Scripta Varia

Trafficking of Persons with Special Needs for Begging in Kenya

Judith Wanjala

Introduction

Human trafficking is an egregious violation of human rights and dignity of a person. The UN Convention on trafficking of persons defines human trafficking as:

“Exploitation of a vulnerable person through recruitment, transportation, transfer, harboring or receipt of persons by means of threat or use of force or other forms of coercion, abduction, fraud, deception and abuse of power”.[1]

According to UNODC report 2018, trafficking in persons has been on the increase globally in recent times.[2] Human trafficking takes various forms, including sex trafficking, forced labor, begging and extraction of body parts.[3] According to various global reports, people with special needs are more likely to be targeted by traffickers than people without special needs.[4] The 2012 ILO Global Report on Trafficking in Persons estimates that 2.5 million people are trafficked annually. They estimated 313,500 people as having been trafficked for purposes of begging.[5]

It is estimated that more than 137 countries are involved in human trafficking. Kenya is one of the countries involved in human trafficking. Positioned in a strategic location at the Horn of Africa, Kenya presents a hub for trafficking of persons through, from and into the country.

According to the US Department of State’s 2018 Report on trafficking, Kenya was ranked in tier 2, meaning that it has not done much to combat human trafficking. The laws are there to deal with this vice but they are not used effectively to eliminate human trafficking. Being regarded as the economic hub of East Africa, Kenya has been identified as a country of origin, transit and destination for trafficking in persons (KNCHR 2018).[6]

Following the passing of the Constitution in 2010 and guided the Palermo Protocol’ Kenya enacted the Counter-Trafficking In Persons Act in 2010.[7] The Act came into force in 2012, and it established the Counter Trafficking in Person Advisory Committee, to advise the Minister of Labor and Social services on how to combat human trafficking in Kenya.[8] The Kenyan government has therefore taken substantive legislative steps to curb human trafficking, but laws do not always work with the required accuracy.

Human Trafficking and Persons Living with Disabilities in Kenya

Background

This paper is focused on trafficking of persons living with disabilities for purposes of begging. Persons living with disabilities are more susceptible to be used as beggars by traffickers due to their conditions. Persons with disabilities are disadvantaged in carrying out many economic activities.

Begging is a form of forced labour linked to trafficking in persons in Kenya. Begging is very visible in urban centres because it is undertaken in public places such as on the streets, pavements, near shops, supermarkets and offices.[9] The traffickers, who use the people to beg, on the other hand, are not visible which makes it difficult to identify them.

According to the East Africa Monitor’s report, there is a large criminal network of human traffickers that is taking advantage of the government’s move to relax immigration laws for East African citizens to bring in people from other countries to use them as beggars.[10] The report states that this has resulted in the influx of beggars from neighboring countries turning Kenya into one of Africa’s top destination for beggars. Many people being used as beggars are said to come from neighbouring countries such as Tanzania, Uganda, Burundi, South Sudan, Eritrea, Ethiopia, Somalia and the Democratic Republic of Congo (DRC). Many are also sourced from Kenya itself. Kenya is said to be a source, and destination for trafficking of physically and visually challenged persons for purposes of begging. Some traffickers are said to use trafficked people to solicit for donor funding and then abandon them after pocketing the cash for themselves.[11] It is reported that the abandoned victims are then picked up by other traffickers to use them for begging. The cartels monitor the movements of the beggars and takes most of the money collected during begging. On 10th December 2013 the Standard Newspaper reported that police officers had cracked down on a cartel of human traffickers who had ferried disabled persons from Tanzania to use them as beggars in Nairobi. The police officers arrested 32 disabled persons from Tanzania in Huruma estate in Nairobi who had been sneaked in to Nairobi so as to be used as professional beggars.[12] They included women, men and children.

Beggars are sometimes rounded up by County officials in crackdowns and taken to court to seek orders for repatriation but they soon come back to the streets because the cartels bring them back. The authorities are largely powerless to prevent them from operating unless the ringleaders of cartels are arrested and prosecuted. It is said that the traffickers who are involved belong to international criminal cartels that are not easy to deal with.[13] According to news reports, authorities say that a number of grey areas in current legislation make it too easy for international organized criminal human traffickers to exploit the law. The network operates in Nairobi, Mt Kenya region, Central Rift, North Rift, Western, and Coast counties. Officials say that it is becoming increasingly difficult to handle the expanding ring of human traffickers as the number of beggars coming into the country continues to rise.[14]

People with disabilities from Tanzania are reportedly transported through major bus routes such as Namanga, Sirare and Oloitoktok border points into Kenya to beg. At the borders, bribes are paid to corrupt immigration officers to allow them to pass without passports or permit or they are simply smuggled across the border. Once in Kenya they are taken to various rented or empty homes in Nairobi or other towns and are later transported to strategic locations every morning by handlers to beg. They can get as much as 3000 shillings ($35) daily from begging. They are brought to the street as early as 5.00 AM and are left there till late in the evening when they are picked and returned to the houses. When you see a person begging there is always another person, mainly young adults, hovering around them. They are the watchers to ensure that the beggars do not reveal their identity to curious passersby and they also keep the money. Some of the beggars cannot move due to the severity of their disability prompting their host to go carrying them around. Their main job is to earn as much money as possible for their master traffickers.[15]

There is an increased trafficking of persons with disabilities from Uganda, Ethiopia Eritrea and Somalia to Kenya because of their porous borders with Kenya.[16] Some of them are carried using lorries that ferry goods. It is believed that unscrupulous people lure disabled persons to Kenya with promises of getting them jobs or better assistance with their disabilities in Kenya, only to for them to be taken to the streets to beg for money once they reach Kenya.[17]

Most people become victims of human trafficking due to poverty, lack of training or education, unemployment and rejection or pure greed for easy money.[18] A news report by The Standard Media Group in Kenya showed that there was an influx of disabled beggars on the streets in towns such as Nakuru, Eldroret, Murang’a, Kitale, Mombasa and market centres in Kenya. Those interviewed said that they had been brought to Kenya with promises of making money and better lives in Kenya.[19] The Standard News paper on September 23, 2010 on page 22, reported that a suspect was held who was found trafficking ten children.[20] The Daily Nation Newspaper on September 22, 2010 on page 10, reported that a couple admitted using five disabled Tanzanian children to beg for alms.[21] On 29 July 2013, the East African newspaper printed an article with a headline that read: “Kenya-Tanzania: Trafficking of handicapped children and the economy of misery”.[22]

This news report brought to light the plight of children with special needs who are usually trafficked to Kenya for exploitation. The children were strategically placed in several locations in Nairobi where they were treated as “money-making machines” for cartels in Nairobi’s lucrative begging industry. When driving or walking you also notice women carrying babies in traffic jams begging using the children to draw sympathy from motorists. Most of the children may be borrowed children who are returned to the owners at the end of the day.

Beggars who are rounded up are often treated as criminals. The current legal system is incapable of dealing with the cartels that bring people on the streets to beg. There is no accurate data to show how many human traffickers have been convicted and sentenced for trafficking people with disabilities into Kenya. The victims are the ones arrested instead of the cartels, which does not help in combatting human trafficking and organized crime in Kenya. Beggars are rounded up for deportation while those that brought them in remain free and continue to bring in more disabled persons. They take advantage of the laxity of the authorities to engage in human trafficking in Kenya.

In Kenya, persons with disabilities seem to be the most vulnerable people used for begging. This can be attributed to many factors that include:

●      Overreliance on caregivers who may exploit their vulnerability and are willing to traffic them.

●      People with disabilities may be very submissive to their caregivers and comply with their demands due to their dependency upon them. This overreliance creates an unequal power dynamic, which predisposes people with disabilities to victimization.

●      Due to societal stigmatization, people living with disabilities may lead isolated lives and may crave for friendship and human connection which in return may expose them to exploitation with hopes of being accepted or benefitting from unhealthy interactions. Further, isolation can also make it difficult or impossible for people with disabilities to make contact with people who could help them.

●      Some people with disabilities cannot speak clearly and may require communication devices or interpreters to make their needs known, so they, also, cannot ask for help and are easily trafficked.

●      Some lack information and understanding of what constitutes a crime and what their rights are as most people with special needs are illiterate. Because of the low levels of literacy, and discrimination or abandonment they easily accept to be trafficked in the hope of getting better life as beggars in Kenya.

●      Kenya is sometimes regarded as a better place to stay economically, as its economic development is regarded to be better.

The Legal Framework

International level

The United Nations Office on Drugs and Crime (UNODC) put in place international laws to define, prevent, and prosecute human trafficking internationally and at national levels. These laws include the United Nations Convention against Transnational Organized Crime and its two related protocols. There is the United Nations Protocol to Prevent, Suppress, and Punish Trafficking in Persons, Especially Women and Children. The other one is the United Nations Protocol against the Smuggling of Migrants by Land, Sea, and Air, which entered into force in 2003-2004. These Conventions have supported international commit to combat human trafficking. In support of enforcing these instruments, the UNODC established the United Nations Global Initiative to Fight Human Trafficking (UN.GIFT) in 2007.

The Palermo Protocol aims to Prevent, Suppress, and Punish Trafficking in Persons, Especially Women and Children it was adopted in 2000 and entered into force in 2003. The Protocol does not include forced begging in its enumeration of the types of exploitation under its definition of trafficking in human beings. However Countries seem to be expanding the definition to include forced begging as is shown the EU Human Trafficking Directive 2011/36/EU, which extends the enumerated forms of exploitation to include begging.[23] Kenya ratified the protocol in 2007 and in 2010 it passed the Counter Trafficking in Humans Act, which became operational in 2012.

The Universal Declaration of Human Rights of 1948, declares in Article 4, “No one shall be held in slavery or servitude; slavery and the slave trade shall be prohibited in all their forms”.

The Covenant on Civil and Political Rights of 1966, in Article 8 states that, “No one shall be held in slavery; slavery and the slave trade in all their forms shall be prohibited. 2. No one shall be held in servitude. 3. No one shall be required to perform forced or compulsory labour.

The Convention on the Rights of the Child of 1989, states that State parties must: “take all appropriate national, bilateral and multilateral measures to prevent the abduction of, the sale of or traffic in children for any purpose or in any form”. The CRC was ratified in Kenya in the year 1990 and the Children’s Act was enacted in 2001. Article 35 of the CRC addresses the issue of trafficking in children.

The UN Convention On the Rights of People With Disabilities sets out the rights of People with disabilities to be respected and be protected against all forms discrimination and exploitation.

The United Nations Convention against Transnational Organized Crime and the Protocols thereto is the main international instrument in the fight against transnational organized crime including benefiting from human trafficking.

Kenyan Laws

·      The Constitution of Kenya, 2010

The Passing of the Constitution was a boost in the protection of human rights. The Constitution states that all persons should be treated with dignity and respect.[24] It prohibits all forms of exploitation and discrimination against persons with disabilities,[25] and obliges the state organs and all persons to treat People with disabilities with dignity and respect. By virtue of Article 2 (5) and 2(6) of the Constitution, the general rules of the International Law form part of the laws of Kenya and all treaties or conventions ratified by Kenya also form part of the laws of Kenya, making Kenya a monist state. Article 54 focuses on the rights of persons with disability and disability is defined in Article 260 to include physical, sensory, mental, psychological or other impairment that affects a person’s ability to carry out ordinary day-to-day activities.

·      The Counter Trafficking In Persons Act, 2010

Kenya acceded to the United Nations Convention against Transnational Organized Crime on 16 June 2004. On 5 January 2005, Kenya acceded to the Protocol against the Smuggling of Migrants by Land, Sea and Air as well as to the Protocol to Prevent, Suppress and Punish Trafficking in Persons. At that time of accession, Kenya did not have its own domestic legislation on trafficking in humans. In 2010 the Counter-Trafficking in Persons Act was enacted which for the first time legally defined trafficking in persons as a crime, and which became operational in 2012. Prior to that Act trafficking in human cases were being handled under the Penal Code. The Counter Trafficking in Persons Advisory Committee was launched by the cabinet secretary (minister) of labour, social security and services (MLSS) (section 19). The role of the Advisory Committee is to coordinate the implementation of policies related to prevention and protection services.

·      The Children’s Act

In 2001, Kenya enacted the Children’s Act that was modeled on the CRC to protect Children. It prohibits trafficking and exploitation of all children.

·      The Sexual Offences Act

In 2006 Sexual Offences Act was passed. Section 13 outlaws child trafficking. Sections 14, 15,16, 17 and 18 deal with issue related to trafficking for sex or prostitution.

·      The Victim Protection Act

The Victim Protection Act was enacted in 2014 to make it easier to secure convictions for victims of human trafficking. This law gave victims’ lawyers the right to address the court and to cross-examine the accused persons and they can also introduce new evidence.

·      The Witness Protection Act

This Law was meant to protect witnesses and enable them testify free from possible attack or influence from persons charged with a crime.

·      The Persons with Disability Act

This was enacted in 2003 amended in 2012. This act makes provision on the rights of People living with disabilities to be respected and to be free from exploitation, neglect and misuse. The Act as framed however does not protect the people living with debilities from becoming victims of human trafficking.

●      Proceeds of Crime And Anti-Money Laundering Act

●      The Kenya Citizenship And Immigration Act, 2011

Institutions to deal with trafficking in human beings

There are several institutions that are used to enforce the laws and assist victims of human trafficking including:

1.     The Judiciary

2.     The Kenya Police

3.     The Office of the Public Prosecutions

4.     The National and County Governments

5.     Kenya National Commission Of Human Rights

6.     The National Council For People With Disabilities

7.     Non Governmental Organizations (NGOs)

8.     The public

9.     Monitoring Agencies

Conclusion

  • Despite the numerous legal framework and institutions, there is no effective control trafficking in Persons with Disabilities. Trafficking in Persons in Kenya is prevalent and urgent measures should be put in place to stem the vice. A multisector approach is required including addressing the root causes of trafficking. As noted before, the US Department of State in 2018 listed Kenya in tier 2 up from tier 3 Watch List. This shows that Kenya is still not taking adequate measures to address human trafficking. Further, the ranking can be attributed to the fact that since the Counter Trafficking in Persons Act became law, there have been very few successful prosecutions and most of those convictions are overturned on appeal. This implies that proving trafficking to secure a conviction is not easy and thus additional steps need to be taken to lessen the burden. Lastly, data is also not properly collected to enable accurate assessment of successful prosecution. Without data I could not determine the extent of trafficking persons for purposes of begging in Kenya.
  • The government needs to create more public awareness about trafficking problem in Kenya
  • There is a need for research to be carried to establish the extent of trafficking in persons with disabilities and how to deal with the issue.

Recommendations

Judicial officers, prosecutors and police officers and all other stakeholders need to be sensitized, trained and adequately funded to specifically tackle the needs of trafficked people with special needs. People with disabilities face unique kind of vulnerability differently from other trafficked victims. It seems to me to be very inhuman to traffic a disabled child or adult to use them for monetary gain or sexual exploitation. Recently a judge demanded that the Kenyan government increase the budgetary allocation to tackle human trafficking which currently stands at 328,000. He further pointed out the lack of training of judicial officers and prosecutors as a hindrance for combating human trafficking.[26] It is therefore important to train all judicial officers and Judges on counter trafficking laws and procedures. The investigator and the prosecutor must also be trained.

It is imperative that government officials coordinate with NGOs and civil society organizations in the efforts to deal with human trafficking, which is a form of modern slavery.

Penalties for offences in human trafficking need to be enhanced in order to ensure deterrence.

The public needs to sensitize to identify and report incidences of human trafficking occurring near them.

The advisory committee on human trafficking should be adequately empowered to deal with the cartel that engage in human trafficking

It appears that the existing laws are not therefore significantly impacting the problem of trafficking in persons with special needs. It is paramount that specific laws be enacted for identification, protection, rehabilitation and empowerment of victims with special needs and beggars. As mentioned, the PWD Act is outdated and offers little to no protection of people with special needs, especially as regards trafficking. There is therefore a need for the law to be updated, noting the changes in time and crime, including the identified vulnerabilities and affording adequate protection for PWDs.

Further there is a need to bring awareness about persons with special need to society as a whole. This awareness will go a long way as a preventative measure for exploitation. As mentioned before, persons with special needs are targeted mainly due to systems and structures that render them vulnerable. Therefore if proper systems and structures are in place, persons with special needs will achieve the much-needed equality, as persons with disability, especially those with intellectual disability who may not be able to effective communicate, run a higher risk of not being believed. It is thus important to set up victim-friendly units that cater for the needs of all types of persons with special needs.

It is imperative that the government, judiciary, police, NGOs and civil societies coordinate their efforts to ensure prevention and protection of human trafficking/victims.

End Notes

 

[1] United Nations International Control Programme Charter.
[2] https://reliefweb.int › report › global-report-trafficking-persons-2018
[3] Human trafficking in Kenya, Draft report, 2015.
[4] https://polarisproject.org/blog/2018/08/15.
[5] The 2012 ILO Global Report on Forced Labour.
[6] https://www.knchr.org
[7] http://kenyalaw.org/kl/fileadmin/pdfdownloads/Acts/Counter-TraffickinginPersonsAct_No8of2010.pdf
[8] http://kenyalaw.org/kl/fileadmin/pdfdownloads/Acts/Counter-TraffickinginPersonsAct_No8of2010.pdf section 19, 20
[9] National Agency against Trafficking in Persons, (2013) Trafficking in persons for Begging- Romania Study https://ec.europa.eu/anti-trafficking/publications/trafficking-persons-begging-%E2%80%93-romania-study-0_en
[10] East Africa Monitor.
[11] https://eastafricamonitor.com › human-traffickers-blamed-for-rise-of-begg...
[12] https://www.standardmedia.co.ke › Nairobi, reported on 10 Dec 2013 00:00:00 GMT +0300 by Cyrus Ombati
[13] supra.
[14] https:// https://www.the-star.co.ke/news/2018-07-17-sonko-intensifies-war-to-flush-out-street-beggars/eastafricamonitor.com/human-traffickers-blamed-for-rise-of-beggars-in-kenya/
[15] https://www.theafricareport.com/5476/kenya-tanzania-trafficking-handicapped-children-and-the-economy-of-misery/
[16] http://www.anppcan.org/wp-content/uploads/2014/11/Baseline-Survey-on-Trafficking-in-Busia-Mandera-and-Marsabit.pdf
[17] https://nairobinews.nation.co.ke/news/exposed-city-street-families-minting-millions-begging
[18] https://www.the-star.co.ke/news/2019-08-02-state-concerned-over-human-trafficking-says-ps-marwa/
[19] https://www.standardmedia.co.ke/article/2001261403/sad-tale-of-tanzanian-beggars-in-human-trafficking-scam
[20] thecradle.or.ke › oldsite › news-events › 40-assent-to-and-implementation, https://www.standardmedia.co.ke › Nairobi
[21] thecradle.or.ke › oldsite › news-events › 40-assent-to-and-implementation
[22] https://www.theafricareport.com/5476/kenya-tanzania-trafficking-handicapped-children-and-the-economy-of-misery/
[23] https://www.myria.be/files/External_contribution_-_Experiences_of_exploitation_for_forced_begging_in_Belgium_and_Romania.pdf
[24] Article 28.
[25] Article 27.
[26] The Standard newspaper 12/11/2019 https://www.standardmedia.co.ke/article/2001349062/judges-plead-for-more-funds-to-handle-human-trafficking-cases

 

 

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