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HUMAN TRAFFICKING IN AFRICA: SOUTH AFRICA’S INTEGRATED STRATEGY. International Association of Women Judges: SA Chapter – 18 to 21October 2007. INTRODUCTION.

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Human trafficking in africa south africa s integrated strategy l.jpg

HUMAN TRAFFICKING IN AFRICA: SOUTH AFRICA’S INTEGRATED STRATEGY

International Association of Women Judges: SA Chapter – 18 to 21October 2007


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INTRODUCTION

  • A paraphrase of Adv. Thoko Majokweni’s address at the United Nations Global Inter-faith Dialogue: “What the religious community can do to counter human trafficking” held at the Cape Town ICC from 3 to 5 October 2007: We welcome this opportunity to share our plans as technocrats with our esteemed judiciary, to ensure synergy between our programmes and your intended interventions


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BACKGROUND

  • MOLO SONGOLOLO RESEARCH

    ‘The Trafficking of Women into the

    South African Sex Industry’ – 2000

  • IOM RESEARCH

    ‘Seduction, Sale and Slavery: Trafficking

    in Women & Children for Sexual

    Exploitation in South Africa’ – May 2003


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IOM RESEARCH

Research focusing on

  • Mozambique (trafficked to Jhb & KZN)

  • Malawi (sold to Nigerian syndicates and relocated to Germany, Italy and Belgium)

  • South Africa (trafficked to Hong Kong & Macau)

  • Thailand (debt bonded in Jhb brothels)

  • China (Jhb used as transit to Swaziland, Lesotho & Mozambique)

  • Russia and Bulgaria (Exploited in clubs and private venues in Jhb)


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INTERNATIONAL FRAMEWORK

  • United Nations Convention Against Transnational Organised Crime – 29 September 2003

  • Protocol to prevent, suppress and punish trafficking in Persons, especially women and children (‘Palermo Protocol’)– 25 December 2003


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INTERNATIONAL FRAMEWORK Trafficking Protocol

  • Obligations of ratifying States

    Criminalise trafficking

    Investigate, prosecute and convict traffickers

    Undertake border control measures

  • In accordance with the means of each State

    Provide measures to protect & assist victims

    Train law enforcement & border officials

    Inform & educate victims, potential victims & general public

    Cooperate with each other and civil society


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Department of Justice

Department of Home Affairs

Department of Labour

Department of Social Development

Organised Crime Unit SAPS

Ports of Entry Policing SAPS

International Organisation for Migration

United Nations Office on Drugs and Crime

Molo Songololo

Trafficking in Persons Inter-sectoral Task Team


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INTEGRATED STRATEGY TO PREVENT AND REACTTO HUMAN TRAFFICKING


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Result Area 1: Deepened Knowledge & Understanding of Trafficking

  • Research: Profiles, routes, purposes, size, vulnerable groups to each type, elements

  • Trafficking Management Information System (TIMS)


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Result Area 2: Enhancing coordinated cross-sector response

  • Programme Coordinating Unit (PCU): National Coordinator, Project Manager, Finance Manager and Administrator

  • Support to National Task Team

  • Establishment of Provincial Task Teams

  • Victim’s Assistance Fund: Support to NGOs and Thuthuzela Care Centres

  • Expert Response Team

  • Upgrading of identified courts with high trafficking volume


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Result 3: Capacity Building and Training

Contribution Agreement between IOM and EC

  • Training Needs and Development Analysis

  • Development of Curricula and Training Material (subject to legislation requirements)

  • “Train-the-Trainer” methodology: SAPS, Department of Home Affairs (National Immigration Branch and Refugee Affairs), NPA (DSO, NPS & WPU), Department of Labour, Department of Social Development and NGOs


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Result 4: Prevention, Public Education and Awareness

  • Targeted Vulnerable Group Awareness Strategy

  • Public Education and Awareness Strategy

  • Targeted Prevention Strategy

    Including:

  • National and Provincial seminars and outreach

    workshops

  • Development of outreach material


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Result 5: Evaluation and Audit

Direct management of EC Delegation

  • Annual Financial and Compliance Audit

  • Mid-term Review

  • Final Evaluation


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CURRENT LEGAL FRAMEWORK


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NATIONAL PROSECUTING AUTHORITY“Justice in our society so that people can live in freedom and security"


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Actions taken to counter organised crime challenges

  • Establishment of “Troika methodology” of case management at the DSO: investigators, analysts and prosecutors

  • Establishment of Criminal Assets Recovery Fund (CARA) for the management of the proceeds of crime confiscated by AFU

  • Establishment of Financial Intelligence Centre by FICA for the detection of money laundering

  • Cooperation efforts improved through initiatives such as “Prosecutors without boundaries”, increased requests for mutual legal assistance and the signing of extradition treaties


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LEGAL FRAMEWORK

  • Common Law

    Rape, Indecent Assault, Kidnapping,

    Abduction, Assault (Common & GBH),

    Murder,Crimen iniuria, Extortion

  • Legislation

    Sexual Offences Act 23 of 1957, Child Care Act 74 of 1983, as amended,


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LEGAL FRAMEWORK Cont.

  • Prevention of Organised Crime Act (POCA) 121 of 1998

  • Prevention and Combating of Corrupt Activities Act 12 of 2004

  • Immigration Act 13 of 2002, as amended

  • Films and Publications Act 65 of 1996, as amended

  • Corruption Act 94 of 1992

  • Intimidation Act 72 of 1982


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The basis for mutual legal assistance

  • Extradition Act 67 of 1962

    An extraditable offence is ‘any offence which in

    terms of the law of the Republic and of the

    foreign State concerned is punishable with a

    sentence of imprisonment or other form of

    deprivation of liberty for a period of six months

    or more (but excluding any offence under

    military law which is not also an offence under

    the ordinary criminal law of the Republic and

    of such foreign State)’


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Extradition Act cont.

  • Section 11

    Discretionary powers on the Minister of Justice

    and Constitutional Development to refuse

    extradition

    where it is not required in good faith and is not

    in the interests of justice, or where, for any other

    reason, and having regard to all the circumstances of

    the case,

    extradition would be unjust or unreasonable or too

    severe a punishment


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Extradition Act cont.

Minister’s discretion to refuse extradition where she is

satisfied that the extraditee will be prosecuted,

punished or prejudiced at his or her trial in the foreign

state because of gender, race, religion, nationality or

political opinion.

The Act contains no prohibition on the extradition of

SA nationals to a foreign state or on the extradition of

the nationals of a 3rd state from SA to another state.

Any such limitation must be sought in individual

treaties.


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International Cooperation in Criminal Matters Act 75 of 1996

  • Purpose: to facilitate the provision of evidence and the execution of sentences in criminal cases, as well as the confiscation and transfer of the proceeds of crime between the Republic and foreign States

  • Chapter 2: provision for a Letter of Request in terms of which, any party to the proceedings may submit interrogatories or appear in person at the examination of the witness

  • Sections 20 & 21: in executing a foreign restraint or confiscation order by a SA court, provision is made for the payment of monies to the requesting state, less all expenses incurred in connection with the execution of such order


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Challenges in the response to human trafficking cases

1.Lack of an offence

Process of fitting the various elements of the act into provisions of several Acts of Parliament and the common law

2. Low levels of detection and prosecution


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CASES

State vs Amien Andrews, 2002 (Cape Town)

  • Accused targeted young females in public areas in 1996 and lured them to brothels under false pretences

  • They were tattooed as a means of branding them and introduced to a life of drug addiction

  • Charged with kidnapping, assault to do grievous bodily harm, indecent assault and rape

  • Convicted of all charges and sentenced to a total of 17 years imprisonment


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CASES cont.

State vs Elizabeth Maswanganye, 2006 (Pretoria)

  • Accused lured victims with promises of employment and forced them into prostitution

  • Charged with kidnapping and running a brothel

  • Convicted of running a brothel and soliciting girls for carnal intercourse (sec 2 and sec 14 of Sexual Offences Act)

  • Sentenced to 5 years imprisonment in terms of section 276(1)(i) of Criminal Procedure Act


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CASES cont.

State vs Phillips sub judice -‘The Ranch’ case (Witwatersrand Local Division)

  • Accused charged with running a brothel, living-off the proceeds of prostitution, procuring women to have sex with clients and employing illegal immigrants at The Ranch complex

  • Asset forfeiture proceedings instituted successfully


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Challenges in the response to human trafficking cases cont.

3.Immediate deportation of victims in terms of Immigration Act

(Lindela Deportation Centre)

4. Language barriers

Scarcity of translation services for non-SA languages (case of Thai women in Nelspruit, Mpumalanga in October 2006)


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SHORT TERM SOLUTIONINTERIM LEGISLATION


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1. Children’s Act No.38 of 2005, Children’s Amendment Bill

  • Children’s Act

    • Phase 1: s75 – National impact

    • Phase 2: s76 – Provincial impact

    • Chapter 18 regulates the trafficking of children for all purposes

    • Child’s consent not a defence

    • Extra-territorial jurisdiction with respect to SAs

  • Children’s Amendment Bill

    • Child and Youth Care Centres for trafficked children


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2. Criminal Law (Sexual Offences) Amendment Bill

  • Part 5 – ss 65 to 66: Transitional provisions relating to trafficking in persons (adults and children) for sexual purposes only

  • Absence of consent an element of the offence

  • Inclusion of pornography under ‘purposes’

  • Victims not to be prosecuted for any directly related offence, e.g. contravention of immigration laws or prostitution


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LONG TERM SOLUTIONSA LAW REFORM COMMISSION Project


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SALRC Investigation into Trafficking in Persons

  • Issue Paper – March 2004

  • Discussion Paper and Combating Trafficking in Persons Bill

  • Public Hearings in June 2006

  • Bill initially scheduled to be signed-off to DoJCD by 31 March 2007

  • The enthusiasm expressed in the volumes of additional submissions are currently being considered and integrated into the Bill


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Protocol

(ACTION)

The recruitment, transportation, transfer,

harbouring or receipt of persons

(MEANS)

By means of the threat or use of force, or

other forms of coercion, of abduction, of

fraud, of deception, of the abuse of power

or of a position of vulnerability, or of the

giving of receiving of payments or benefits

to achieve the consent of a person having

control over another person

(PURPOSES)

For the purpose of exploitation. Exploitation

shall include, at a minimum, the exploitation

of the prostitution of others, or other forms

of sexual exploitation, forced labour or

services, slavery or practices similar to

slavery, servitude or the removal of organs

South Africa

(ACTION)

The recruitment, sale, supply, procurement,

capture, removal, transportation, transfer,

harbouring or receipt of persons, within or

across the borders of the Republic

(MEANS)

by any means including the use of threat, force,

intimidation or other forms of coercion,

abduction, fraud, deception, abuse of power or

the giving or receiving of payments or benefits to

achieve the consent of a person having control

over another person; or abusing vulnerability,

(PURPOSE)

for the purpose of exploitation;

includes the adoption of a child facilitated or

secured through illegal means’

Definition of trafficking in persons


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REGIONAL RESPONSES HIGHLIGHTED

  • IOM’s SOUTHERN AFRICAN COUNTER-TRAFFICKING ASSISTANCE PROGRAMME: Migration Dialogues on Trafficking in Persons and Migrant Smuggling, Blantyre, Malawi – 20 to 22 September 2004

  • Interpol Sub-Regional Bureau for Southern Africa (SARPCCO)

    REGIONAL WORKING MEETING: TRAFFICKING IN HUMAN BEINGS, 29 to 30 November 2004

  • SOUTHERN AFRICA NETWORK AGAINST TRAFFICKING AND ABUSE (SANTAC), Kopanong, Jhb – 28 to 29 March 2007

  • UN GIFT: 1st REGIONAL ANTI-HUMAN TRAFFICKING CONFERENCE IN EASTERN AFRICA, Kampala, Uganda – 19 to 22 June 2007

  • AFRICAN PROSECUTORS’ ASSOCIATION, Luanda, Angola – 12 to 14 July 2007


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CONCLUSION

  • Members of the National Religious Forum were recently requested in Cape Town to facilitate behavioural change in offenders, when executing their pastoral duties in prisons

  • Consideration of appropriate sentencing options

  • Strengthening of SADC Secretariat’s efforts in developing a regional response


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END

Adv. Nolwandle Qaba

Sexual Offences & Community Affairs Unit

National Prosecuting Authority


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