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AFRICAN HUMAN RIGHTS LAW JOURNAL

(2014) 14 AHRLJ 509-525

Human trafficking and human rights violations in South Africa: Stakeholders’ perceptions and the critical role of legislation

Joshua Aransiola*

Visiting Researcher, Centre for Research in HIV and AIDS, School of Public Health, University of the Western Cape, South Africa; Senior Lecturer, Department of Sociology and Anthropology, Obafemi Awolowo University, Nigeria

Christina Zarowsky**

Director, Centre for Research in HIV and AIDS, School of Public Health, University of the Western Cape, South Africa; Head, Department of Social and Preventive Medicine, School of Public Health, Centre de Recherche-CHUM, Université de Montréal, Canada

Summary

This article examines the perspectives of governmental and non- governmental stakeholders in South Africa on the dynamics of human trafficking in South Africa, and on efforts to protect the human rights of rescued victims of human trafficking prior to the promulgation of human trafficking legislation in the country. The authors seek to understand the range of views and approaches of stakeholders to trafficking, including possible links to HIV, as human trafficking is commonly discussed in the media, but empirical research on the scale, dynamics, and impacts of trafficking in South Africa is scarce. This exploratory situation analysis involves desk review and 24 key informant interviews, using purposive and sequential referral sampling. Respondents included government departments and non-governmental organisations working at a border- crossing site (Musina), and two major destination sites for irregular migrants, including trafficked people (Johannesburg and Cape Town).

* PhD (Obafemi Awolowo); aransiolajo@gmail.com

** PhD (McGill); czarowsky@gmail.com

Almost all respondents reported that human trafficking is significant and complex, and that both cross-border and internal movement of trafficked victims violate victims’ rights in several ways. While they suffer at the hands of organised crime syndicates, their rights are further violated even after rescue, prior to the recently-promulgated human trafficking legislation in the country. Victims’ access to justice is also either delayed or denied in many cases due to the inability to prosecute the perpetrators. The study concludes that, despite the recent giant step in the right direction in promulgating human trafficking legislation in South Africa, there is a need for further efforts by the South African government to take additional proactive and practical measures for optimum effectiveness of the law without which the goal of the Act may remain a tall dream.
Key words: Migration; irregular migration; human trafficking; human trafficking law; South Africa
1 Introduction
Human trafficking is attracting global concern. Article 3(a) of the United Nations (UN) Convention Against Transnational Organised Crime (UNTOC) defines trafficking in persons as
the recruitment, transportation, transfer, harbouring or receipt of persons, by means of the threat or use of force or other forms of coercion, of abduction, of fraud, of deception, of the abuse of power or of a position of vulnerability or of the giving or receiving of payments or benefits to achieve the consent of a person having control over another person for the purposes of exploitation. Exploitation shall include, at a minimum, the exploitation of the prostitution of others or other forms of sexual exploitation, forced labour or services, slavery or practices similar to slavery, servitude or the removal of organs.
Human trafficking and smuggling have various human rights consequences.¹Victims are subjected to various physical, sexual and emotional abuses.²The UN Convention added two Protocols

1 J Bhabha ‘Trafficking, smuggling, and human rights’ Migration Information Source: Fresh thought, Authoritative data, Global reach 2005 http://www.child trafficking.com/Docs/migration_funda_1007.pdf (accessed 4 July 2012); J Fitzpatrick ‘Trafficking as a human rights violation: The complex intersection of legal frameworks for conceptualising and combating trafficking’ (2003) 24

Michigan Journal of International Law 1143; A Gallager ‘Human rughts and the new UN Protocols on Trafficking and Migrant Smuggling: A preliminary analysis’ (2001) 23 Human Rights Quaterly 975; AD Jordan ‘Human rights or wrongs? The struggle for a rights-based response to trafficking in human beings’ (2002) 10

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(Palermo Protocols) to UNTOC in the year 2000.³The Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children consists of 20 articles, starting with general to specific provisions in relation to human trafficking. Specifically, article 5 criminalises trafficking in persons and mandates state parties to enact legislation to criminalise human trafficking. Article 6 provides for the assistance and protection of human trafficking victims through the provision of physical and psychological needs, as well as the social recovery of victims, including housing, counselling, information, safety, medical care, employment, educational and training opportunities. Also, article 7 provides for the conferment of refugee status on rescued victims at the receiving countries, while article 8 states procedures and responsibilities for the repatriation of rescued victims. In article 9, state parties are mandated to prevent human trafficking through research, information, mass media campaigns and social and economic initiatives to prevent and combat trafficking in persons. State parties are also to initiate bilateral and multilateral co- operation with affected countries for the effective control of the crime. Article 10 encourages information exchange among affected countries, while article 11 mandates state parties to strengthen border control as one of the means of preventing human trafficking.

In addition to this, the Protocol against the Smuggling of Migrants by Land, Air and Sea also provides clarifications on human smuggling and trafficking and prohibits human smuggling and trafficking by land, air and sea. Article 3 of the Protocol states:

‘Smuggling in migrants’ shall mean the procurement, in order to obtain, directly or indirectly, a financial or other material benefit, of the illegal entry of a person into a state party of which the person is not a national or a permanent resident.
Article 5 states that illegal migrants themselves must not be held responsible for the crime of smuggling that they are subject to, while article 6 defines the scope of criminalisation of human smuggling to include producing, procuring, providing or possessing a fraudulent

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