Trafficking - Advocacy Brief-CTIP Bill-F

7/28/2019 Trafficking - Advocacy Brief-CTIP Bill-F

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The CRADLE-The Children Foundation, 2010

Why the Counter Trafficking in Persons Act needs

to be Promptly in Place

Advocacy Brief


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Advocacy Brief: TC/ABS/1/

Why the Counter Trafficking in Persons Act Needs to be Promptly in Place

A. Defines the offence of human and child trafficking

The Act defines the offence of trafficking in persons which even though mentioned in other laws such as the

Children Act, the Sexual Offences Act and the Employment Act has not been comprehensively defined. It crimi-

nalizes trafficking in persons which entails three components, namely:

Act: this entails the recruiting, transporting, transferring, harbouring or receiving a person

Means: which include threat, use of force, other means of coercion, abduction, fraud, abuse of power,

abuse of position of vulnerability, giving payments or benefits to obtain consent, giving or receiving pay-

ments or benefits to obtain the consent of a person who has control over another person. Where any of the

means described are used, the fact that a person consented to being trafficked is immaterial.

Purpose: This is exploitation that includes: enslaving, involuntary servitude, use of human being for removalof organs or body parts, forcing someone to take part in armed conflict, forced labour, child labour, sexual

exploitation, child marriage, forced marriage.

Trafficking in children however suffices to be a crime irrespective of the means that are used.

B. Introduces New Offences with Stiffer Penalties

Trafficking in persons which attracts a penalty of thirty years or a fine of not less than thirty mil-

lion shillings or to both. A subsequent conviction attracts life imprisonment.

Financing, controlling, aiding or abetting the trafficking of persons is also an offence punishablewith not less than thirty years imprisonment or a fine of not less than thirty million shillings or to

both. A subsequent conviction attracts life imprisonment

Acts of trafficking against children such as the adoption, fostering, guardianship of children for

purposes of trafficking is an offence that is punishable with not less than thirty years imprison-

ment or a fine of not less than twenty million or to both. This offence targets persons who not

only adopt, foster or take up children under guardianship but also persons who initiate or attempt

to initiate

Acts that promote trafficking in persons which include: (i) knowingly leasing out or allowing prem-

ises that one occupies or owns to be used to promote human trafficking; (ii) publishing, exportingor importing materials; (iii) managing, running or financing any job recruitment agency for pur-

poses of promoting human trafficking. This attracts a penalty of not less than twenty years im-

prisonment or a fine of twenty million shillings and life imprisonment upon subsequent convic-

tion.

Knowingly misrepresenting facts in order to acquire travel documents or acquiring travel docu-

ments through fraud in order to assist in trafficking persons is punishable by not less than ten

years imprisonment or a fine of not less than ten million.


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Facilitating, aiding or abetting a person to enter or leave the country at airports, territorial

boundaries, or seaports in order to promote human trafficking which attracts a penalty of not less

than thirty years imprisonment or a fine of not less than thirty million shillings or both and upon

subsequent conviction imprisonment for a term of thirty years without the option of a fine

Interfering with travel documents or personal items of a person by concealing, confiscating, alter-

ing, destroying or dealing in any other way in furtherance of human trafficking or in order to pre-

vent a person from leaving the country or seeking assistance which offence attracts not less than

ten years imprisonment or a fine of not less than ten million shillings or to both and ten years im-

prisonment without the option of a fine upon subsequent conviction

C. Provides for Additional Penalties:

Confiscation and forfeiture of proceeds of crime in addition to any other penalty that may be im-

posed and this will be channeled to supporting the National Assistance Fund for Victims of Traf-

ficking in Persons

Where the offender has interfered with the proceeds of crime to avoid their confiscation and for-

feiture, the offender is, in addition to the penalty imposed by the court, be liable to pay an

amount that is equal to the value of those proceeds.

Deportation and permanent barring from re-entering Kenya of convicted persons after serving

their sentences.

Punishment (of not less than twenty years imprisonment or not less than five million shillings or

both) for an employee or an official of a government agency who issues or approves issuance of

travel or other documents or fails to observe prescribed procedures with the intention of assisting

in trafficking of persons

Quashing an adoption, fostering or guardianship of a child by a person who is the subject of an

offence

D. Recognizes Aggravating circumstances that have the impact of enhancing the penalty

imposed:

The Act recognizes than in the following circumstances, the sentence can be enhanced to life impris-

onment:

Where a victim of human trafficking suffers a permanent or life-threatening bodily harm;

Where a victim of human trafficking dies or is afflicted with life threatening or terminal health

condition as a result of the act of human trafficking

Where a person is engaged in human trafficking as part of activities of an organized criminal

group


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Where a person organized or directed other persons to commit an offence of human trafficking

being part of an activity of an organized group

E. Protection and Support Guaranteed for Victims of Human Trafficking

The Act seeks to support victims of trafficking including the process of prosecuting the offenders. This includes:

Protection of the right to privacy of victims of human trafficking and witnesses which may be assured

through holding a trial in chambers. It is therefore an offence to (i) disclose the name and circumstances of

the victim or any information which may lead to the identification of the victim and (ii) publish proceedings

of a trial that was held in camera. This is offence is punishable by imprisonment for a term of not less than

five years or a fine of not less than five million shillings or both and where the offender is a body corporate,

to a fine of not less than ten million shillings.

Provision of victim impact statements to determine circumstances surrounding the commission of the of-

fence and to inform the Court in determining an appropriate sentence

In addition to conviction, redress to a victim may include compensation for costs of medical/psychosocial

treatment, costs of transportation, accommodation, living expenses and any other relief that the Court may

consider.

Protection of a victim from prosecution for an offence related to being in Kenya illegally or any other crimi-

nal act that was the direct result of being trafficked.

Support for victims of human trafficking and children accompanying them including: return to and from

Kenya, resettlement, reintegration, shelter and other basic needs, psychosocial support, medical assistance,

legal assistance and information and other necessary assistance. Where repatriation is necessary, the gov-

ernment will have a duty to arrange for the same including issuance of travel documents.

Permission to work for gain during their necessary stay in Kenya

Permission to stay in Kenya during the period of legal proceedings or for a period that is necessary for the

protection of the victim.

Facilitated communication in a language that the victim understands

Support to be provided regardless of a victims nationality.

Exemption from Court fees in seeking damages under civil proceedings.

Establishment of the National Assistance Trust Fund for Victims of Trafficking in Personsto be managed bya Board of Trustees

F. Will be a Useful Tool for Proactive Action to Combat Trafficking in Persons

Establishes an Advisory Committee that has representation from government ministries, State Law Office, Police,

civil society, Kenya National Commission for Human Rights, Central Organization of Trade Unions and the Fed-

eration of Kenya Employers


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Functions of the Advisory Committee will be broadly aimed at combating trafficking and imple-

mentation of preventive, protective and rehabilitative programmes for trafficked persons.

Extra-territorial jurisdiction, where a Kenyan citizen or a person who permanently resides in Kenya

would be liable for punishment for committing an offence outside Kenya which is recognized as a

criminal act in Kenya under the Act.

G. Opportunity for Bridging Legislative Gaps in Existing Legislation

The Counter Trafficking in Persons Act will seek to strengthen the law by improving existing provisions

in the Penal Code, the Children Act, Sexual Offences Act, Employment Act, and Immigration Act:

Children Act, 2001 provides for the protection of children from physical and psychological abuse,

neglect and any other form of exploitation including sale, trafficking or abduction by any person

The Act does not provide for the a specific penalty for the offence of child trafficking thus, where

there is no other provision in law, an offender will be punished under Section 20 of the Act by im-prisonment for a term of not more than 12 months or a fine not exceeding fifty (50) thousand shil-

lings.

This is clearly, a very lenient sentence that does not take into account the different types of offences and

their impact on a child victim. Due to this gap, the Act does not offer adequate legal recourse where there

are deficiencies in other pieces of legislation.

Sexual Offences Act, 2001 provides for the offence ofchild trafficking. It targets anyone involved

in (i) making travel arrangement for or on behalf of a child in order to facilitate a sexual offence

against a child (it does not matter if the offence is committed); (ii) supplying, recruiting, transport-

ing, harbouring or receiving a child for purposes of committing a sexual offence with the child or

another person. The penalty for those convicted for this offence is imprisonment for a term of not

less than ten years and where the offender is a juristic person, a fine of not less than two million

shillings.

The Act also provides for the offence oftrafficking for sexual exploitationwhich entails knowingly

or internationally arranging or facilitating the travel of a person and (i) intends to engage to do

anything to or in respect of the person being trafficked during or after the journey which will lead

to the commission of a sexual offence or (ii) believes that another person will during or after the

journey do anything to or in respect of the person being trafficked that will lead to the commission

of a sexual offence. The penalty is an imprisonment term of not less than fifteen years or a fine of

not less than two million shillings or both.

This is the most progressive provision in place but only limited to sexual offences.

Employment Act, 2007 protects children from worst forms of child labour which in respect to

children means employing, engaging or using children in any activity which among others entails

all forms of slavery or practices similar to slavery such as the sale and trafficking of children. Using

a child in an activity constituting worst forms of child labour is an offence punishable by a fine not

exceeding 200,000 shillings or an imprisonment term of not more than twelve months or both.


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This offence therefore does not capture the instance of the child as a victim of trafficking, rather

engaging a child in processes which include child trafficking.

The Act also prohibits the use or assisting another person in recruiting, traffickingor using

forced labour. Contravention of this prohibition attracts a fine of not more than five hundred

thousand shillings or an imprisonment of not more than two years or both.

The Act therefore does not criminalize the act of child trafficking as it only goes to the extent

of criminalizing the act of using someone for such acts as trafficking in persons.

Penal Code, Cap. 63 does not make specific provision on human and child trafficking. The Act

however, has provisions on abduction and kidnapping. It criminalizes:

a) kidnapping from Kenya defined as conveying a person beyond the limits of Kenya without the

consent of that person, or the consent of a person who is legally authorized to consent of the

legal guardian and is punishable with imprisonment for seven years.

b) kidnapping from lawful guardianship which is the taking or enticing of a minor male of under

fourteen years, a minor female of under sixteen years of age or a person of unsound mind pun-

ishable with to imprisonment for seven years.c) abduction which entails inducing a person by deceitful means or compelling a person by force

to go from any place;

d) Kidnapping or abducting a person for murder, or cause the kidnapped person to be put in

danger of being murdered, is a felony punishable by imprisonment of ten years.

e) Kidnapping or abducting a person with intent to secretly and wrongfully confine that person is

a felony punishable by imprisonment for seven years

f) Kidnapping or abducting a person to be subjected a person to or put the kidnapped person in

danger of being subjected to grievous harm, slavery, or unnatural lust is a felony punishable by

imprisonment of ten years.

g) Wrongful concealing or keeping in confinement of a kidnapped or abducted person is a felony

punishable in the same manner as if the person committing the offence had kidnapped or ab-ducted a person with the same intention, knowledge or purpose

h) Kidnapping or abducting a child under the age of fourteen years with the intention of taking

dishonestly any movable property from the child is a felony punishable by imprisonment of

seven years

i) General wrongful confinement of a person is a misdemeanour punishable by imprisonment

term of one year or a fine of fourteen thousand shillings.

The above highlights show that as much as minimum legal protection is available on kidnapping and

abduction, there are still unmet standards as highlighted below:

a) The prescribed sentences are lenientas for instance the offence of kidnapping or abducting aperson for murder.

b) Provisions are not alive to the impact of an offence on the victim, so that the accompanying

penalty is alive to aggravating circumstances gauged on such impact with the effect of enhanc-

ing the penalty accordingly.

c) The Penal Code is not in tandem with the Children Act in the context of definition of a child

since it limits the offence of kidnapping from lawful guardianship to a child of 14 years if male

and a child of 16 years if female


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d) There is no provision for confiscation and forfeiture of proceeds of crimeas it only prescribes

imprisonment term for offenders, yet in reality; criminals make money through ransom de-

mands.

Immigration Act: The Act does not have specific protective provisions relating to child trafficking.

In fact, the certain provision in this Act may be used to victimize victims of human trafficking. This

entails the provision on prohibited immigrants who include the following:a) a person who is not a citizen of Kenya and who is incapable of supporting himself and his dependants in

Kenya; or a mental defective or a person suffering from mental disorder

b) a prostitute, or a person who is living on or receiving, or who before entering Kenya lived on or received,

the proceeds of prostitution

c) a person who, upon entering or seeking to enter Kenya, fails to produce a valid passport to an immigra-

tion officer on demand

d) a person whose presence in or entry into Kenya is unlawful under any written law other than this Act

e) a dependant of any of the persons mentioned above

The Immigration Act fails to consider the fact that victims of human trafficking are often in a vulner-

able and disadvantaged position and may indeed fit the description of illegal immigrants thus, may be

victimized as offenders. The Counter Trafficking in Persons Act seeks to guard against this instance.

If the Counter Trafficking in Persons Act is not implemented, then prosecution of cases will continue to

be limited by the lack of comprehensive provisions for the protection of people especially children

from trafficking and prosecution of offenders.


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The CRADLE-The CHILDREN Foundation

The CRADLE

The Children Foundation

Ms. 2&3 Adj. Wood Avenue Apartments

Wood Avenue Kilimani

P. O. Box 10101-0010 NAIROBI

E-mail: [email protected]

Website: www.thecradle.or.ke
mailto:[email protected]://www.thecradle.or.ke/http://www.thecradle.or.ke/mailto:[email protected]

Trafficking - Advocacy Brief-CTIP Bill-F

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