South Africa's approach to the global human trafficking crisis: an analysis of the proposed legislation and the prospects of implementation.

• Author: Najemy, Laura Brooks

1. INTRODUCTION

   The worldwide epidemic of trafficking in persons continues to be a global problem each year, (1) despite the creation and ratification in 2000 of the United Nations Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children, Supplementing the United Nations Convention Against Transnational Organized Crime ("Protocol" or "U.N. Protocor"). (2) Even with 117 signatories, (3) the Protocol alone is ineffective in curbing the increasing crisis. The responsibility to remedy the problem still lies in the hands of individual countries, (4) which must enact legislation to deal with intrastate issues and work with each other to deal with interstate issues. South Africa is not only a signatory to the Protocol; it ratified the Protocol on February 20, 2004. (5) Despite the country's commitment to eliminating the illegal trafficking of persons, it took the South African Law Reform Commission over four years to draft legislation combating human trafficking.

   On November 25, 2008, the South African Law Reform Commission released the final version of the Prevention and Combating of Trafficking in Persons Bill. (6) This proposed legislation was created to

   [G]ive effect to the [Protocol]; to address the trafficking of persons within or across the border of the Republic; to prevent trafficking in persons; to provide for an offence of trafficking in persons and other offences associated with trafficking in persons; to provide for measures to protect and assist victims of trafficking in persons; and to provide for matters connected therewith. (7) The proposed bill was submitted to the Minister of Justice and was later published for public comment after March 31, 2009. (8) The period for public commentary closed on June 15, 2009, and the bill was expected to be presented to Parliament for a year-end vote. (9)

   Since the inception of the United States' Victims of Trafficking and Violence Protection Act of 2000, (10) the United States annually issues the Trafficking in Persons Report in an attempt to gather and disseminate information about the growing worldwide problem of human trafficking. (11) The United States monitors and evaluates other governments' efforts to combat trafficking using a tier system that determines a state's level of compliance with minimum standards for eliminating the trafficking of persons. First, the Department of State "evaluates whether the government[s] fully compl[y] with the TVPRA's [Trafficking Victims Protection Reauthorization Act] minimum standards for the elimination of trafficking." (12) Next, the Department "considers whether governments [have] made significant efforts to bring themselves into compliance." (13) There are four possible tier placements, ranging from full compliance to little or no compliance: Tier 1, Tier 2, Tier 2 Watch List, and Tier 3; Tier 1 represents full compliance. (14)

   In the 2005 report, South Africa was removed from Tier 2 and placed on the Tier 2 Watch List. (15) It remained on the Tier 2 Special Watch List from 2005 until 2009. (16) According to the 2008 Report, "[t]he Government of South Africa [did] not fully comply with the minimum standards for the elimination of trafficking; however, it [was] making significant efforts to do so." (17) Throughout the remainder of 2008 and into 2009, South Africa demonstrated its commitment to the elimination of trafficking in persons, warranting its removal from the Tier 2 Watch List and its return to the Tier 2 List in the 2009 Report. (18)

   The enactment of the Prevention and Combating of Trafficking in Persons Bill, combined with proper implementation devices, should be enough to remove South Africa from its current placement on the Tier 2 List, ideally bringing the country up to full compliance with U.S. and international standards for human trafficking. The proposed legislation includes provisions that give full effect to the U.N. Protocol, as well as those that provide for the creation of inter-sectoral task teams throughout the country in order to facilitate its effective implementation. (19) The scope of the proposed legislation, combined with the support of these task teams, should enable South Africa to competently fight human trafficking within and across its borders. The country has numerous reasons (20) to work toward the end goals of eliminating human trafficking and aligning with U.S. and international standards, and it must begin by enacting the proposed legislation.

   This Note will first discuss the historical background of trafficking in persons in South Africa. It will then review the legislative measures currently in place in South Africa to prosecute and prevent human trafficking. Next, it will analyze the proposed legislation and assess the likelihood of its effectiveness with regard to the U.N. Protocol and the standards set forth in the United States' TVPRA. Finally, from international methods of implementing the U.N. Protocol, it will draw suggestions for South Africa to most effectively prevent human trafficking within and across its borders, prosecute those who engage in human trafficking, and protect victims. (21)

2. BACKGROUND: HUMAN TRAFFICKING IN SOUTH AFRICA

   While trafficking in human beings in South Africa is not new, there has been a rapid increase over the past two decades in the prevalence and documentation of cases. (22) With the growth of globalization, human trafficking worldwide has become "a complex, multi-faceted phenomenon involving multiple stakeholders at the institutional and commercial level." (23) In a country where demand for cheap labor and commercial sex is high, it is no wonder that the black-market business of trafficking in persons has flourished in South Africa. A combination of extreme poverty, poor education, and a lack of employment opportunities "propel[s] vulnerable people into the hands of traffickers." (24)

   In the aftermath of apartheid, South Africa has become a "source, transit, and destination country for trafficked men, women, and children." (25) This modern-day form of slavery has become increasingly problematic for South Africans as "[a]rmed conflict and associated dislocation, political and economic upheaval, food insecurity, lack of education and employment opportunities and the blight of the AIDS epidemic make South Africa a magnet that attracts migration from across the continent." (26) As these immigrants are vulnerable and easily susceptible to traffickers, the increase in migration across South Africa's borders correlates with the rise in trafficking. (27) In 2003, the International Organization for Migration ("IOM") published a report on human trafficking in southern Africa. (28) The report notes that male refugees, who make up the vast majority of the growing population of refugees in the region, (29) may turn to conducting human trafficking as a way of easily earning money. (30) The report suggests that "[t]he struggle to survive in South Africa in the face of unemployment and xenophobia pushes some refugee men to pursue opportunities from within the relative security of the clan, which may entail engaging in illegal activities. The trafficking of female family members for sexual exploitation is one such activity." (31) Additionally, criminal syndicates have been implicated as an alternative driving force behind the increase in human trafficking in South Africa. (32)

   According to the Southern Africa Counter-Trafficking Assistance Program ("SACTAP"), "South Africa is commonly regarded as the main country of destination for trafficked persons in the region." (33) It further explains that, "[i]n many cases, women and children are lured to South Africa with promises of jobs, education or marriage, only to be sold and sexually exploited in the country's major urban centres, or small towns and more rural environments." (34) According to a 2004 report by South Africa's Independent Newspapers, "every year nearly 900,000 people are smuggled across borders as sex slaves, child labourers and illegal organ donors, with 75 percent of them going through South Africa." (35) Other research suggests that the number of women and children trafficked annually into South Africa for the purpose of sexual exploitation is between 850 and 1,100. (36) Most researchers, however, seem to believe that cases of human trafficking are underreported, and thus feel that the current statistics do not accurately reflect the immensity of the problem. (37) Many factors may play a role in the projected high percentage of incidents of trafficking in persons that go unreported or undiscovered. For instance, under the current legislative regime in South Africa, there are disincentives for victims of human trafficking to turn themselves in, as they may be prosecuted for prostitution or other crimes. (38) Additionally, South Africa's current witness protection program fails to provide complete support and protection for victims and, thus, may also deter human trafficking victims from stepping forward. (39) Researchers also contend that access to victims is difficult as they are hard to identify, "may speak a language that is not native to the country in which they end up, and may be involved in hidden criminal activity." (40)

   According to a policy paper published by the United Nations Educational, Scientific and Cultural Organization ("UNESCO"), the root causes of human trafficking in South Africa can be broken down into supply and demand factors. (41) Factors that contribute to the supply of victims of human trafficking include "unequal access to education ... lack of legitimate and fulfilling employment opportunities ... sex-selective migration policies and restrictive emigration policies/laws ... less access to information on migration/job opportunities ... disruption of support systems due to natural and human created catastrophes; and traditional attitudes and practices." (42) community

   Many factors augment demand, including the...