

SA LEGAL POSITION TIP OBLIGATIONS International National CURRENT SAPOSITION Specific TIP law Children’s Act: but not in force PROPOSED LAW other laws common law legislation Sexual Offences Bill Combating of TIP Bill

Obligations to address TIP INTERNATIONAL UN CONVENTIONS PALERMO PROTOCOL NATIONAL freedom + security of person dignity child rights no abuse no exploitative labour basic nutrition + shelter health care social services family care CONSTITUTION freedom of movement forced labour slavery + servitude

CURRENT SA POSITION RAPE SLAVERY EXTORTION CRIMEN INIURIA MURDER FRAUD COMMON LAW CRIMES ABDUCTION KIDNAPPING ASSAULT & ASSAULT GBH INDECENT ASSAULT

CURRENT SA POSITION PREVENTION & COMBATING of CORRUPT ACTIVITIES ACT INTIMIDATION ACT SEXUAL OFFENCES ACT APPLICABLE LEGISLATION IMMIGRATION ACT RIOTOUS ASSEMBLIES ACT CHILD CARE ACT PREVENTION OF ORGANIZED CRIMES ACT FILMS & PUBLICATIONS ACT BASIC CONDITIONS OF EMPLOYMENT ACT

Challenges in Prosecuting L TIP broader than existing crimes - E. g. abduction fails if parents consent L Prosecuting difficult: - numerous offences applicable = complex L TIP by juristic persons L Acts relating to crime of TIP Facilitating TIP: recruiter / transporter / recipient Profiteering from TIP crime Attempted TIP Participating in TIP

Challenges in Prosecuting…cont’d L Prosecute victim? . . . crime due to TIP ~ Sexual Offences Act: prostitution ~ Immigration Act: no ID /passport… deportation L Sentencing ~ less than 20 yrs proposed for TIP offence L Extra-territorial jurisdiction ~ commit TIP in other country – liable in SA? L International co-operation ~ SALRC Bill: extradition, mutual legal assistance

CURRENT SA POSITION cont’d … SPECIFIC TIP LAW : Children’s Act Prohibits Trafficking in Children - No person (natural / juristic) may traffic - Allow child to be trafficked - No defense: - consent of child / parent - offence not completed (e. g. exploitation not realised) - Penalty - Up to 20 years, fine or both

Children’s Act : Defining Trafficking v ACTION: includes recruit, sale, supply, transport, transfer, harbour / receipt of children, - within or across the borders of the Republic - includes illegal adoption v MEANS: any means… includes threat, force, coercion, abduction, fraud, deception, abuse of power / giving or receiving of benefits to achieve the consent of person in control of child / due to a position of vulnerability v PURPOSE: exploitation…sexual, servitude, slavery, forced marriages, forced labour, child labour, body parts

CHILDREN’S ACT CHALLENGES - Not in force - Focus: only children Bill - Provisional pending TIP

PROPOSED SA LEGISLATION ! Sexual Offences Bill 2006 - Focus: only sex trafficking - Provisional ! Combating of TIP Bill - Full focus

SEXUAL OFFENCES BILL 2006 TRAFFICKING CRIME … for SEXUAL PURPOSES ¯ A traffics B ¯ without consent of B ¯ = guilty of offence of TIP for sexual purposes

Sexual Offences Bill 2006 INVOLVEMENT TIP for sex purpose A person who - orders, organises, supervises, controls trafficking; - performs any act aimed at committing, promoting, participating in trafficking; - incites, aids, advises, recruits, encourages or procures any other person to commit, contribute towards / participate in trafficking = guilty of offence

Sexual Offences Bill 2006 TRAFFICKING DEFINED: ACTION: supply, recruit, procure, capture, remove, transport, harbour, sale, dispose / receiving of a person - within or across the borders of the Republic MEANS: - threat / force/ intimidation / other coercion - abduction - fraud /deception / false pretences - abuse of power / position of vulnerability - giving / receiving of benefits PURPOSE: exploitation, grooming or abuse of a sexual nature - include sexual offence / sexual act - committed in / outside Republic

Combating TIP Bill Discussion Paper – 2006 Ø SA Law Commission: Recommend Bill address TIP Ø Bill = specific TIP law - Fulfil international obligations - Palermo Protocol - Full scope

Combating TIP Bill cont’d Offence of Trafficking - § 5 Ø Traffics or allows another to be trafficked Ø No defense: - consent of child / parent - offence not completed (e. g. exploitation not realised) Ø PENALTY - Up to 20 years, fine or both Using services of Victim - § 8 Benefits (financial / other) from services of V of TIP / uses services of V of TIP Ø PENALTY - Up to 2 years, fine or both - Why? Address supply & demand! Ø Debt bondage (§ 6) Documentation issues (§ 7)

Combating TIP Bill cont’d TRAFFICKING DEFINED ACTION Recruit, sale, supply, procure, capture, remove, transport, transfer / receipt of persons / Illegal Adoption - within or across the borders of the Republic— MEANS…any - threat, force, intimidate, coercion - abduction, fraud, deception - abuse of power / vulnerability / - giving / receiving benefits to gain consent of person in authority over another PURPOSE exploitation…sexual, servitude, slavery, forced marriages, forced labour, child labour, body parts

Combating TIP Bill cont’d VULNERABILITY DEFINED - Entering Republic illegally / without proper documentation - Pregnancy - Any disability of the person - Addiction to any substance - Reduced capacity to form judgements due to being a child (Child is person under 18)

Combating TIP Bill cont’d EXTRA-TERRITORIAL JURISDICTION -S 43 SA Court has jurisdiction when: Commit outside SA, but would be offence in SA - Regardless whether act constitutes offence at place of commission & - Person to be charged— - - = citizen / ordinarily resident in Republic was arrested in Republic is a juristic person registered in Republic

Combating TIP Bill cont’d INTERNATIONAL COOPERATION –s 42 Ø Extradition & mutual assistance Ø Regional harmonization laws penalties

CONCLUSION ï SA has many laws applicable TIP ï But not effective enough. . . ï Better address TIP – - implement TIP Bill

In the dispute between water rock

. . . water always triumphs! not because of. . . strength but because of. . . persistence!

Trafficking in persons is a challenging rock. Let us unite LIKE water and Conquer this rock!