Presented by Muko Ochanda
History of the Act
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 centered 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 Act to counter human trafficking in and out of the country. The preparation of the Act was not easy as earlier versions of the Act were not accepted by the Attorney General. However, by December 2009 the refined Act 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 member’s Act. On the 6th of July 2010 the third reading was done as a private member’s bill. It was eventually signed into law by the president in October 2010.
Rationale
The principal object of the Act is to implement Kenya’s 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 Act 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 Act 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 Act 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, harboring 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, Children’s Policy and draft national policy on orphans and vulnerable children.
The existence of various Acts meant that there was no particular reference frame for the offense 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 Act therefore, hope that the government will move swiftly to pass it into law.
The Offense of Human Trafficking
In accordance with the Act the offenses of trafficking in persons to include i) trafficking in persons ii) acts that promote child trafficking iii) promotion of trafficking in persons iv) acquisition of travel documents by fraud or misrepresentation v) facilitating entry into and exit out of the country vi) interfering with documents and travel effects vii) life threatening circumstances or death and lastly viii) trafficking in persons for organized crime.
i. Trafficking in persons simply defined by the Act as recruiting, transporting, transferring, harboring 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 Act considers irrelevant the consent of the trafficked person. RTTHR of a child for purposes of exploitation is considered trafficking in persons too. The Act 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 Act 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 Kshs. 5 million 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 offense 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[1]. The Act 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 Act 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 Act 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 Act 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 Act empowers the minister in charge of gender formulate plans for the provision of appropriate services for victims of trafficking in the light of the 3P’s. In order to help the victim find recourse the Act 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 today’s 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 times 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 counseling and religious accompaniment.
National Advisory Committee Against Trafficking in Persons
The Act proposes a national committee headed by the PS in the Ministry of Home Affairs. Other members of this committee include PS for immigration, PS foreign affairs, PS gender, PS children, PS Labour, PS health, PS tourism, the Attorney General, Commissioner of Police, Kenya National Commission for Human Rights representative, two representatives of the civil society, trade unions representatives, Federation of Kenya Employers representative.
The two representatives of the civil society, trade unions representative, Federation of Kenya Employers representative will be appointed by the Minister for Gender issues and shall hold office for a term of three years renewable once.
The National Advisory Committee will have a role of first advising the minister on inter agency activities aimed at combating trafficking and the implementation of prevention, protection and prosecution. The committee shall advice the minister on formulation of integrated programs, coordination of policies and programs, coordination of the dissemination on the law, formulation of local and international reintegration programs, progress monitoring and evaluation, consultancy and advocacy, compilation and documentation of data, coordinated and effective response, multi lateral and bilateral cooperation for enhancement of the 3Ps. On victim support, the committee shall advice on education and protective programs, provision of psycho-social support, community based support mechanisms and self help centers; victim screening, public campaigns and lastly provide information on overseas employment.
Certainly this section has included the many of the involved ministries and other relevant bodies such as the civil societies, trade unions and federation of Kenya employers. One suggestion would have been the inclusion of a representative of the trafficked persons; as the saying goes “no one knows the pain of the shoe apart from the shoe wearer.”
National Assistance Trust Fund for Victims of Trafficking in Persons
The Act establishes a National Assistance Trust Fund for TIP victims. The fund shall be used for the assistance of victims of trafficking in persons. Financing of the funding will be through a) income generated by investments made by the Board of Trustees b) proceeds confiscated and forfeited from criminals of TIP and c) donations made for the purposes of the fund. This fund will provide for expenses of human trafficking victims, also the balance of damages and any other purpose the advisory committee recommends.
The Board of Trustees consists of the secretary of the advisory committee who is the PS home affairs, one person with experience in financial management and another person conversant with issues related to TIP. The Board of Trustees shall be appointed by the minister of Gender by notice in the Kenya Gazette.
Miscellaneous Provision
The Act once enacted will apply to crimes committed within and out of Kenya with the same intensity. It will however consider acquittals and convictions in countries where the offence was committed and hence not re-penalize the culprit. Non citizens shall be deported immediately after serving their sentences. Government employees who issue travel documents without observing prescribed laws and procedures with the intention of committing TIP will find themselves liable to twenty five years imprisonment or to a fine not less than five million. An adopter or foster or guardian of a child with an intention to commit a crime shall rescind the adoption and be dealt with in accordance to the provisions of Children Act 2001.
Schedules
The first schedule of the Act sets the conduct of business and affairs of the advisory committee. This includes appointment, removal from office and the frequency and procedure of meetings. The second schedule provides for consequential amendments which are in relation to some sections of other Acts such as the Penal Code Cap 63 (amends Sec 260, Sec 266 and repeals Sec 264, Sec 265) sexual offences Act 2006 (Sec 13(3)) and Children’s Act 2001 (Sec 2(8) and Sec 76(8)).
[1] Slave next door
Consolation in East Africa 