Tuesday, February 4, 2014

Putting Child and Human Trafficking in Malawi and Abroad in Perspective

(NOTE: I wrote this article in 2009, before the World Cup was held in South Africa. George Perkings, writing from Norway, wanted the aticle and, so, I have just posted it here).

Panganani Saikonda Chigada, a promising 19-year old youth from Blantyre’s Ndirande Township, still lives in the hearts and minds of his family members- some 11 months after his mysterious death.

Panganani is a living example of human trafficking, family members say.

The late Panganani’s brother, 22 year-old Blessings, said his younger brother traveled to South Africa earlier this year, and arrived in the Rainbow nation on January 19, 2009. People like Blessings and relatives only got the news from Panganani when he thought he was finally home and dry in South Africa.

“He (Panganani) was an energetic person who used to wear earrings and imitate the dressing of US (United States of America) hip-hop music artists, something I think made him attractive to traffickers,” said Blessings.

He believes that his brother’s looks are what attracted Chancy Kauta,a Malawian woman who lives in South Africa, as well as her friend believed to have come from New Zealand, to befriend him. They then started taking him along on their trips to various tourist attraction places in Malawi.

“The same women took Panganani to South Africa, where he is said to have been sold to men who sodomised him to death,” he said, flanked by his sister Edna.

Edna things that poverty could have played a role in their brother’s ordeal and subsequent death. The Chigada family lost the father a few years ago and depends on the mother- a widow who fends for the family by selling tea products.

It all started when Chancy, whose parents live in Ndirande, came home from South Africa to attend a tomb construction ceremony for a family member and brought the white lady friend along. The family fails to understand how Panganani came to befriend the two ladies, to the extent of always being in their company.

“It reached a point where our brother could pass nights at their place,” said Edna.

In the end, the three arranged to process a passport for Panganani, without his relatives’ knowledge, and took him along to South Africa.

He called a friend, Ted, on January 19 informing him that he had arrived safely in Cape Town.

Barely a month later, Panganani was dead. A family examination of his body revealed that he had damaged anal tissue and other signs of physical torture. What surprised the family, though, were the details in his passport: they showed that he hailed from the area of Traditional Authority Chigaru in Blantyre whereas the family hails from T/A Kapeni in the same district.

The passport also contained some ‘strange name’. It indicated that the deceased name was Panganani Promise Chigada and the family says he never had such a name.

Edna and Blessings say circumstances surrounding their brother’s death point to human trafficking, and have called on officials to extradite investigations on the issue.

“The year is coming to a close yet there seems to be no progress at all. We are getting tired of waiting for justice and our fear is that these people will do the same to others,” said Blessings.

Blessings said family members can not digest the fact that Panganani is really gone, hoping that the truth behind his death could set them free. The danger is that on the long journey between waiting and justice, many more lives could be lost.

2010 World Cup: Did it increase cases of human trafficking?
The 2010 World Cup, which was held in South Africa for the first time on
the continent of Africa, was a dlong-time dream come to fruition. It was a living
manifestation of Africa’s patience, hope and forbearance that never
came without sweat and threats, some of which vain.

It all started when African soccer officials, through Africa’s soccer governing body- the Confederation of African Football (CAF)- lobbied for more African slots at the world stage, a development that saw the number of teams represented at World Cup finals balloon to five, up from three.

CAF then told the Federation for International Football Associations (FIFA) point-blank that increasing the number of African representatives was not enough; the continent wanted nothing less than the chance to lay host to the world’s biggest soccer fiesta. Efforts to host it in 2006 failed, as Germany’s bid proved too superior to that of African representatives and CAF was riled.

The confederation threatened to boycott proceeding World Cups, prompting FIFA President Joseph Sepp Blatter to grant Africa an automatic hosting right next year (2010). It thus became an all-Africa affair, with Egypt, Morocco, Tunisia and others trying their luck. In the end, the Rainbow nation of South Africa emerged victor and successfully hosted the event.

Almost all people on the continent and the rest of the world agreed that this was Africa’s biggest moment. However, legal experts and human rights activists, especially those working in the area of human trafficking, refused to throw all caution to the wind and ride over the buzz of general excitement.

The experts feared that the 2010 World Cup could turn out to be a cbottomless pit for human trafficking incidents, and asked governments, civil society organizations, the media and members of the public to work together in making the world Cup finals a water-tight affair for traffickers.

Fears were that children and women, the common targets for traffickers, could fall victim to organized trafficking syndicates and leave more tears than joy on Africa’s shiny face.

Child Justice Magistrate Esmie Tembenu, who presides over child cases
at Soche Child Justice Court in Blantyre, was amongst the first people to raise the alarm.

“We must be extremely careful as a nation. There is need, also, to increase the level of public awareness on issues of human trafficking.I fear for our children and women, especially, comprise a large part of trafficking victims,” said Tembenu.

Tembenu warned people, especially rural dwellers. Against entertaining unknown people who will more likely be plying the dusty village roads and paths in search of people. Often, these foreigners will be using coercion and blackmail to get their way.

“I can foresee people going to the villages and promising would-be victims employment and better life. Some will even try to adopt Malawian children without going through the normal channels, and then taking these unsuspecting people to South Africa to be used as child prostitutes and labourers. Unfortunate ones are killed for their body
organs,” she said.

No wonder that Malawi did not take these challenges lying down. Government and human rights activists, through the Malawi Network against Child Trafficking (MNACT), launched a national campaign against human trafficking. MNACT , whose secretariat was hosted by the child rights NGO, Eye of the Child, was established by the Malawi government through the Ministry of Gender, Child and Community Development . It
enjoyed a membership of 69 organisations, both governmental and non-state actors.

MNACT’s anti-human trafficking campaign was premised on the fact that a recent rapid assessment survey on the social impact of the 2010 FIFA World Cup conducted by the Southern African Network against Trafficking and Abuse of Children (SANTAC) revealed that trafficking cases were bent to increase.

The assessment revealed that, before and during the event, demand for sexual services, including sexual services from women and children, increased; there was more demand for cheap and exploitable labour as well as increased opportunities for criminal elements to ply their trade, which included trafficking and exploitation of women and children.

Malawi committed to fighting human trafficking
Malawi has maintained its Tier 2 ranking in the June, 2009 edition of Trafficking in Persons Report (TIP) published by the United States of America’s Department of State.
Tier 2 countries are those whose governments do not fully comply with the Trafficking Victims Protection Act’s minimum standards, but are making significant efforts to meet such standards.

There are 72 countries under this category, with Mozambique, Tanzania, Namibia,
Madagascar, Rwanda, Uganda, Burkina Faso, Israel, Jamaica, Japan among some of the familiar faces.

There are three classifications of Tiers. Tier 1 is for countries whose governments fully comply with the Trafficking Victims Protection Act minimum standards (Mauritius, United Kingdom, Netherlands, Belgium, Germany, Nigeria, Denmark, Norway, Canada, Australia, France, among other countries) while Tier 2 applies to those that do not fully comply but are making significant efforts to comply.

This category also contains a Watch List component, which applies to countries that have significant numbers of trafficked victims, or whose numbers are increasing; countries that have provided no evidence of increasing efforts to combat severe forms of trafficking in persons from the previous year; and countries whose determination that they are making significant efforts to bring themselves into compliance with minimum standards was based on commitments by the country to take additional future steps over the next year.

The last category, Tier 3, is for countries whose governments do not fully comply with the minimum standards and are not making significant efforts to do so. Currently,
these countries include Burma, Chad, Cuba, Eritrea, Fiji, Iran, Kuwait, Malaysia, Mauritania, Niger, Swaziland, Zimbabwe, Saudi Arabia, North Korea, Syria, and Papua New Guinea.

The US Department of State is required by law to submit each year to the country’s congress a report on foreign governments’ efforts top eliminate severe forms of trafficking in persons, and the June report becomes the ninth annual Trafficking in Persons Report.

The US government first issued its first anti-human trafficking policy under
President Bill Clinton in 1998, a development that has seen unprecedented forward movement around the world in efforts to end human trafficking, according to former US Secretary of State Hillary Rodham Clinton.

Clinton acknowledges, however, that much needs to be done, especially in identifying and addressing the root causes of trafficking, including policies that contribute towards the trafficking of vulnerable children.

“The human trafficking phenomenon affects virtually every country, including the United States. In acknowledging America’s own struggle with modern-day slavery and slavery-related practices, we offer partnership. We call on every government to join us in working to build consensus and leverage resources to eliminate all forms of human trafficking,” said Clinton.

Her sentiments reflected the thinking of US President Barack Obama, who says: “Sadly, there are thousands who are trapped in various forms of enslavement, here in our country…oftentimes young women who are caught up in prostitution. So, we’ve got to give prosecutors the tools to crack down on these human trafficking networks. Internationally, we’ve got to speak out. It is a debasement of our common humanity, whenever we see something like that taking place.”

TIP serves as a US diplomatic tool aimed at engaging the world in the fight against human trafficking.

In the wake of continued negative TIP ranking, Malawi has set out to turn things around, and has for the past five years engaged an extra gear in efforts aimed at nipping human trafficking in the bud. Efforts to develop legislation to combat human trafficking started in November 2004, and these efforts were mainly targeted at fulfilling Malawi’s obligations under the United Nations Protocol to Suppress, Prevent and Punish Trafficking in Persons adopted in 2002. The protocol came into
force in 2003.

Between 2004 and 2006, the country increased its efforts through reviews of a myriad of loosely attached legislation touching on human trafficking, and has achieved positive strides through the Malawi Law Commission. The commission launched a number of preparatory activities including the 2005 publication of a research paper on trafficking in persons, primarily focusing on the trafficking of women and children
for sexual exploitation within and outside Malawi.

The commission also reviewed a number of other legislation and policies, which included the National Action Plan for Orphans and Vulnerable Children, Children and Young Persons Act, Wills and Inheritance Act, Adoption of Children Act, Divorce Act, the PenalCode.

Some of its work has since started bearing fruit. For instance, the Child Care, Protection and Justice Bill developed by the commission completely reformed the Children and Young Persons Act by introducing extensive reforms to the legal framework affecting the care and protection of children.

The Malawi Law Commission has not taken these strides on the chin and sat back. In September 2009, the commission submitted the report on the Development of the Trafficking in Persons Legislation to former Justice and Constitutional Affairs Minister Prof. Peter Mutharika.

This was the culmination of work that started in 2007, when the Malawi Law Commission in consultation with the Judicial Service Commission appointed a special Law Commission whose mandate was to develop legislation on prevention and elimination of trafficking in persons.

Mutharika said the report was a manifestation that the country was doing all it could to come around the problem of human trafficking, adding government was committed nipping human trafficking in the bud.

“Government is very much committed to tackling the problem of human trafficking. We know that women and children bear the brunt of such practices, yet this is a group of people that contributes positively towards social-economic development,” said Mutharika.

He reiterated government’s commitment to solving the puzzle that is human trafficking, and asked for close collaboration with government departments, civil society organisations and community members.

Mutharika said the fight against human trafficking required consulted efforts, and commended NGOs for their work in increasing public awareness.

Law Commission submits draft Trafficking legislation

Malawi is on verge of having comprehensive legislation dealing with issues of human trafficking following submission of the Malawi Law Commission’s Development of Trafficking in Persons draft legislation report.

The long awaited for report was submitted to Justice and Constitutional Affairs Minister, Prof. Peter Mutharika., in September this year and aims at providing a comprehensive legislative framework for combating and preventing trafficking in persons using human rights based approaches.

Once enacted by Parliament, the legislation will apply to where the offense committed is committed wholly or partly in Malawi; the offense is committed outside Malawi but the victim happens to be a Malawian citizen; the offense is committed outside the country by a citizen of Malawi or a person who is resident in Malawi; or the offense involves an organized criminal group, committed outside Malawi with a view to
the Commission of an offense under this act, within Malawi .

The report was cause for relief for many, including judicial officers.

The existing legal framework in Malawi makes no express reference to the offense of trafficking in persons, the result has been disastrous as court officials have been forced to apply different statutes.

While the Penal Code recognizes that trafficking-related offenses breach various forms of fundamental rights and freedoms guaranteed under the constitution and need to be criminalized, penal provisions cut across various laws. Some of these laws include the Immigration Act, the Employment Act, the Extradition Act and the Mutual Assistance in Criminal Matters Act.

This has led prosecuting authorities to sometimes apply different sentences, a case in point being that of Masautso Banda- who employed 10 children under the age of 14. The prosecuting authority used the Employment Act to bring to book traffickers who exploited others through forced labour.

Banda was accused of trafficking children from Dedza to Mchinji for labour, and was charged under Sections 21 and 24 of the Employment Act for employing 10 persons under 14 years of age. The accused pleaded guilty and was sentenced to pay a fine of K5000, to pay the sum of K1,500 to each of the trafficked children as compensation for their
suffering for three days, and to pay the children’s transport expenses from Mchinji to Dedza.

In default, the accused was sentenced to imprisonment for 11 months.

Banda paid the fine and escaped a prison sentence.

In some cases, prosecuting authorities have failed to secure convictions for trafficking offenses because existing laws were not drafted to capture the peculiar nature of the offense of trafficking in persons- a peculiarity illustrated in the case of Ruth Lourenco versus the Republic.

In 1999, three destitute girls from Lilongwe, aged between 15 and 19 years, were arrested in a police raid at sex club in Amsterdam and were subsequently deported to Malawi.

The accused, a local businesswoman, was accused of trafficking them and stood trial on charges of procuring for prostitution outside Malawi. She was acquitted on technical grounds because, by the time the girls were approached by the accused, they were already commercial sex workers due to their destitution.

The court thus held that since they were already prostitutes prior to their recruitment, they could not have been procured for the purpose of prostitution as set out under section 140 of the Penal Code.

The report on ‘Development of Trafficking in Persons Legislation’ will thus fill many prevalent gaps, and give Malawi a vintage point in dealing with human trafficking cases. It comes after comprehensively examining various international instruments, among them the Universal Declaration of Human Rights; International Covenant on Civil and Political Rights; International Covenant of Economic, Social and Cultural Rights, United National Convention against Transnational Organized Crime to Suppress, Prevent and Punish Trafficking in Persons, especially Women and Children; Convention on the Elimination of All Forms of Discrimination against Women; Convention on the Rights
of the Child; the Worst Forms of Child Labour Convention; Protocol to the African Charter on Human and People’s Rights on the Rights of Women; Southern African Development Community Protocol on Trafficking in Persons; Millennium Development Goals, among others.

Commissioners assigned to the task recommended that proposed legislation provide comprehensive provisions on the prevention and elimination of trafficking in persons; provide the establishment of a Board for co-ordination and management of matters related to trafficking in persons; provide provisions for care, assistance and
protection of trafficked persons; provide for local and international co-operation on matters of trafficking in persons; as well as a provision catering for connected matters.

The commissioners included Penston Kilembe as chairperson, Doreen Kapanga as deputy, and Gertrude Lynn Hiwa, Wezi Kayira, Justice Maclean Kamwambe, Tonda Chinangwa, Elias Zirikunkhongo, Grace Tikambeni Malera, Maxwell Matewere and Habiba Osman as members.

MNACT Special report on human trafficking
Millions of African men, women and children are being forced into situations of labour and sexual exploitation, both in Africa and abroad, annually. At the international level, trafficking in persons has been identified as a serious threat to human security and development by governments, pressure civil society organisations, pressure groups and the United Nations.

For many African governments, however, the problem has only been recently acknowledged.

Human trafficking came to the fore at the turn of the 1990s, and particularly during the first decade of the Millennium, as the international community came to recognize it as one of the major challenges facing the globalised world. Increased cknowledgement of the existence of the practice, also described as modern day slavery,
helped the world focus on this new form of slavery, efforts that begun to expose the devastating plight of trafficked persons.

Members of the international community, including Malawi, have never looked back.
In Malawi, initiatives to develop legislation aimed at combating trafficking in human begun in earnest in November 2004- a programme of action aimed at fulfilling Malawi’s obligations under the United Nations General Assembly’s Protocol to Suppress, Prevent and Punish Trafficking in Persons, especially Women and Children.

The Protocol
was adopted in 2000 by UN member states but came into force in 2003.

It supplements the United Nations Convention against Transnational Organized Crime, which came into force in 2001.

Malawi is still working on new anti-human trafficking legislation since the currently has no existing legal framework that makes express reference to the offense of child trafficking.

This could explain why Malawi has remained stuck on Tier 2 in the United States of America-Department of State’s Trafficking in Persons Report (TIP) published in June, 2009.The Department of State is required by law to submit each year to the US Congress a report on foreign governments’ efforts to eliminate severe forms of trafficking in persons.

The report serves as US government’s diplomatic tool aimed at increasing global awareness of the human trafficking phenomenon and sheds new light on various facets of the problem. It highlights shared and individual efforts of the international community and encourages foreign governments to take effective action against all forms of trafficking in persons.

The impacts of human trafficking are devastating as victims may suffer physical and emotional abuse, rape, threats against self and family and even death. That is one of the reasons the practice remains a multi-dimensional issue: it is a crime that deprives people of their human rights free and freedoms, increases global health risks, fuels growing networks of organized crime and can sustain levels of poverty
and impede development in certain areas.

Tiers are categories under which countries and ranked in relation to their efforts against human trafficking. Tier 1 is for countries whose governments fully comply with the Trafficking Victims Protection Act’s (TVPA) minimum standards, and includes such countries as Australia, Austria, Belgium, Canada, United Kingdom, Nigeria, Mauritius, Germany and Italy.

Tier 2 is the ranking for countries whose governments do not fully comply with the TVPA’s minimum standards, but are making significant efforts to bring themselves into compliance with those standards.

Countries in this group include Malawi, Mozambique, Namibia, Israel, Jamaica, Japan, Afghanistan, Brazil, Uganda and Zambia. But category also has a Watch List, and this includes countries whose governments do not fully comply with TVPA’s minimum standards but are making significant efforts.

It takes into consideration such factors as the absolute number of victims of severe forms of trafficking (where their numbers are significant), or where such numbers are significantly increasing; failure to provide evidence of increased efforts to combat severe forms of trafficking in persons from the previous year; and, the determination that a country is making significant efforts to bring themselves into compliance with minimum standards was based on commitments by the country to take additional future steps over the next year. Countries include China, Gabon, Lesotho, Argentina, Egypt,
Tunisia, and Yemen.

The last category is that of Tier 3, which is for countries whose governments do not fully comply with the minimum standards and are not making significant efforts to do so. Examples include Swaziland, Zimbabwe, Eritrea, Burma, Chad, Malaysia, North Korea, Saudi Arabia, Syria, Papua New Guinea, among others.

The reality of human trafficking also came to the fore during a January, 2008 National Consultative Workshop, which firmly entrenched views that trafficking in persons was just an international phenomenon but one that is also occurring within the borders of Malawi, involving both Malawian victims and perpetrators.

In the period between 1999 and 2004, Malawi came to the spotlight as a country of origin, transit and designation in East and Southern Africa for transnational victims to South Africa and Western Europe following the publication of a study by the International Organization for Migration carried out in 2003. This was partly because the country was also classified in Tier 2-Watchlist by the 2004 US T.I.P Report.

However, issues surrounding external and internal migration (one of the areas through which human trafficking takes place) primarily for labour that has at times turned out to be exploitative are deeply entrenched in Malawi’s history. International labour migration from Malawi to neighbouring mining countries of South Africa, Zimbabwe and Zambia dates back to the historical ties that arose at the creation of
the Federation of Rhodesia and Nyasaland in 1953, when cheap labour from Nyasaland was used to run the mines in Northern and Southern Rhodesia.

Upon the dissolution of the Federation and after attaining independence, labour flows continued out from Malawi, and were formalized in the early 1980s by the Temporary Employment Bureau of Africa (TEBA), which used to recruit people to work in the minds of Zimbabwe and South Africa. Although the migrant workers worked under extremely exploitative conditions, that returned were able to raise their standard of living and thus the prospect of working abroad attracted many.

TEBA stopped recruiting people sometime between 1989 and 1990 after an aeroplane carrying returnees crushed. Since then, there have been a number of difficulties in re-introducing the system despite the fact that many people are still interested in it. The gap created by the end of centrally organized mine migration to South Africa and other countries has led to the development of informal and illegal smuggling
rackets taking people across the border to these countries, according to the Development of Trafficking in Persons Legislation Report submitted to former Justice and Constitutional Affairs Minister, Prof. Peter Mutharika.

The Malawi Law Commission, reviewing the country’s human trafficking statutes, has submitted the report.

The June 2009 TIP commends the Malawi government for taking significant steps to fighting human trafficking, observing that: “The Government of Malawi’s anti-trafficking law enforcement improved over the last year, though punishments of trafficking offenders remained weak, inconsistent and highly dependent on the knowledge level of the judges and prosecutors involved in the case.”

The country prohibits all forms of trafficking through existing laws, including the Employment Act and articles 135 through 147 and 257 through 269 of the Penal Code, though lack of specific anti-trafficking legislation allows for a range of potentially weak punishment to be imposed on convicted trafficking offenders.

There has been little research on the physical and psychological health consequences of women, children trafficked in Malawi, or Africa, but a study on The Physical, and psychological health consequences of women and adolescents trafficked in Europe points to dire consequences.

The study, titled ‘Stolen Smiles’ quotes one of the trafficked women, a Lithuanian citizen trafficked to London: “I feel like they have The study, funded with support from the European Commission’s Daphne Programme, with additional funding from the International Organisation for Migration and Sigrid Rausing Trust, says 60% of the women victims reported being physically and/or sexually abused before they were
trafficked while 95 percen% reported physical and sexual violence while in the trafficking process. Fifty-eight percent reported physical injuries while 20% of the women reported that a relative knew their trafficker.

here were also high levels of mental health problems, with 38% of the victims reporting suicidal thoughts and 58% reporting symptom levels of posttraumatic stress disorder upon entry into care.

Malawi is taking the necessary steps to end human trafficking, following increased efforts in drafting requisite laws. It is hoped that once passed into law, ‘Development in Trafficking in Persons draft Legislation could become the immediate tonic for current challenges in the country’s human trafficking legislation.

Facts on human trafficking

• Human trafficking affects men, women and children, centrally to
conceptions that it affects only women and children.

• The International Labour Organisation reports that there are 12.3
million people in forced labour, bonded labour, forced child labour
and sexual servitude.

• According to the United States Department of State, figures vary
from study to study, and hover anywhere between 4 million to 25

• A U.S Government-sponsored study in 2006 revealed that approximately
800, 000 people are trafficked within national borders.

• The Trafficking in Persons Report of June 2008 estimates that 80 per
cent of transnational victims are women and girls, and up to 50 per
cent are minors.

• Trafficking in persons is taken as a relatively low risk business,
but if successful garners high payoff.

• According to International Police (Interpol), trafficking in women
for sexual exploitation is a multi-billion-dollar business that
involves citizens of most countries and helps sustain organized crime.

• Human trafficking has adverse physical and psychological health
consequences for women, men and children.

• The June 2009 Trafficking in Persons Report (TIP) ranks Malawi on
Tier 2, the ranking for countries whose governments do not fully
comply with the Trafficking Victims Protection Act’s minimum
standards, but are making significant efforts to comply.

• Malawi has no express law on human trafficking.

• The Malawi Law Commission submitted a ‘Development of Trafficking in
Persons Legislation’ to the Ministry of Justice and Constitutional
Affairs in September 2009.

• The Malawi Network against Child Trafficking currently has 69
organisations. MNACT is a network of government (through the Ministry
of Gender, Child and Community Development) and non-state actors aimed
at facilitating anti-trafficking interventions in Malawi.

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