Analysis of the 2008 Anti Trafficking in Persons Law in Tanzania

Presented by  Muko Ochanda

Introduction

Enough efforts have gone to develop the Tanzanian Anti Trafficking in Persons Act 2008. By April 2008 the Bill had gone through the third reading . It was given the presidential assent in 2008 August. Before the eventual development of this bill, it was extremely difficult  to bring criminals to book for the offense of human trafficking. By 2009, while waiting to operationalize the bill, some of the offenses that could have well be considered as human trafficking were still tried under the offense of illegal immigration.  Using illegal immigration as a charge meant that some of the people charged might have been victims of human trafficking. It is rare that a perpetrator of human trafficking would fall in the category of illegal immigrant as most of them have good connections with the immigration officers both in their home countries and the foreign countries. In any case, they would also not have any problems with documentation.

Human trafficking as an offense before the enactment of the Tanzanian Anti Trafficking in Persons Act 2008 was barely referred by other laws of Tanzania. The enactment of this law has hence introduced human trafficking to several other laws such as The immigration Act, The Police Force Act, Criminal Procedures Act, The Penal Code and the Anti-Money Laundering Act. Reference to trafficking by criminal procedures Act is made under chapter XVII on nuisances and offenses against health and convenience section 175 where a police officer is empowered to arrest a person suspected of trafficking in obscene publications. Once such a person is successfully convicted, he may be imprisoned for two years.   The other reference to trafficking by criminal procedures Act in in section 5a(ii) which criminalizes drug trafficking.  The penal code did not have the word “trafficking” in it.

The sexual offenses Act of 1998 had a much more detailed section on human trafficking under section 139a(i). It defined human trafficking as buying, selling or bartering of any person; promotion of trading in people; any act promoting or assisting the trade in people; getting consent to adopt unborn child from a pregnant mother; recruiting people for purposes of trafficking; and procuring children from hospitals, shelters of houses of care and protection and lastly impersonating oneself as a parent. The act provided a minimum sentence of 20 to a maximum of 30 years imprisonment. The fine imposed was Tshs. 100,000.

The enactment of the anti-trafficking in persons Act 2008 therefore is a great leap towards protecting the poor and the vulnerable. The preamble sees the enactment of the law as a positive step towards valuing the dignity of every human person and guaranteeing the respect of individual rights. It is hoped that the law will lead to the development of programs that will promote human dignity, protect people from threat of violence and exploitation, eliminate human trafficking and lead to development of assistance measures to trafficked victims.

The offense of human trafficking

The law divides the offence of human trafficking into three viz; acts of trafficking in persons; acts that promote or facilitate trafficking in persons, severe trafficking in persons; trafficking in persons by intermediary; and lastly use of trafficked persons.

A person commits an offense in human trafficking if he recruits, transports, harbours, provides or receives a person for purposes of human trafficking. This may include marriage; sex tourism and exploitation; trafficking of a child under the false pretexts of adoption or guardianship. The consent of the victim is immaterial as a defense in court. The culprit is liable to between two and ten years imprisonment or a fine of a hundred million Tanzanian shillings.

Acts that promote trafficking in persons include offering one’s premises for human trafficking purposes; faking or issuance of government documents for purposes of promoting trafficking in persons; promoting in any way propaganda advancing human trafficking; obtaining government documents for purposes of trafficking in persons; facilitating entry and exit or preventing exit for purposes of promoting trafficking in persons : and benefiting from proceeds of human trafficking. The penalty for acts that promote trafficking in persons is two million to fifty million shillings fine and one to seven years imprisonment.

Acts promoting severe trafficking in persons include circumstances where a child has been trafficked under the pretext of adoption or otherwise for exploitative purposes; the offense is committed by a syndicate (2 or more); the offender has a kin or a power relationship with the victim; the offender is a military; or the victim suffers life threatening conditions. The penalty for severe acts of trafficking include a fine imposition of five million to one hundred and fifty million shillings and imprisonment ten to twenty years.

A person who acts as an intermediary for purpose of trafficking commits an offense. The intermediary submits to take a person; gives consent; receives at any place; enters into oral or written agreement for purposes of trafficking in persons.  Intermediary acts for purpose of trafficking attract a fine of four million to one hundred and fifty million Tanzanian and imprisonment of   seven to fifteen years.  Lastly is the person who makes use of the trafficked person for purposes of trafficking. The fine for using trafficked people is between one to thirty million Tanzanian shillings and imprisonment is between one to seven years.

Investigations and judicial proceedings

The law provides the right to confidentiality to the victim and the accused and the courts after considering all the circumstances may grant that the proceedings be held in camera. The personal particulars of the victim will not be disclosed to the public and no transmission of this information is permitted by any means whether electronic or print. This section further provides mechanisms of reporting a trafficking crime, the role of the police in assisting the victim, investigating the crime and finally arresting the accused. Lastly it empowers the courts to impose severe penalties for subsequent convictions and provides compensation to the victim emanating from the proceeds of the crime by the accused.

Rescue, rehabilitation, protection and assistance to victims

The public officers in security services are responsible for the rescue and rehabilitation of the trafficked person.  Social welfare officers are responsible for psycho social assistance. Special provision is made in respect to children and the disabled. Support to victims shall not be conditioned upon willingness to bring the perpetrators to book.  Services to victims shall be dependent on resource availability and do include interpretation, legal counsel, safe housing, psycho-social, repatriation etc. The government through its social welfare programme is empowered by the act to establish programmes for prevention, protection and rehabilitation of trafficked persons. These programmes will be established in collaboration with various ministries such as foreign affairs, social welfare, labour and employment a dn lastly legal affairs ministry.

The anti human trafficking fund and anti human trafficking committee

The Act establishes an anti-trafficking fund which includes appropriations by the parliament; voluntary contributions from individuals, NGOs and private sector; grants from bi lateral and multi-lateral organizations; monies and property that may become payable or vested in the fund; and all other sums that may be disbursed for the fund. The funds shall be applied to support material needs of victims; training of victims; family tracing; and any matters concerned with rehabilitation and reintegration of victims in persons to countries of origin.

The Act also establishes an anti trafficking committee which will be responsible for defining, promoting and coordinating the policy of the government for prevention and control of trafficking in persons. The secretariat of this committee shall be supported by nine people appointed by the minister of social welfare. Representatives of the committee will comprise of ministries of social welfare in Mainland and Zanzibar, women and children in Mainland and Zanzibar, AG’s chamber lawyer, local government, foreign affairs, labour police force or other security services such as immigration, Tanzania Intelligence security Services and the Refugee services, representative of NGOs in Mainland and Zanzibar, representative commission for Human Rights and Good Governance; two representatives from other civil organizations appointed by the minister.

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