Scripta Varia

The legal framework: international, regional and national

Hon. Christine Njagi Mmbwanga
Jkia Law Court
Senior Resident Magistrate

Introduction

Worldwide, it is estimated that human trafficking is amongst the most lucrative criminal activities. The Palermo Protocol defines human trafficking as the recruitment, transportation, transfer, harbouring or receipt of persons, by means of the threat or use of force or other forms of coercion, of abduction, of fraud, of deception, of the abuse of power or of a position of vulnerability or of the giving or receiving of payments or benefits to achieve the consent of a person having control over another person, for the purpose of exploitation.

Human Trafficking takes a number of forms which include sexual exploitation (sex trafficking), labour trafficking, and trafficking for cultural reasons in general, and extraction of body parts and/or organs in particular. Trafficking also occurs domestically (domestic trafficking) and across borders of different nations (external trafficking). Human trafficking is a criminal process and not a criminal event.

This paper will outline the legal framework in human trafficking cases from the international perspective to the regional perspective and lastly narrow down on the legal framework in the Kenyan context.

A.              International Legal Framework

International law is the body of rules and principles that governs the relations and dealings of States with each other. International law imposes specific obligations on States and grants them specific rights, just as domestic law does with individuals. A treaty is an agreement, between two or more States, that creates binding rights and obligations in international law. Treaties can be universal (open to as many States as want to join) or restricted to a smaller group of two or more States (for example, those in a particular geographical region). A treaty may be called by different names, such as “convention”, “covenant” or “protocol”. Recommended principles and guidelines on human rights and human trafficking commentary: Office of the United Nations High Commissioner for Human Rights.

International Instruments

1.              The UN Convention against Transnational Organized Crime (UNTOC) came into force 29 September, 2003 and there were 189 parties and 147 signatories.

2.              The Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children (the Palermo Protocol), came into force 25 December 2003 and there were 173 parties and 117 signatories.

Article 3 looks at the definition and use of terms in human trafficking: “Trafficking in persons” shall mean the recruitment, transportation, transfer, harbouring or receipt of persons, by means of the threat or use of force or other forms of coercion, of abduction, of fraud, of deception, of the abuse of power or of a position of vulnerability or of the giving or receiving of payments or benefits to achieve the consent of a person having control over another person, for the purpose of exploitation. Exploitation shall include, at a minimum, the exploitation of the prostitution of others or other forms of sexual exploitation, forced labour or services, slavery or practices similar to slavery, servitude or the removal of organs. Article 5: Criminalization of human trafficking; Article 6: Assistance to and protection of victims of trafficking in persons; Article 7: Status of victims of trafficking in persons in receiving States; Article 8: Repatriation of victims of trafficking in persons; Article 9: Prevention of trafficking in persons.

3.              The Protocol against the smuggling of Immigrants by Land, Sea and Air entered into force on 28 January 2004 and there were 146 parties and 112 signatories.

4.              Two International Labour Organization (ILO) conventions focus on forced labour or services: The ILO Forced Labour Convention (Convention No. 29 of 1930) and its newly adopted Protocol, which defines forced or compulsory labour, and the ILO Abolition of Forced Labour Convention (Convention No. 105 of 1957).

5.              Convention No. 182: Convention Concerning the Prohibition and Immediate Action for the Elimination of the Worst Forms of Child Labour Adopted by the Conference at its Eighty-Seventh Session, Geneva, 17 June, 1999.

Article 1: notes that members shall take immediate and effective measures to secure the prohibition and elimination of the worst forms of child labour as a matter of urgency; Article 2: For the purposes of this Convention, the term “child” shall apply to all persons under the age of 18; Article 3: For the purposes of this Convention, the term “the worst forms of child labour” comprises: (a) all forms of slavery or practices similar to slavery, such as the sale and trafficking of children, debt bondage and serfdom and forced or compulsory labour, including forced or compulsory recruitment of children for use in armed conflict; (b) the use, procuring or offering of a child for prostitution, for the production of pornography or for pornographic performances; (c) the use, procuring or offering of a child for illicit activities, in particular for the production and trafficking of drugs as defined in the relevant international treaties; (d) work which, by its nature or the circumstances in which it is carried out, is likely to harm the health, safety or morals of children.

6.              The Slavery Convention was signed at Geneva on 25 September 1926. It came into force 9 March 1927, in accordance with Article 12.

The Convention was amended by the Protocol done at the Headquarters of the United Nations, New York, on 7 December 1953; the amended Convention entered into force on 7 July 1955, the date on which the amendments, set forth in the annex to the Protocol of 7 December 1953, entered into force in accordance with article III of the Protocol. Article 1: For the purpose of the present Convention, the following definitions are agreed upon: Slavery is the status or condition of a person over whom any or all of the powers attaching to the right of ownership are exercised; The slave trade includes all acts involved in the capture, acquisition or disposal of a person with intent to reduce him to slavery; all acts involved in the acquisition of a slave with a view to selling or exchanging him; all acts of disposal by sale or exchange of a slave acquired with a view to being sold or exchanged, and, in general, every act of trade or transport in slaves.

7.              The International Covenant on Civil and Political Rights (ICCPR) prohibits a number of practices directly related to trafficking, including slavery, the slave trade, servitude and forced labour.

8.              Convention for the Suppression of the Traffic in Persons and of the Exploitation of the Prostitution of Others Approved by General Assembly resolution 317 (IV) of 2 December 1949 Entry into force: 25 July 1951, in accordance with Article 24.

Article 1: The Parties to the present Convention agree to punish any person who, to gratify the passions of another: Procures, entices or leads away, for purposes of prostitution, another person, even with the consent of that person; Exploits the prostitution of another person, even with the consent of that person. Article 2: The Parties to the present Convention further agree to punish any person who: Keeps or manages, or knowingly finances or takes part in the financing of a brothel; Knowingly lets or rents a building or other place or any part thereof for the purpose of the prostitution of others.

9.              The International Covenant on Civil and Political Rights (ICCPR) prohibits a number of practices directly related to trafficking, including slavery, the slave trade, servitude and forced labour.

10.          Convention on the Elimination of All Forms of Discrimination against Women Adopted and opened for signature, ratification and accession by General Assembly resolution 34/180 of 18 December 1979 entry into force 3 September 1981, in accordance with Article 27(1).

Discrimination against women is defined as: “...any distinction, exclusion or restriction made on the basis of sex which has the effect or purpose of impairing or nullifying the recognition, enjoyment or exercise by    women, irrespective of their marital status, on a basis of equality of men and women, of human rights and fundamental freedoms in the political, economic, social, cultural, civil or any other field”.

Article 6: States Parties shall take all appropriate measures, including legislation, to suppress all forms of traffic in women and exploitation of prostitution of women. General recommendation No. 19: Identifies trafficking as a form of violence against women because it puts women at special risk of violence and abuse. Trafficking is incompatible with the equal enjoyment of rights by women and with the respect for their rights and dignity.

11.      Subsidiary sources and soft laws are also the decisions of International Courts and Tribunals.

12.      Mutual Legal Assistance Agreements that are foreign mechanisms of obtaining evidence located in foreign countries.

Art. 18 of the United Nations Convention against Transnational Organized Crime in Palermo, Italy, in December 2000-MLA: States Parties shall afford one another the widest measure of mutual legal assistance in investigations, prosecutions and judicial proceedings in relation to the offences covered by this Convention as provided for in article 3 and shall reciprocally extend to one another similar assistance where the requesting State Party has reasonable grounds to suspect that the offence referred to in article 3, paragraph 1 (a) or (b), is transnational in nature, including that victims, witnesses, proceeds, instrumentalities or evidence of such offences are located in the requested State Party and that the offence involves an organized criminal group.

13.          Extradition treaties between countries to enable sovereign states request and obtain custody of accused persons or perpetrators who are located in another sovereign state.

14.      Enactment of the sustainable development goals (SDGs) which can also eradicate trafficking for labour, sexual exploitations, collaborative efforts between states as well as ensure that the justice sectors are well coordinated to deal with the said vices.

These goals include: Goal 5: Gender equality: Ending all discrimination against women and girls is not only a basic human right, it’s crucial for sustainable future; it’s proven that empowering women and girls helps economic growth and development. Goal 8: Decent work and economic growth: Encouraging entrepreneurship and job creation are key to this, as are effective measures to eradicate forced labour, slavery and human trafficking.

B.         Regional Legal Framework

1.              The Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa (Maputo Protocol 2003)

Harmful Practices “means all behaviour, attitudes and/or practices which negatively affect the fundamental rights of women and girls, such as their right to life, health, dignity, education and physical integrity; Violence against women “means all acts perpetrated against women which cause or could cause them physical, sexual, psychological, and economic harm, including the threat to take such acts; or to undertake the imposition of arbitrary restrictions on or deprivation of fundamental freedoms in private or public life in peace time and during situations of armed conflicts or of war; “Women” means persons of female gender, including girls.

Article 4 (2) (g): Provides as follows: States Parties shall take appropriate and effective measures to: prevent and condemn trafficking in women, prosecute the perpetrators of such trafficking and protect those women most at risk; Article 5 provides: States Parties shall prohibit and condemn all forms of harmful practices which negatively affect the human rights of women and which are contrary to recognized international standards. States Parties shall take all necessary legislative and other measures to eliminate such practices, including: creation of public awareness in all sectors of society regarding harmful practices through information, formal and informal education and outreach programmes; prohibition, through legislative measures backed by sanctions, of all forms of female genital mutilation, scarification, medicalization and para-medicalization of female genital mutilation and all other practices in order to eradicate them.

2.              The East African Community Counter-Trafficking In Persons Bill, 2016

If enacted this will be an Act to provide a legal framework for the prevention of trafficking in persons, prosecution of traffickers, protection of victims of trafficking in persons and other related matters. The objective of this Act is to provide a legal framework at the East African Community level to prevent and counter trafficking in persons, paying particular attention to women and children and vulnerable members of society; protect and assist the victims of trafficking in persons in a manner that respects their human rights; and promote cooperation and harmonized action among the Partner States in order to prosecute perpetrators and comprehensively counter trafficking in persons.

Section 6 provides for the restitution of the victims, Section 7 for forfeiture of the property of perpetrators, Section 8 provides for the immunity of victims from prosecution as well as Part V generally covering the protection of victims of trafficking in persons. The Bill now awaits the assent of the EAC Heads of State in line with Article 63 of the Treaty of the Establishment of the EAC.

3.              The African Charter on Human and Peoples’ Rights (1981)

Article 4: Human beings are inviolable. Every human being shall be entitled to respect for his life and the integrity of his person. No one may be arbitrarily deprived of this right. Article 5: Every individual shall have the right to the respect of the dignity inherent in a human being and to the recognition of his legal status. All forms of exploitation and degradation of man particularly slavery, slave trade, torture, cruel, inhuman or degrading punishment and treatment shall be prohibited. Article 28: Every individual shall have the duty to respect and consider his fellow beings without discrimination, and to maintain relations aimed at promoting, safeguarding and reinforcing mutual respect and tolerance.

4.              The African Charter on the Rights and Welfare of the Child (ACRWC) 2009.

Article 15: Children should be protected from all forms of economic exploitation and from performing any work that is likely to be hazardous or to interfere with their physical, mental, spiritual, moral, or social development. Article 16: Children should be protected from all forms of torture, inhuman or degrading treatment and especially physical or mental injury or abuse, neglect or maltreatment including sexual abuse. Article 21: Governments should do what they can to stop harmful social and cultural practices, such as child marriage, that affect the welfare and dignity of children. Article 27: Children should be protected from all forms of sexual exploitation and sexual abuse. Article 29: Governments should take appropriate measures to prevent the abduction, the sale of, or traffic of children for any purpose.

5.              Ouagadougou Action Plan to Combat Trafficking in Human Beings, especially Women and Children, 2006.

This Declaration and Plan of Action enjoined member states to urgently sign, ratify and implement relevant sub-regional, regional and international human rights instruments; adopt laws criminalizing human trafficking in line with the provisions of the UN Convention against Transnational Organized Crime and its TIP Protocol, as well as the administrative structures needed to support those provisions. Adopted on November 23, 2006 by the AU/EU Ministerial Conference on Migration and Development, held in Tripoli, Libya from 22-23 November 2006. Specifically, the ECOWAS Convention on Mutual Assistance in Criminal Matters; the ECOWAS Convention on Extradition; the African Charter on the Rights and Welfare of the Child; the UN Convention against Transnational Organized Crime and its Protocol to Prevent, Suppress, and Punish Trafficking in Persons, especially Women and Children.

C.         NATIONAL LEGAL FRAMEWORK

Kenya has been identified as a source, transit, and destination country for victims of human trafficking. Internal trafficking occurs within Kenya borders mainly for purposes of domestic labour and sexual exploitation, whereas International or cross-border trafficking occurs due to purposes of forced labour, domestic servitude, and sexual exploitation. While some identified victims are trafficked internally or regionally, others are trafficked to destinations such as Europe.

Kenya has enacted various national instruments to combat human trafficking as well as ratified and applies International Law and Instruments through Articles 2 (5 and 6) of the Constitution of Kenya. Specialized units have been constituted that deal with these vices: The Transnational Organized Crimes Unit (TOCU) that looks into issues of human trafficking and smuggling of adults whilst the Anti-Human Trafficking and Child Protection Unit (AHTCPU) concentrates the efforts on children.

NATIONAL INSTRUMENTS

The Constitution of Kenya

The Constitution which is the supreme law of the land recognizes that general rules of international law shall form part of the law of Kenya applicable at Article 2 (5) and also that any treaty or Convention ratified by Kenya as forming part of the law of Kenya at Article 2 (6). Further the Bill of rights in Chapter Four of the Constitution also provides for the protection of various rights including right not to be held in slavery or servitude at Article 30 and right not to be treated or punished in a cruel, inhuman or degrading manner at Article 29 (f) among other rights.

Draft Counter Trafficking in Persons (National Assistance Trust Fund for Victims of Trafficking in Persons) Regulations, 2019

Drafted in exercise of the powers conferred by Section 28 (d) of the Counter Trafficking in Persons Act to the Cabinet Secretary for Labour and Social Protection in consultation with the Advisory Committee. These regulations are aimed at operationalizing the implementation of the National Assistance Trust Fund for Victims of Trafficking in Persons, and making provisions for the operations of the Board of Trustees that will administer the funds.

Draft Counter Trafficking in Persons (General) Regulations 2019

Drafted in exercise of the powers conferred by Section 28 of the Counter Trafficking in Persons Act to the Cabinet Secretary for Labour and Social Protection in consultation with the Advisory Committee. The regulations are aimed at making provisions for reporting, victim assistance and protection, and inter-agency cooperation thus supplementing the Counter-Trafficking in Persons Act.

The Counter-Trafficking in Persons Act, Act No. 8 of 2010

This is the specific anti-trafficking statute which creates offences and provides penalties to be meted out on offenders. The Act states that “exploitation” includes but is not limited to keeping a person in a state of slavery, subjecting a person to practices similar to slavery, involuntary servitude, forcible or fraudulent use of any human being for removal of organs or body parts, forcible or fraudulent use of any human being to take part in armed conflict, forced labour, child labour, sexual exploitation, child marriage, forced marriage.

Section 3 (3) provides for the definition of trafficking to mean, ‘ the recruitment, transportation, transfer, harbouring or receipts a child for the purpose of exploitation shall be considered ‘trafficking in persons’. Section 3 (4) defines the territorial scope of the criminal act ‘an act of trafficking in persons may be committed internally within the borders of Kenya or internationally across the borders of Kenya. The offence which carries a penalty in Section 3 (5): Imprisonment for a term of not less than 30 years or to a fine of not less than Kshs 30,000,000 or both and upon subsequent conviction to life imprisonment. Section 4 of the Act criminalizes the act of adopting, fostering or offering a child for guardianship for purposes of trafficking’. Section 4 (3) Imprisonment for a term of not less than 30 years or to a fine of not less than Kshs 20,000,000 or both and upon subsequent conviction to life imprisonment. Section 5 criminalizes the act of leasing, occupying, permitting the occupation of any premises, publishing, exportation and importation of material for purposes of promoting trafficking in persons. Imprisonment for a term of not less than 20 years or to a fine of not less than Kshs 20,000,000 or both and upon subsequent conviction to life imprisonment. Section 6 criminalizes fraudulent acquisition of travel documents for purpose of trafficking of persons or assisting in the same. Imprisonment for a term of not less than 10 years or to a fine of not less than Kshs 10,000,000 or both and upon subsequent conviction to 10 years without an option for a fine. Section 7 criminalizes the act of aiding or abetting exit or entry of persons into the country for purposes of promoting trafficking in persons. Imprisonment for a term of not less than 30 years or to a fine of not less than Kshs 30,000,000 or both and upon subsequent conviction to term not less than 30 years without the option of a fine. Section 8 criminalizes the interference with travel documents and personal effects of another person in furtherance of trafficking in persons or in order to prevent the person from leaving the country. Imprisonment for a term of not less than 10 years or to a fine of not less than Kshs 10,000,000 or both and upon subsequent conviction to a term of 10 years without the option of a fine. Section 9 causing victim of trafficking permanent or life threatening bodily harm, death or terminal ailment. The penalty is life imprisonment. Section 10 recognizes trafficking in persons as part of the activities of an organized gang as a circumstance aggravating the offence. The penalty is life imprisonment. Section 13 Restitution: By ordering the offender to pay the cost of medical or psychological treatment, transportation, accommodation and other living expenses. Section 14 Immunity from prosecution: Protects the victim of trafficking from prosecution for offence of being in Kenya illegally. Section 15 Support and protection of victims: Minister for Gender and Children Services to formulate plans for the following services for victims of trafficking: return to and from Kenya, resettlement, re-integration, shelter, psycho-social support, medical assistance, legal assistance and information. Section 16 Exemption from payment of filing fees in civil suits. Section 20 Functions: As provided for and can be classified as advice and implementation of: formulation of policies; coordination of activities and monitoring and evaluating the progress of Kenya’s efforts on prevention, protection and prosecution of human trafficking in Kenya. Section 22 National Assistant Trust Fund for Victims of Trafficking in Persons: Established under to support the services for victims as provided for in Section 15. The fund shall be administered by the Board of Trustees, and shall be used for the assistance of victims of trafficking in persons. Section 23 (1) Sources of the Funds: such monies as may be appropriated by Parliament for the purposes of the Fund; any proceeds of crime confiscated or forfeited under section 17; income generated by investments made by the Board of Trustees; any donation received by the Board of Trustees for purposes of the Fund. Section 23 (2) Powers of Board of Trustees to utilize funds: Board of Trustees may make payments out of the Fund for the expenses arising out of assistance to the victims of trafficking in persons in the manner referred to in section 15; the balance of damages under section 17(2); and such other purposes as the Advisory Committee may recommend.

Data Protection Act 2019

Provides for the protection of data of victims as well as ensuring that the data controller does not supply material information on the victims.

Female Genital Mutilation Act

Section 20: Aiding and abetting female genital mutilation. Section 21: Procuring a person to perform female genital mutilation in another country-A person commits an offence if the person takes another person from Kenya to another country, or arranges for another person to be brought into Kenya from another country, with the intention of having that other person subjected to female genital mutilation. Section 29 provides the penalty as: A person who commits an offence under this Act is liable, on conviction, to imprisonment for a term of not less than three years, or to a fine of not less than two hundred thousand shillings, or both.

The Sexual Offences Act. Act No. 3 of 2006

Criminalizes trafficking for sexual exploitation and makes it an offence to traffic into, within and out of Kenya. The maximum sentence is 10 years’ imprisonment (repealed by the Counter Trafficking in Persons Act). Section 12: Promotion of sexual offences with a child: When one is found guilty of the above: guilty of an offence and is liable upon conviction to imprisonment for a term of not less than five years and where the accused person is a juristic person to a fine of not less than five hundred thousand shillings. Section 14: Child Sex Tourism: when one is convicted of an offense is guilty of promoting child tourism and is liable upon conviction to imprisonment for a term not less than ten years and where accused person is a juristic person to a fine of not less than two million shillings”. Section 15: Child Prostitution: an offense of benefiting from child prostitution and liable upon conviction for a term of not less than 10years”. Section 16: Child pornography: One is guilty of an offence of child pornography and upon conviction is liable to imprisonment for a term of not less than six years or to a fine of not less than five hundred thousand shillings or to both and upon subsequent conviction, for imprisonment to a term of not less than seven years without the option of a fine. Section 18: Trafficking for Sexual Exploitation: A person guilty of an offence under this section is liable upon conviction, to imprisonment for a term of not less than fifteen years or to a fine of not less than two million shillings or to both.

The Penal Code, Cap 63, Laws of Kenya

The Act makes provision against persons who forcibly or fraudulently takes or entices away or detains a child; or receives or harbors the child, knowing it to have been taken or enticed away or detained is guilty of a felony and is liable for imprisonment for seven years. N/B Amended by 2nd Schedule to the Counter Trafficking in Persons Act. Further the Act also provides for the prosecution and punishment of residual trafficking in person offences such as: Section 151: Detention of female for immoral purposes. Penalty is that one is guilty of a felony. Section 153: Male person living on earnings of prostitution or soliciting. Penalty is that one is guilty of a felony. Section 154: Women living on earnings of prostitution or aiding, etc. prostitution. Penalty is that one is guilty of a felony. Section 155: Premises used for prostitution. Section 156: Brothels and those who runs brothels are guilty of a felony. Section 254/255: Kidnapping. Section 257 notes the penalty as: Any person who kidnaps any person from Kenya or from lawful guardianship is guilty of a felony and is liable to imprisonment for seven years. Section 256: Abduction. Section 259: Kidnapping or abducting with intent to confine: Penalty: Any person who kidnaps or abducts any person with intent to cause that person to be secretly and wrongfully confined is guilty of a felony and is liable to imprisonment for seven years. Section 260: Kidnapping or abducting to subject to slavery. Penalty: Any person who kidnaps or abducts any person in order that the person may be subjected, or may be so disposed of as to be put in danger of being subjected to grievous harm, or knowing it to be likely that such person will be so subjected or disposed of, is guilty of a felony and is liable to imprisonment for ten years. Section 261: Wrongful confinement/concealment: Any person who, knowing that any person has been kidnapped or has been abducted, wrongfully conceals or confines such person is guilty of a felony and shall be punished in the same manner as if he had kidnapped or abducted such person with the same intention or knowledge, or for the same purpose, as that with or for which he conceals or detains such person in confinement. Section 262: Kidnapping or abducting a child under 14 years with intent to steal: Any person who kidnaps or abducts any child under the age of fourteen years with the intention of taking dishonestly any movable property from the person of such child is guilty of a felony and is liable to imprisonment for seven years. Section 266: unlawful compulsory labour: Any person who unlawfully compels any person to labour against the will of that person is guilty of a misdemeanour. Section 266 (A): Where it appears that any of the offences specified under this Part is committed for the purpose of exploitation, the person committing the offence shall be charged with the appropriate offence as specified in the Counter Trafficking in Persons Act.

The Witness Protection Act, 2006

This Act provides for provide for the protection of witnesses in criminal cases and other proceedings to establishes a Witness Protection Agency and provide for its powers, functions, management and administration. The Act at Section 2 notes a witness as: “witness” means a person who has made a statement or has given or agreed to give evidence in relation to an offence or criminal proceedings in Kenya or outside Kenya, and requires protection on the basis of an existing threat or risk. Section 3I provides for the Victims Compensation Fund. (4) There shall be paid out of the Fund: restitution to a victim, or to the family of a victim of a crime committed by any person during a period when such person is provided protection under this Act; compensation for the death of a victim of a crime committed by any person during a period when such person is provided protection under this Act, to the family of such victim; and any moneys required to meet expenses relating to any other matter incidental to or connected with the matters stated in paragraphs (a) and (b). PART IIIA provides for reciprocal protection arrangements with foreign countries.

The Victim Protection Act, 2014

The Act provides for protection of victims of crime and abuse of power, and it provides them with better information and support services including medical assistance, temporary shelter, medical care, counselling or psychosocial support, reparation and compensation to victims; it also provides special protection for vulnerable victims, and for connected purposes. Section 8 provides for the rights of the victims to have privacy and confidentiality. Section 8 (2): Where a victim requests for confidentiality, the head of law enforcement agency investigating the offence shall ensure that the residential address, telephone number, cell phone number, email, fax and place of employment of the victim and members of the victims family are not disclosed by the agency except in the circumstances listed therein. Section 9: Rights during the trial process for the victim. The right to be informed in advance of the evidence the prosecution and defence intends to rely on, and to have reasonable access to that evidence; [Paragraph 9(1)(e) declared Unconstitutional by Criminal Revision No. 4 of 2019 ]. Section 10 notes the rights to protection of the victim, Section 11 the Security of the victim to a place that they are out of harm as well as ensure that they have food and shelter as well as also have police protection. Section 12: Victim impact statements: This is also provided for in Section 12 of the Counter Trafficking in Persons Act, No. 8 of 2010. A victim of a criminal offence may make a victim impact statement to the court sentencing the person convicted of the offence, in accordance with Section 329C of the Criminal Procedure Code, Cap 75, Laws of Kenya and that statement may be considered by the court in determining the sentence of the offender. Section 27 provides for the establishment of a Fund to be known as the Victim Protection Trust Fund. Section 28 notes some of the sources of the Fund as: monies appropriated by the National Assembly; monies received by the Fund as grants, donations or gifts from non-governmental or non-public sources; the victim surcharge levy; income generated by investments made by the Board of Trustees and interest accruing from the fund.

Recommendations

1)   The harmonization of all laws or legal provisions that discuss and touch on the aspects of human trafficking.

2)   The actualization of the National Victims Funds as envisioned under the Victims Protection Act as well as under the Counter Trafficking in Persons Act to enable restitution of the victims of human trafficking.

3)   In most cases, TIP is grossly under or non-reported due to the risk threat and trauma faced by victims/survivors/witnesses, the fear of stigmatization and reprisals and lack of awareness of victims/survivors/witnesses that the acts are crimes of a grave nature.

4)   Sensitization of all the stakeholders from the police, prosecution, courts and members of the public who are all players in the criminal justice system to firstly know all the laws and legal frameworks touching on the aspects of human trafficking as well what constitutes human trafficking and where to report the same.

5)   Development of a case digest and or bench book to guide all criminal justice actors on human trafficking matters.

Thank you for your attention.

References:

·      Palermo Protocols 2000: the Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children, Article 3(a).
·      National Crime Research Centre, Human Trafficking in Kenya, (4th Draft Report, June, 2015) pg 21.

 

 

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