WHAT HAPPENS TO VICTIMS AFTER TRAFFICKING
Foreign trafficking victims often go undetected or face arrest for crimes associated with their trafficking experience such as prostitution and immigration violations. Women in prostitution are at times too hastily screened without a thorough investigation into whether they are trafficking victims. Also, say NGOs, potential foreign trafficking victims are overlooked as a result of law enforcement’s continuing focus on deporting undocumented migrants (U.S. Department of State, 2012). This pattern reflects a lack of sufficient anti-trafficking training among law enforcement. Twenty-seven Chinese trafficking victims who were arrested in a brothel raid in March 2008 were subsequently deported to China for immigration and employment violations. The traffickers in this case were also arrested in the brothel raid and deported (U.S. Department of State, 2009). Deporting both victim and trafficker both hinders prosecution and enhances the potential for retribution or re-trafficking. Nde Ndifonka says victims of trafficking live in constant fear as a result of the trauma they have experienced: “This may at times cause the victims to be afraid of testifying against their traffickers. The safety and privacy of a victim has to be upheld at all times during the rehabilitation process. There is a 14-day stay on deportation, which has, in practice, been extended to allow for comprehensive assistance to be provided to victims of trafficking. Under the new [anti-trafficking] law, [if passed], these protections would be greatly increased.”
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Victims are often undetected or arrested for offenses they commit related to their trafficking experience because essential personnel—such as first responders—are not sufficiently trained to identify trafficking victims. “Persons not getting sufficient training are the police, emergency service providers, and the division of community safety,” Bews said. The National Prosecuting Authority of South Africa (NPA), the IOM, and NGOs run anti-trafficking trainings, though attendance seems to be sporadic. The other issue is that NGOs, who simply do not have an adequate number of personnel, are carrying out much of the anti-trafficking training efforts. “While NGOs do anti-trafficking training, it is on an ad hoc basis. There is just not the same coordination [as with the IOM and NPA]. It is hit or miss.” Fortunately, the IOM has been able to train over 10,000 government officials from the SADC, whose member nations are Angola, Botswana, the Democratic Republic of the Congo, Lesotho, Madagascar, Malawi, Mauritius, Mozambique, Namibia, Seychelles, South Africa, Swaziland, Tanzania, Zambia, and Zimbabwe. The immigration officials, police, social workers, and NGOs of all these nations are likely to come across victims of trafficking, Ndifonka said. “The efforts have yielded benefits; the IOM has seen more identification of victims and questioning of victims because more victims are receiving assistance as opposed to being summarily deported.”
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Collaborative anti-trafficking efforts among African nations are essential. Since organized crime entities around the world cooperate with one another in human trafficking, it is impossible to combat trafficking in South Africa without international cooperation. Malusi Gigaba, former deputy minister of Home Affairs, says: “SADC and [other] African countries must all be urged to provide their nationals with identity and travel documents to make it easier and safer for them both to be identifiable at home as well as to travel abroad. We need further to harmonize both our immigration and trafficking legislation in the region and continent so that we can all have common instruments to combat human trafficking” (SANews, 2010b).
Police have begun to implement victim protection provisions in the SOA and the Children’s Act. Persons identified or suspected of being victims of trafficking are to receive services and shelter at NGO facilities designated for victims of gender-based violence, rape, domestic abuse, and sexual assault (U.S. Department of State, 2009). There are no shelters available for male victims of human trafficking. The Department of Social Development (DSD) is the only agency authorized to refer human trafficking victims to registered private shelters. Through a collaborative effort with SAPS and NGOs, the DSD helps victims to prepare for court and aids them through the trial and/or repatriation process (U.S. Department of State, 2010). Foreign victims who agree to remain in witness protection programs while awaiting the trial of their traffickers can also receive long-term assistance. The DSD and SAPS give each other formal notice of cases to ensure that victims receive services in a timely manner and that evidence and testimony are efficiently gathered (U.S. Department of State, 2010).
While the recent implementation of the Children’s Act and the potential passage of the Prevention and Combating of Trafficking in Persons Bill are positive steps in South Africa’s anti-trafficking efforts, the ability of service providers to actually enforce these laws remains unknown. Bews said that whereas child-protection services are a government responsibility in most other countries of the world,
to a large extent the Children’s Act is to be implemented by NGOs, with no additional funding from the government. The reality is that we don’t have enough registered social workers. As an NGO we get a subsidy from the government, but while the responsibilities may increase, the funding does not. The subsidy has not increased over the past two years. We don’t have the staff and resources to do anything but superficial work. As a result, we deal with cases of circumstantial neglect as opposed to other, more challenging cases.
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Another concern is that forced-labor victims, particularly men, do not have the same access to services and shelters as victims of sexual exploitation. This form of trafficking often goes undiscovered, as it is not a focal point of internal anti-trafficking efforts. According to Bews, “Labor inspectors from the Department of Labor simply aren’t checking for this [trafficking for forced labor]. The reality is that without proper training they won’t detect it. It is a worrying situation.” And it is difficult to know how many victims have received assistance, because there are no official statistics, and law-enforcement records continue to classify victims of trafficking for commercial sexual exploitation as victims of domestic abuse, rape, and gender-based violence (U.S. Department of State, 2009). IOM shelter information reveals that in 2005 and 2006, 66 sex-trafficking victims (25 in 2005 and 41 in 2006) were sheltered by IOM compared to 27 victims of forced labor. However, awareness of forced labor among officials and service providers may be on the rise. For example, from 2005 to 2006 the number of forced-labor victims sheltered by IOM more than doubled, from 7 to 20 (UNODC, 2009). In 2011, 13 multipurpose shelters with staff trained to assist trafficking victims aided 59 trafficking victims (U.S. Department of State, 2012).
The victim breakdown in 13 criminal cases analyzed in the 2010 NPA report provides a glimpse into the identified forms of trafficking, the countries of origin, and the ages of those trafficked to and within South Africa (NPA/HSRC, 2010). The cases primarily involve trafficking for commercial sexual exploitation. One case involved trafficking for forced labor, and two toddlers (3 years old) were suspected to have been abducted and murdered for the removal of body parts. All the victims in the cases were female. Twenty of the girls and women were from eastern Europe, 15 from Thailand, 10 from South Africa, and 3 unknown. The victims trafficked from eastern Europe to South Africa were between the ages of 20 and 30. Those trafficked from Thailand to South Africa were age 18 and up; those trafficked within South Africa were from age 13 to the early twenties. Most of the victims trafficked within South Africa were under the age of 18. Four of the 13 cases were withdrawn because witnesses (the trafficking victims) disappeared before the cases went to trial (NPA/HSRC, 2010).
André Neethling, the SAPS provincial coordinator for child protection in Gauteng, says many trafficked girls are introduced to drugs soon after being abducted, and as a result are problematic witnesses. “These children are very erratic,” Neethling told
Carte Blanche
. “They would support you now. When they get the urge for drugs again, they would run away from the place of safety. So we have a very low success rate in terms of prosecution of these people [traffickers]” (Carte Blanche, 2007). One concern is not only the lack of prosecutions against traffickers but also the long delays in cases that do go forward. In 2010 Carol Bews noted that one case involving three girls trafficked from Mozambique to South Africa for commercial sexual exploitation had been ongoing for 18 months:
It has been a long time, and those young girls have been kept in South Africa during that long period of time. The justice system is letting them down by leaving them hanging for so long. The young girls are sitting in shelters. The hope that they would get retribution is just not likely. It was covered by the SOA when the case started, but the attorneys could not utilize the Children’s Act because it was not yet implemented. It is common for cases to take a long time to work through the justice system. By the time the case is in court the witnesses can’t remember a lot of the details and thereby become unreliable witnesses. When I have taken a case through court I had to be like a dog with a bone. Dockets quickly get lost and delays frequently occur.
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WHAT HAPPENS TO TRAFFICKERS
Historically, in the absence of a comprehensive anti-trafficking law, prosecutors have utilized immigration violations and other trafficking-related offenses to bring traffickers to trial. For instance, in March 2010 the government used racketeering laws to convict two traffickers, Basheer Sayed, a South African national, and Somcharee Chuchumporn, a Thai national, who trafficked women from Thailand to South Africa for prostitution. While the women did know that they would be working as prostitutes, they did not know the conditions they would face upon arrival (South Africa—The Good News, 2010). NPA spokesman Mthunzi Mhaga said the defendants were responsible for managing operations and activities at the brothel. “The premises were therefore identified as the central operational point for the unauthorized and unlawful activities. There was therefore an existence of an organized human trafficking structure where females were being sexually exploited for a profit” (South Africa—The Good News, 2010). Sayed and Chuchumporn were convicted in the Durban Regional Court for racketeering, contravention of the SOA and Immigration Act, and money laundering. They face a maximum sentence of life imprisonment or a fine of $13.55 million. The victims have since returned to Thailand (South Africa—The Good News, 2010). In November 2010 sentencing of Sayed and Chuchumporn was postponed to allow the defendants to apply to have their convictions set aside. The couple wanted the conviction to be reviewed by the Pietermaritzburg High Court on the grounds that the court interpreter in the original trial had not taken the prescribed oath and had not translated fluently. In June 2012 the couple asked the Pietermaritzburg High Court for a retrial. The court has not yet made a judgment (Independent Online, 2010; Regchand, 2012).
It is a positive sign that, lacking a comprehensive anti-trafficking law, the NPA uses existing legislation. The SOA, the Children’s Act 38, and the Prevention of Organized Crime Act have all been utilized to investigate and charge persons suspected of trafficking for commercial sexual exploitation (U.S. Department of State, 2009). Sex traffickers have also faced prosecution for trafficking-related offenses such as kidnapping, rape, and indecent assault. The problem is that convictions under these associated crimes typically result in less stringent penalties than those that would be covered under an all-inclusive anti-trafficking law. In cases of cross-border trafficking, the government has no jurisdiction to charge perpetrators with kidnapping if the act occurred in a different country (Stuurman, 2008).
In the 13 human trafficking criminal cases highlighted in the 2010 NPA report, there were 4 withdrawals because of missing witnesses, 2 convictions, 2 acquittals, and 3 cases were still pending at the time of the report. The majority of the traffickers involved in these cases were from South Africa or Thailand. In addition, one trafficker was from Mozambique, one was from Nigeria, and one was from Malawi. Forty-five of the alleged traffickers in the 13 cases were women, and 21 were men (NPA/HSRC, 2010). One sex trafficker was convicted in 2011 for trafficking three Mozambican girls into commercial sex and sentenced to life imprisonment. In February 2012, a sex trafficker was sentenced to 23 years’ imprisonment for the sex trafficking of a Swazi woman after fraudulently offering her a job. Labor traffickers are rarely prosecuted, but in May 2008 Aldina “Diana” Hdonegildo dos Santos from Mozambique was charged under the SOA and South Africa labor laws. The woman allegedly forced three children into domestic servitude and prostitution. After several delays and interruptions, the trial resumed before the Pretoria Magistrate’s Court in February 2009. The case was still ongoing as of June 2012. In 2011, five suspected traffickers were apprehended, including two labor traffickers and two allegedly complicit police officers (Club of Mozambique, 2008; U.S. Department of State, 2009, 2010, 2012).
Suspended sentences and/or simple fines for traffickers are a serious problem in South Africa. Of 18 traffickers convicted in 2010, nearly all were given fines and/or suspended sentences. Even the 2 convicted traffickers who had to serve prison time had their sentences significantly reduced as a result of suspended time: a 16-year sentence was reduced to 2 years and a 14-year suspended sentence, and a 5-year term was reduced to 2 years with a 3-year suspended sentence (U.S. Department of State, 2011). Lengthy prosecutions are typical. Most prosecutions opened in South Africa between 2006 and 2009 had not been concluded as of 2010 (U.S. Department of State, 2010). The reality is that most traffickers are not caught and that they quickly adapt their trafficking style depending on a nation’s specific strengths and weaknesses. For instance, traffickers often do not use Durban International Airport, particularly when trafficking women from Thailand, because they know that they will be traced. Instead they traffic victims through Johannesburg’s O. R. Tambo Airport or bring the victims into South Africa by road (Cole, 2008). “The sad reality is [that] traffickers are way ahead of us,” said Bongiwe Mlatsha, coordinator of the KwaZulu-Natal office of IOM, at the February 2009 IOM workshop on human trafficking. “They are smart and they are already making their plans. They will check on the gaps, and then close them. We lag far behind” (Attwood, 2009).