*Beginning today we will bring you the above analysis in a two part series courtesy of concerned Catholics in Kenya
History of the Bill
Back in 2004 Kenya ratified the Palermo protocol. In 2007 the government with the help of IOM developed a national plan of action to counter human trafficking. This plan cantered on government ministries and had an opening for the civil society participation. It elaborated activities in prevention, protection and prosecution (commonly known as the 3P). However, the main stumbling block towards the implementation of this plan was the lack of a specific legal instrument. From 2008 to 2009, efforts were intensified to prepare a Kenyan bill to counter human trafficking in and out of the country. The organization that steered this process is known as The Cradle. The preparation of the bill was not easy as earlier versions of the bill were not accepted by the Attorney General. However, by December 2009 the refined bill had been forwarded to the speaker of the national assembly and it underwent the first reading. On the 15th of June it underwent a second reading as a private members bill. On the 6th of July 2010 the third reading was done and the bill was passed. It is currently with the Attorney General of the republic pending its being forwarded to the president who will sign and make it a law of the republic. Our hope remains that the president signs the bill soon enough so that we may have a legal framework in which to prosecute human traffickers.
Rationale
The principal object of the bill is to implement Kenyas obligations under the UN Conventions against Transnational Organized Crime including the Protocol to Prevent, Suppress and Punish Trafficking in Persons, especially women and children and all other relevant international conventions to which Kenya is party. The Bill further seeks to establish the necessary institutional mechanisms for the protection and support of trafficked persons and to ensure just and effective punishment of traffickers.
It outlines the offence of trafficking in persons and related offences. This will be very important as once this bill is passed onto a law, it will serve as an important reference to bring human traffickers to book and it could forbid child labour, forced detention for exploitative purposes such as labour and sexual exploitation of women and children. The bill is comprehensive enough in curbing various forms of exploitation that occur within the chain process of human trafficking here in referred to as recruiting, transporting, transferring, harbouring and receiving (RTTHR henceforth). Some of the past laws related to trafficking of children and women include the Immigration Act 1984, Penal Code 1985, Employment Act 2007, Sexual Offences Act 2006, Children Act 2001, Education Policy, Adoption Guidelines, Vision 2030, Childrens Policy and draft national policy on orphans and vulnerable children.
The existence of various bills meant that there was no particular reference frame for the offence of human trafficking. In Kenya, bringing culprits of human trafficking to justice has always been an uphill task because of the lack of this legal framework. Stakeholders of the bill therefore, hope that the government will move swiftly to pass it into law.
The offence of Human Trafficking
In accordance with the Bill the offences of trafficking in persons to include:
trafficking in persons
acts that promote child trafficking
promotion of trafficking in persons
acquisition of travel documents by fraud or misrepresentation
facilitating entry into and exit out of the country
interfering with documents and travel effects
life threatening circumstances or death and lastly
trafficking in persons for organized crime.
i. Trafficking in personssimply defined by the bill as recruiting, transporting, transferring, harbouring and receiving (RTTHR) another person for the purpose of exploitation by means of
a) threat or use of force or other forms of coercion b) abduction, c) fraud, d) deception, e) abuse of power or position of vulnerability, f) giving payments or benefits to obtain the consent of the victim of trafficking in persons and g) giving or receiving payments or benefits to obtain the consent of a person having control over another person.
The bill considers irrelevant the consent of the trafficked person. RTTHR of a child for purposes of exploitation is considered trafficking in persons too. The bill takes into account acts of trafficking committed internally within the borders of Kenya or internationally across the borders of Kenya. The ultimate penalty is life imprisonment in subsequent convictions. If found guilty, one is liable to fifteen years imprisonment or to a fine of five million shillings or to both.
ii. The bill defines child trafficking as adopting, fostering and offering guardianship to a child for human trafficking purposes. This offence is punishable by a fine of not less than fifteen years of a fine Kshs. 10 million or both. Subsequent conviction could lead to life imprisonment.
iii. Promotion of trafficking in persons occurs when knowingly a person gives his/her premises for human trafficking purposes; publishes or imports or exports materials to promote human trafficking; or promoting trafficking in persons in any other way. The punishment for this is ten years imprisonment and a fine of Ksh. 5million or both. Upon subsequent convictions the imprisonment term is fifteen years without the option for a fine.
iv. Facilitating entry into or exit out of the country occurs when a person facilitates aids or abets the exit or entry of persons from or to the country at international airports, territorial boundaries for purposes of trafficking in persons. The punishment is as iii above but on subsequent convictions one is liable for 10 years.
v. Interfering with travel documents and personal effects includes a) confiscating, concealing, altering, destroying or using identification or travel documents of another person in furtherance of trafficking in persons or b) ) confiscating, concealing, altering, destroying or using personal effects of another person or threatening to do so in furtherance of trafficking in persons or in order to prevent that other person from leaving the country or seeking redress from government or appropriate agencies. Punishment is as iv above.
vi. Life threatening circumstances or death: If during the commission of a human trafficking offence the victim suffers life threatening bodily harm that is permanent or dies or is afflicted with life threatening health condition; the person convicted shall be liable for life imprisonment.
vii. Trafficking in persons for organized crime: occurs when a person engages in trafficking in persons as part of an organized criminal group or the person organizes and directs other persons to commit an offence as an activity of an organized group. The punishment for this is imprisonment for life.
An omission in this section includes the treatment of diplomats. Diplomatic immunity is also a factor in many cases of human trafficking . The Bill has not addressed this issue. This means that the person should be separable when it comes to the commission of criminal acts. The miscellaneous section of the Bill however criminalizes acts by government officers facilitating the acquisition of travel documents for purposes of human trafficking.
Victim Protection
In recognition of the fact that victims of trafficking pass through horrendous experiences during their ordeals the bill provides for their privacy during hearings. The courts may even decide that some of the sessions be held in camera. It is, therefore, important in this case that those who bring a suit on behalf of the victim to the courts (i.e. the state) understand fully the circumstances that the victim passed through so as a determination may be made as to whether the sessions should be held in camera or not. This requires good level of competence in dealing with cases of this nature.
The Bill also proposes that publishing the proceedings held in camera is an offence. The court apart from imprisoning the culprit may also order him or her to compensate the victim. The victim is also given immunity from prosecution. While this immunity is important for the genuine victims, care must be taken that it is not used as a loophole to advance criminal activities. The bill empowers the minister in charge of gender formulate plans for the provision of appropriate services for victims of trafficking in the light of the 3Ps. In order to help the victim find recourse the bill provides that
The victim will be eligible to work during their duration of necessary presence in Kenya
Remain in Kenya until their legal proceeding are concluded
Be communicated to in a language he/she understands
Exempted from court fines
Assistance in repatriation
So far, there are many challenges in todays Kenya as far as victim assistance is concerned. It will be important to ensure that the legal system is made to work faster in cases of this nature so as it does not become burdensome for a victim taking time in Kenya waiting for justice. Secondly, there are very few safe havens for trafficking victims. At times, victims have been placed in police custody while waiting for the final recourse. Repatriation always poses a challenge; is it enough to give the victim money to go home or to put him/her in an efficient transport means back home? Certainly not, as the victim will need to be assisted reintegrate back to her/his original society fully. Reintegration is first self restoration and second, the ability to fit into the society. It must be observed here that the victim coming from a trafficking ordeal might have been subjected to a heavy legal ordeal and other energy draining ordeals in a strange place. Many a time they experience shame and bitterness which is directed to their home societies. Hence the costs of rehabilitation and reintegration are just too enormous and can only be met superficially in order to fully meet the needs of the victims. Lastly, issues of psycho social accompaniment in order to help the victim deal with the aftermath effects of trauma are important; including psychological counselling and religious accompaniment.
Views expressed in this section do not necessarily represent the opinions of CISA
