17 Emphasis added.
18 Emphasis added.
19 Report on the progress made in the fight against trafficking in human beings (2016) as required under Article 20 of Directive 2011/36/EU on preventing and combating trafficking in human beings and protecting its victims, 19 May 2016, COM(2016) 267 final, accompanied by a Commission Staff Working Document {COM(2016) 267 final}.
20 But see Siliadin v. France, 26 July 2005, Application No. 73316/01.
21 Rantsev v. Cyprus and Russia, 7 January 2010, Application No. 25965/04. See also, Opinion No. 6/2010 of the Group of Experts on Trafficking in Human Beings of the European Commission, On the Decision of the European Court of Human Rights in the Case of Rantsev v. Cyprus and Russia, 22 June 2010; Piotrowicz, R., “States’ Obligations under Human Rights Law towards Victims of Trafficking in Human Beings: Positive Developments in Positive Obligations” (2012) 24 International Journal of Refugee Law 181–201.
22 Para 282.
23 Para 284.
24 Para 286.
25 Ibid.
26 Para 289. In L.E. v. Greece (Application No. 71545/12, 21 January 2016), the Court found that Greece had established an effective regulatory framework for addressing trafficking because it had in place legislation to criminalise trafficking and to protect victims. However, it did not assess how effective in reality that framework was (Para 70).
5
Trafficking in human beings in the African context
Joy Ngozi Ezeilo
Introduction
Trafficking in human beings (THB) is, in short, a modern form of slavery that continues to shame and challenge humanity to take action to end it. THB is growing in scale and repercussions in Africa. Africa is, today, seen as a major source of human trafficking. There are inter-and intra-country forms of trafficking within the continent – especially in the movement from poorer to wealthier countries – and also internal trafficking from rural to urban or major cities. Although very difficult to quantify, the problem is nonetheless hugely underestimated; not just because of its insidious, complex and dynamic nature, but largely due to lack of capacity, uncoordinated mechanisms for data collection and peculiar migration configurations and conundrums – especially in the West African sub-region, where there is free movement of people within the ECOWAS region. As one of the fastest growing criminal activities in the world, THB results in serious breaches of human rights and dignity of trafficked persons. Trafficking occurs within and across national borders, often with victims crossing many borders to reach their final destination.1 Trafficking knows no borders, and affects countries within the African continent as either source/sending, transit, or destination/receiving States, and, in some cases, a country can be all three at once, in varying degrees.
Africa has 54 States – of which all except Morocco are members of the African Union. Some are also members of other regional African organisations such as the Organization of the Middle East and North Africa (MENA) sub-regions, ECOWAS or SADC.2 Many African countries are still at a developmental stage and are amongst the least developed countries of the world. This is important when one thinks about the capacity to secure borders and to tackle poverty and unemployment, causes of THB. Again, some countries are conflict-and debt-ridden, with small economies that may lack the capacity to enact and enforce legislation. There are also significant cultural differences between countries.
Scale of trafficking in Africa
The scale of the human trafficking problem within Africa itself is huge – especially within the West African sub-region, where most countries are source countries to Europe, Asia and the Middle East.3 A survey conducted by UNICEF reinforced the perception about the widespread nature of THB in West and Central Africa: given that more than 70% of those countries identified trafficking as a problem, compared to one-third (33%) of countries in East and Southern Africa.4
In terms of prevalence and patterns of THB, African States (sub-Saharan and North Africa) rank very high on the UNODC Global Trends Report as countries of origin of victims in other parts of the world, especially Western and Central Europe.5 Both male and female genders are affected, and the percentage gender ratio is 55% (women and girls) to 45% (men and boys).6 Shares of detected victims in sub-Saharan Africa, by sub-regional and trans-regional trafficking, 2010–2012, were put at 97% within the sub-region or country, and 3% from outside the sub-region. The UNODC, Global Report on Trafficking in Persons 2014, further revealed that child trafficking is on the increase in Africa and the Middle East; and from 2010–2012, 68% of children were trafficked, as opposed to 32% adult victims.7
No African country made the Tier 1 list, out of a total of 53 countries evaluated in the 2015 US Trafficking in Persons Report.8 Twenty-four were ranked in Tier 2;9 while a majority of 29 countries10 were either on the Tier 2 Watch List or in Tier 3.11
Although African States are predominantly source countries, some are also destination countries – for example: South Africa, Mauritius, Madagascar, the Seychelles, Gabon, Tanzania, Egypt, Morocco, Nigeria, Kenya and – before the ‘Arab Spring’ –Tunisia and Libya. Internal trafficking is rife, and some countries – including Nigeria, Ghana, Morocco, Senegal, Mali and Egypt – remain source, transit and destination countries. The routes plied out of Africa, and also into Africa, include by air (direct flights), by land (through the Sahel and the Sahara Desert)12 and by sea – crossing from Libya and Morocco into Spain, Italy and Greece.
The profits made by traffickers are huge, with the debt bondage for each victim being set at 50,000 Euros, on average.13 This leads to a ‘cycle of criminality’, with victims finally repaying and in some cases becoming traffickers themselves. This is particularly the case in relation to the phenomenon of ‘Madame’, thus reinforcing the fact that small-scale traffickers are women14 who may have been victims themselves before becoming a ‘trafficker-madame’. In one Nigerian case, Attorney General of the Federation v. Franca Edith Asiboja,15 the accused was convicted of procuring girls from Edo state for the purpose of prostitution in Burkina Faso. During allocutus, a plea was made on behalf of the accused as being young and a victim herself; that it was the circumstances the accused found herself in that made her do what she did.16
A significant number of female traffickers have been convicted in Nigeria of trafficking-related offences. Usually the narratives suggest that they may have been victims or accomplices being used by their boyfriends, or by men controlling the larger share of the illicit trade in human beings.
Forms and manifestations of trafficking in persons
Trafficking in the African region occurs at significant levels and takes several forms, including:
Child trafficking for agricultural or domestic work, baby-sitting/nannies, begging and crimes including selling drugs and illegal adoption;
Trafficking in women for forced prostitution, sexual exploitation and domestic labour, amongst other reasons;
Trafficking in men for forced labour;
Trafficking in persons for ritual purposes;
Trafficking in human beings for the removal of organs, body parts or tissue; and
Trafficking in children to involve them in armed conflict as mercenaries/child soldiers, sex slaves and terrorists.17
Internal conflict in some parts of Africa has resulted in many young girls and boys being abducted from areas affected by insurgency and forced to serve as soldiers or as sexual slaves to the rebel commanders and soldiers.18 Trafficking also differs, according to region, in terms of who is trafficked, the sectors in which they work and their areas of origin and destination. Women, especially younger women in West and Central Africa, are primarily trafficked for domestic work and forced prostitution.
Despite a lack of reliable data, it is widely agreed that most internationally trafficked people are women and children of low socio-economic status, and that the primary trafficking flows are from poorer to more affluent countries. Recent migratory flow in West Africa suggests otherwise, as most of the women and girls b
eing trafficked end up within the African continent, even though they were initially prepared for travel to Europe. NAPTIP (National Agency for the Prohibition of Trafficking in Persons in Nigeria), in 2013, and in one fell swoop, rescued over 100 Nigerian girls trafficked to Mali. NAPTIP has been involved in the evacuation of about 300 Nigerian victims of trafficking from the following countries since 2012: Mali, Côte d’Ivoire, Togo, Ghana, Cameroon, Benin, Togo, Niger, Burkina Faso, Sudan, the United Arab Emirates, India, France, Spain and the UK; but most victims were trafficked within Africa.19 In relation to internal trafficking, the numbers can be even harder to obtain, and it is suggested that current numbers are greatly underestimated. In the Seychelles, migrant females, especially from Kenya, have been forced to work in the fishing sector and were economically exploited.20 Madagascar, South Africa and Angola are, similarly, destination countries for trafficked men and women from within the continent.
Why trafficking persists in Africa
There are over 20 million people today who are victims of forced labour – as revealed by an ILO 2012 survey – out of which Africa is the second highest continent, contributing an estimated 18%, or 3.7 million, affected victims.21 Although the statistic is for forced labour, and not solely human trafficking, the correlation and extrapolation from these figures is a clear indication of the growing problem of trafficking (as well as of contemporary forms of slavery) linked to economic and sexual exploitation within and across the continent.22 It is often assumed that people are mainly trafficked for the purpose of commercial sexual exploitation. However, ILO estimates indicate that 32% of all victims were trafficked into labour exploitation; while 43% were trafficked for sexual exploitation; and 25% for a combination of both.23
Migration and trafficking linkage
There are more than 200 million estimated international migrants in the world today.24 In 2015, according to IOM, the number of international migrants worldwide – people residing in a country other than their country of birth – was the highest ever recorded, at 244 million.25 Recent global estimates of irregular migration suggest that there were at least 50 million irregular migrants worldwide in 2010; a large number of whom rely on smuggling services.26 As has been argued:
[T]rafficking in persons must be understood within the context of the larger phenomenon of persons’ movement across international borders. In most cases (including most cases of trafficking) this movement is motivated at least in part by the search for greater economic opportunity.27
In relation to trafficking, most victims were lured into the trafficking situation under the guise of seeking a better life, through employment and education opportunities. Consequently, THB could be viewed as migration gone wrong. As Adepoju observes, researchers have glossed over, or completely ignored, the broader socio-cultural and economic contexts in which migration in general and, more strictly, THB, takes place. Yet it is obvious that these contexts, in the African situation, define who is selectively sponsored for migration, the nature of networks, the role of intermediaries and the gains from migration.28 Child labour and ‘child’ migration for work are engrained aspects of the migratory configuration in many parts of Africa. Furthermore, many grey areas exist between the concept of female migration for work – the aim being to improve the migrant’s conditions, and those of her family – and illegal migration, smuggling and trafficking of women.29
As the Preamble to the UN Migrant Workers Convention30 (MWC) states, “the human problems involved in migration are even more serious in the case of irregular migration”. The MWC’s aims include:
that appropriate action should be encouraged in order to prevent and eliminate clandestine movements and trafficking in migrant workers, while at the same time assuring the protection of their fundamental human rights.
Accordingly, the MWC seeks to prevent and eliminate “clandestine movements and trafficking in migrant workers”, as well as the employment of migrant workers in irregular situations. As rightly observed in an ILO report, trafficking constitutes the antithesis of any notion of decent work. The consequences are that
the trafficking victim will be at the mercy of the traffickers and, far from being able to find work to begin to build a better future, will be forced to labour to pay off debts, as a result of fear of disclosure, violence or reprisals. This labour is likely to be performed without a contract, time off, insurance, access to health or social security services or pay, and often for long hours in the kind of work too often reserved for low-skilled migrant workers: in sweat-shops, agriculture, construction work, domestic service, food processing or labour-intensive manufacturing and, of course, for women and older girls, in commercial sex. Such exploitation is at the heart of trafficking.31
Although forced labour is closely linked to human trafficking, not every case of forced labour is a case of trafficking. A person may be in forced labour as a result of bonded labour or peonage without being trafficked, and while remaining in their place of origin. People are forced into accepting lowly paid ‘3 Ds’ jobs (dirty, difficult and dangerous) because of extreme poverty and human insecurity; and although this may be exploitative, or an abuse of a person’s vulnerability, it may not qualify as forced labour because of the absence of key elements: it is not involuntary and, again, it is not done under threat or penalty.32
Again, restrictive immigration policies of favoured countries of Europe and North America – as well as the labelling of trafficked migrant women as illegal migrants – accentuate the problem, leading to misidentification and the lack of protection and assistance to these women. Unarguably, the concepts of THB and migration share the same ‘migratory space’, as both involve movement. Nevertheless, the two phenomena have very different reasons behind movement and outcomes – with trafficked persons being exposed to a ‘harm’ situation and ending up in slave-like situations. Exploitation, profit and illegality are all central to the idea of THB. That is certainly not the case in the regular migration process.33
In Gabon, young children were trafficked from West Africa for domestic work – as apprentice-mechanics or artisans – including girls from poor families who mostly come from Benin, Guinea, Mali and Togo, although some come from Burkina Faso, Cameroon, Liberia and Sierra Leone. They are trafficked through middle persons, especially women known as ‘aunties’, to work for rich Gabonese families and West/Central African and European families residing in Gabon. Boys and girls below the age of 18 are attracted to the country, which they see as one of the economically strong and socio-politically stable countries in the sub-region, with prospects and opportunities for work.34
The irregular migration status of many migrant domestic workers from Africa, as well as cultural inhibitions towards being too assertive, makes them more vulnerable to abuse, including sexual abuse. Employers frequently confiscate the identity documents of migrant domestic workers.35 Women, the majority of migrant domestic workers, suffer a further vulnerability to abuse and often have no access to justice or other forms of assistance.36 The kafala system, for instance, regulates the entry, recruitment, employment and residency of migrant workers in the United Arab Emirates: they must have a national sponsor and are only allowed to work for the employer who sponsored them. Most African migrant workers confirmed that their documents were being held by their employer/sponsor.37
Some African countries have enacted legislation on forced labour, slavery or servitude. However, many are yet to take action, despite being parties to the Palermo Protocol, as well as to the MWC. Undoubtedly, there is a need for legislation at the national level to tackle the large-scale trafficking of female and child migrant workers into forced prostitution, forced labour and domestic servitude. There is an urgent need to prosecute and punish persons responsible, and to ensure that even where the migrant worker has not been trafficked but held in a situation of forced labour, that (s)he can obtain justice – including compensation for human rights violations and economic loss suffered – and, importantly, that the employer will be held crim
inally liable. There is an urgent need to improve data gathering, and the training and retraining of officials in migration data collection and statistics, in order to capture the main trends of trafficking. In the process, data collection on trafficking and other configurations of migration that may include elements of smuggling should be stan-dardised.38
Factors that promote trafficking in Africa
There are several intertwining factors that cause or fuel trafficking on the continent, including: poverty; unemployment; corruption; conflict; globalisation of the economy; ease of travel within the continent, especially in West and Central Africa; the demand for cheap labour in developed countries; and cultural or religious norms, including fetish practices of oath-swearing at shrines, or those administered by native doctors. The problem of THB also touches on areas such as gender, good governance and education.
The first major cause is rising poverty linked to high unemployment, livelihood challenges and human insecurity –i.e., freedom from fear and want. The feeling of hopelessness pushes victims in source countries to take risks, believing that they are worse-off already with their current predicament in their home countries, and that anywhere, other than their countries of origin, accordingly holds better prospects for livelihood sustainability. Economic pressures and persistent poverty in Africa are leading to a resurgence of THB – especially of women and children for forced prostitution, domestic labour and sexual exploitation.
Secondly, gender inequalities and sex discrimination in education and employment (including stereotypes about women as sex objects and chattels to be bought and sold) exacerbate the trafficking of women and girls. Trafficking, by its nature, characteristics and consequences, is intertwined with violence chiefly directed at the female gender, and shares underlying causes with violence against women.
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