Chapter Four: Reactive Solut ions after Trafficking for African Countries 233
4.2 Anti-Trafficking Legislation
- This part discusses the content ofan anti-trafficking lawmodel suggested by the Palermo Protocol. Guidelines on the elements that such a law must encompass are outlined in the Palermo Protocol. Other elements are to be found in the Transnational Convention and United Nations human rights conventions analyzed in chapter two above. Given that the prevention component has been discussed in the previous chapter,the exploration below stresses only the prosecution and protection measures which should be incorporated in such laws.
Few African countries have enacted legislation prohibiting all forms of child trafficking.i'" Unfortunately, these countries' anti-trafficking law enforcement efforts are
240Fo~instance, it is said that South Africa is not developing procedures for victim protection, including screenmg of undocumented immigrantsforsigns ofvictimization before deportation.
modest, resulting in ineffective protection of children.242The remaining countries do not have anti-trafficking laws. They possess provisions in their respective constitutions and various statutes that can be used to prosecute trafficking cases. Unfortunately, factors such as lack of political will,weak law enforcement and complexity of trafficking impede
• J:: duci . . 1 243
these countnes rrom pro ucmg positiveresu ts.
The mam factor explaining the incapacity of most African countries to fight child trafficking is the lack of comprehensive anti-trafficking legislation and/or weak law enforcemcnt.i'" With only few African countries with anti-trafficking laws by 2008, the situation is far from getting better. The situation isdifferent in African countries that have enacted an anti-trafficking legislation. Madagascar, for instance, which has a comprehensive anti-trafficking legislation, is able to crack down on local officials directly or indirectly involved in trafficking and to apprehend more trafficking suspects.245 Government officials, judicial officers and prosecutors are removed, suspended and tried for their participation in trafficki ng and many traffickers have been arrested.246Therefore,it is urgent that all African governmentsenact comprehensive anti- trafficking laws and enforce them. However, lack of specific anti-trafficking legislation cannot justify lack of action. Until specific domestic legislation on trafficking is passed, existing United Nations treaties and African Union laws as well as national provisions
24 1 African countries that do have specific anti-trafficking laws prohibiting all forms of child trafficking are Benin,Burkina Faso,Cameroon,Djibouti,Ghana,Guinea,Liberia,Madagascar,Malawi,Mali,Mauritania, Mauritius,Morocco,Mozambique,Nigeria,Senegal,Sierra Leone,Togo and Zambia.
242 Protection Projects op cit note 108 above; United Nations Office on Drugs and Crime Measures to combat Trafficking in Human Beings in Benin, Nige ria, Togo (2006) available at www.childtrafficking.com/content/library/(accessed 12 June 2009),TIP report op cit note 2 above at 52- 229,TD Truong & ME AngelesSearchingfor Best Practices to Counter Human Trafficking in Africa: A Focus on Womenand Children (2005 )available atwww.childtraffick ing.com/c ontent/librmyl(accessed 12 June 2009) at 23.
243 The United Nations Office on Drugsand CrimeCombatingTraffic king in Persons:A 2005 Ass essm ent oJ the Laws and Measures Relevant to Human Trafficking in Selected SADC Countries: Malawi, Mozambique, South Africa and Zambia (2007) available at www.childtrafficking.com/content/librmyl (accessed 12 June 2009);Anti-Slavery InternationalReportof theEasternand Horn ofAfrica Conference on Human Traffickingand ForcedLabour (2005) available at www.childtraffic king.com/ content/ librmyl (accessed 12 June,2009);TIP report op cit note2aboveat 52-229.
244 C Allais An Overvi ew of Human Trafficking in Sub-Saharan Africa (2006) available at www.childtraffick ing.com/content/ library/ (acces sed 12 June 2009); see also United Nations Office on Drugs and Crimeopcitnote 238 above.
245TIP reportopcitnote2aboveat 171.
246Ibid.
concerning slavery and work under slavery like conditions can be used to fight child trafficking on the African continent,247
A model of a comprehensive anti-trafficking law that is to be recommended for African countries is presented below. At national level comprehensive legislation would encompass, in addition to the preventive measures analyzed in chapter two above, prosecution and protection measures. Prosecution strategies include: identification, investigation and conviction of public officials and all actors who are involved in this crime;creation of trafficking as a distinct crime with severe sanctions to discourage any criminal motives; and provision of appropriate training to law enforcement units. 248 Extraterritoriality, extradition and mutual legal assistance must be incorporated in the legislation.r'" Traffickers' assets must be confiscated in appropriate cases and used to compensate victims of trafficking.250
Protection measures include: protection of victims from 'summary deportation', and from prosecution for crimes committed as a direct consequence of being trafficked.Y' Reintegration into social life and development of programmes aimed at mental, physical and psychological healing ofvictims need to be prioritized.252Furthermore, victims of trafficking are to be protected from further exploitation and accorded legal and social assistance for the duration of any proceedings againsttraffickers.f''' They must be safely repatriated to their countries of origin and provided with legal alternatives to repatriation if their return would pose a danger to their safety.254
In conclusion,child trafficking is a relatively new phenomenon that cannot be eradicated using ordinary criminal laws. To be able to eradicate trafficking in children African
247Fischercorrectly notesthat African countrie swithout anti-trafficking legislation can avail themselves of international standards as a means of interpreting national law, even if these standards are not directly applicable or legally binding.
248Article 5 of the Palermo Protocol.
249Article 10 Ibid.
250Article 12 and 14 of the Tans-NationalConvention.
251Article 6 of the Palermo Protocol; seealsoKreston opcit note8 aboveat 42.
252Article 6 of the Palermo Protocol.
253Ibid.
254Article 8 of the Palermo Protocol.
countriesshould enact anti-trafficking laws. These lawsmust encompass measures aimed at preventing, prosecuting and protecting child victims of trafficking as recommended in the Palermo Protocol. However, the enactment of laws needs to be accompanied by adequate enforcement. The latter presents a challenge for many African countries in which trafficking phenomenon and laws addressingitare quite foreign. Thus,the training of all the actors involved in the criminal justice system is imperative.