Once again I take this opportunity to thank the Good Lord, IAWJ, the Pontifical Academies of Sciences and Social Sciences, the Kenya Judiciary and IAWJ Kenya Chapter for this opportunity. I wish to adopt what I said here last year that Kenya, as a member of the International Community, has fully embraced the legal frameworks both internationally, regionally and also nationally through municipal legislations with a view to teaming up with the international community to combat this vice.
What is left is for Kenya as a Nation to put in place meaningful infrastructure to combat the vice. At the constitutional level, there is an explicit statement on what Kenya as a Nation believes in as its National values. These are enshrined in Article 10 of the Constitution. It is stated explicitly that these values are binding on all state organs, state officers, public officers and all persons whenever any of them applies or interprets the Constitution, enacts or applies the law, or makes or implements public policy decisions. This is a call to all to join hands to combat the vice.
The national values are stated as patriotism, national unity sharing and devolution of power, the rules of law democratic and participation of people, human dignity, equity, social justice inclusiveness, equality, human rights, non-discrimination and protection of the marginal good governance, integrity, transparency and accountability and sustainable development.
The aim of these values is to turn Kenya into a just Society. If that ideal is achieved there is no way the vice can thrive. It needs the efforts of everyone. If all of the above were to be practiced seriously, there would be no Kenyan man or woman who would fall victim to human trafficking.
It was in light of its national commitment to the above national values that Kenya as a nation enacted the Counter Trafficking in Persons Act no. 8 of 2010 assented to by Parliament on 13 September, 2010 and commenced by gazette notice on 1 October, 2012. Sections 3(1) defines trafficking in persons, Section 3 (5) and (6) relate to penalties and an offence of persons who promote human trafficking.
Section 3(1) provides as follows:
“(1) A person commits the offence of trafficking in persons when the person recruits, transports, transfers, harbours or receives another person for the purpose of exploitation by means of— threat or use of force or other forms of coercion; abduction; fraud; deception; abuse of power or of position of vulnerability; giving payments or benefits to obtain the consent of the victim of trafficking in persons; or giving or receiving payments or benefits to obtain the consent of a person having control over another person.”
Section 3(5) provide as follows:
“(5) A person who traffics another person, for the purpose of exploitation, commits an offence and is liable to imprisonment for a term of not less than thirty years or to a fine of not less than thirty million shillings or to both and upon subsequent conviction, to imprisonment for life.
(6) A person who finances, controls, aids or abets the commission of an offence under subsection (1) shall be liable to imprisonment for a term of not less than thirty years or to a fine of not less than thirty million shillings or to both and upon subsequent conviction, to imprisonment for life.”
Section 5 provides for the offence of promotion of trafficking of persons as follows:
“A person who—
(a) knowingly leases, or being the occupier thereof, permits to be used any house, building, or other premises for the purpose of promoting trafficking in persons;
(b) publishes, exports or imports, any material for purposes of promoting trafficking in persons; or
(c) manages, runs or finances any job recruitment agency for the purposes of promoting trafficking in persons;
(d) by any other means promotes trafficking in persons, commits an offence and is liable to imprisonment for a term of not less than twenty years or to a fine of not less than twenty million shillings or to both and upon subsequent conviction, to imprisonment for life.”
From the above definition on Human trafficking, there is no doubt that the vice is an affront to the sanctity of human life from conception up to natural death, and the inalienable dignity of each and every human being. This should be the starting point for each entity involved in the fight against this vice of human trafficking with the sole aim being to join forces to restore human dignity to the human person.
The Bible teaches us that man – and by man includes woman – is created in the image of God which, in essence, is the foundation of the inherent dignity of every person created by God. In light of the above, and since those trafficked men and women are our sons and daughters, the key question we should ask ourselves is where did we go wrong as individuals, families, national and now the international community.
Here below are my own reflections on how personally I feel we went wrong and which I strongly believe that if they were addressed adequately, in line with the national values enshrined in Article 10 of the Constitution, progress would be made in the fight against this vice. The source is the breakup of the family systems exposing children to vulnerability, forcing them to seek safety and assumed greener pastures elsewhere.
1. Family Unit
A Family unit is defined in Black’s Law Dictionary as a collective body of persons who live in one house and under one head or management. A traditional family, on the other hand, can be defined as a basic social unit consisting of parents and their children, and the extended family considered as a group, whether dwelling together or not. A family unit plays a role in the prevention of exposure of its members to human trafficking. In Kenya, youth/young people between the ages of 12 to 35 years, regardless of gender, are most vulnerable to trafficking.
Root Causes of Human Trafficking in Light of the Family Unit
Breakdown of social values
The institution of marriage was highly valued by all the traditional cultures in Kenya. The reason for this is that marriage is the foundation on which families are built. In traditional Kenyan cultures, people valued the institution of marriage, human life, morality, family, respect for people, and good leadership. These values protected the children from exposure to negative activities.
When there is breakdown of these social values, children are exposed not only to human trafficking human activities but to many other negative impacts. However, a child in a family where social values are protected, is secure from human trafficking.
In Kenya, poverty is a reality that most governments are not adequately able to address as the drawback line between the rich and poor widens and there is less opportunity for poverty eradication. Poverty, especially in the rural areas, causes migration of many young people to urban centres. These urban centres provide opportunity for employment and desperation pushes the youth to accept any openings available, which include a job out of the country. These make them vulnerable and at the mercy of unscrupulous agents, who recruit, harbour and transport them abroad.
Unemployment among the youth
Unemployment in Kenya is high. Many youths come from poor or marginalized families and this increases the prevalence of human trafficking, as many opt to enrol and apply for online jobs which promise hefty salaries and attractive benefits. This increases the possibility of being trafficked.
Children without parental care or a concerned caregiver often suffer from neglect and are vulnerable to exploitation. These children may run away from home due to mistreatment by relatives and find themselves in the streets where exploiters use them for prostitution and sexual exploitation, selling of drugs and begging in exchange for food and a place to sleep.
Children with Physical or Mental Disabilities
Children with Disabilities are often removed from their homes by people purporting to be sponsors, such as the clergy and respected political figures, and transported to other urban centres and put up in safe houses that claim to provide special care and meet their medical, educational and vocational needs. Relatives and guardians of these children are often deceived and even given some amounts of money to facilitate such transfers of children who are then exploited sexually. Most of these children come from very humble and disadvantaged backgrounds and many parents consider the money given as a means of improving their economic status and may be used to feed and educate the other children in the family.
Unequal treatment of children
Inequality between the boy and girl child: some communities in Kenya practice outdated cultural practices such as discrimination of the girl child, Female Genital Mutilation, early marriages. Girls were considered as objects of trade in most African countries and were often sold to the highest bidder. In modern day Kenya, in some communities such as Turkana and Kipsigi’s and some Maasai, these practices force girls to run away from home or seek shelter in neighbouring towns, where agents transport them to other areas to be employed as house helps and domestic workers with very minimal pay and cruel treatment.
Other Causes of Human Trafficking
The government of Kenya has been faulted for licensing labour recruiting agents who are considered to be incompetent, untrained and money driven, who will do anything to recruit as many young women and men for the international black market. The Counter Trafficking Act of 2010 is seen to create loopholes where traffickers take advantage of the leniency of the law and continue to recruit, transport, transfer and receive persons with the aim of exploitation.
Locally the government has admitted to their inability to receive cases of trafficking, investigate, prosecute and deal accordingly with those suspected to be involved in trafficking of persons. Internationally, the complexity of prosecuting trafficking syndicates and bringing justice to victims is based on the consent of victims, lack of collaboration with international organizations handling trafficking issues and destination countries/ governments where victims are exploited and disparities in the laws of countries where the victim came from and the country of destination. The legal framework in place requires a collaborative networking effort by all those fighting human trafficking, both national and international bodies. Some of the most common trafficking destinations are the UAE (United Arab Emirates) countries, most of which are not ratified under the United Nations and do not observe Universal Human Rights.
Some communities don’t value education, especially for girls, and this leads to parents giving away their children for marriage, especially to older men who end up abusing them in all manner of ways. At the same time, women in many communities are still viewed as lesser than men and due to mistreatment of forced marriages some of these young people become victims of human traffickers in their search for refuge.
Children in families where education is valued are protected and well taken care of, compared to children who do not have parents.
The brief presentation demonstrates that a stable family unit plays a major role in curbing exposure to human trafficking. Children who are protected in a family unit are less likely to be exposed to human trafficking, compared to children who are not within a family unit. As the Government of Kenya enhances its capacity to identify and investigate trafficking cases, sustained efforts are also needed to protect the family unit, which secures the children from trafficking in the first place.