By Monica de Souza
A working draft (version as at 27 October 2011) of the Prevention and Combating of Trafficking in Persons Bill [B7-2010] has recently been debated by the National Assembly’s Portfolio Committee for Justice and Constitutional Development. While the recent discussions have focussed on issues such as the status and residence rights of foreign trafficking victims and the penalties that should be imposed for convicted traffickers, the draft reveals that important changes had previously been made by the Committee to narrow the definition of “trafficking”, which, in the original Bill, had encompassed a broad range of conduct.
What is meant by the term “trafficking”?
This question is of great significance because the scope of conduct included in the Bill’s definition of “trafficking” is the same conduct that the Bill criminalises. Effectively, the definition sets out the elements that need to be proven in order to say that a crime has been committed. Where the definition is too narrow the risk is that genuine trafficking victims are denied access to the criminal justice system. On the other hand, where the definition is too broad, unclear or confusing, the trafficking offences based on that definition are difficult to apply and the Bill’s prevention, prosecution and protection aims are unlikely to be achieved. Police do not know whether the behaviour they encounter is legal or illegal, prosecutors do not know how to prove a suspect’s guilt and citizens do not know what conduct they will be punished for. Perhaps more importantly, the victims of “trafficking” cannot be identified, their rights to dignity and security, amongst others, cannot be protected and no assistance can be provided to them after the trafficking ordeal.
In terms of both the original version of the Bill and the working draft, the trafficking definition contains three elements: the trafficking acts (for example, transportation or sale), the means used to commit the acts (for example, coercion or fraud) and the purpose of the acts (most often, exploitation). Each element then lists various conditions that would satisfy the element. This formulation is closely based on the definition of “trafficking in persons” contained in the UN Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children (Palermo Protocol), to which South Africa is a party.
How does the working draft change the Bill’s definition?
In its original form, published early in 2010, the Bill contained a definition for “trafficking” in clause 1 and an offence for “trafficking in persons”, to which that definition had to be applied, in clause 4(1). In other words, the definition of the crime and the criminalisation provision were dealt with separately in the Bill. The working draft does away with this separation and incorporates the definitional elements of “trafficking” into the criminalisation provision at clause 4(1). This eliminates the confusion of having to jump between two different clauses in order to determine the full content of the trafficking offence. It also has the effect of closing the list of acts that could satisfy the first element of the trafficking offence. Whereas the Bill’s definition of “trafficking” introduced the list of acts with the word “includes”, this word does not appear in the working draft’s trafficking criminalisation clause. According to Constitutional Court jurisprudence, the word “includes” potentially introduces a non-exhaustive list of terms. The new formulation of the trafficking definition thus removes this potential and, as such, also removes the potential for a crime that is stated in overly broad terms and rendered ineffective, at least in respect of the first element.
An important change to the third element should also be noted. While the Bill recognised three possible purposes for committing the trafficking acts (exploitation, sexual grooming or abuse), the working draft lists only one purpose – exploitation. The inclusion of “sexual grooming” and “abuse” as purposes was problematic because no definitions were given in the Bill for these terms, and the scope for interpretation was potentially infinite. It was unclear whether “sexual grooming” was equivalent to the offence of sexual grooming included in the Criminal Law (Sexual Offences and Related Matters) Amendment Act 32 of 2007 (SORMA), in which case only the sexual grooming of children and mentally disabled persons could be applicable. The inclusion of “abuse” as a purpose also broadened the scope of the trafficking definition considerably, because it is often used as a blanket term for any kind of sustained harm and because the original Bill explicitly stated that sexual acts (such as kissing) could constitute “abuse”, without stipulating a non-consent requirement.
The meaning of “exploitation” has also been adjusted in the working draft, with the removal of forced marriage and debt bondage as forms of exploitation that could satisfy the purpose element. However, it should be noted that the list of exploitative purposes is non-exhaustive, which means that other forms of exploitation could be included in an interpretation of “exploitation” where these have been removed. The meaning of “sexual exploitation” (a listed form of “exploitation”) is essentially the same as in the original Bill, and refers to any sexual offence contained in SORMA and also “any offence of a sexual nature in any other law”. This could cover a number of offences, some more serious than others, and all of these would satisfy the purpose element of trafficking. While this would provide protection to victims who were trafficked for a range of different sexual reasons, it could also adversely affect the state’s ability to effectively apply and implement the trafficking definition, with the result that victims are unlikely to benefit as the legislation intends them to.
Thus, while some adjustments have been made to narrow the scope of the trafficking offence’s definitional elements, there are other aspects of the definition that are still convoluted and open to much interpretation. It is understandable that the legislature is trying to account for the many different forms and processes of human trafficking. However, where inclusiveness comes at the expense of effectiveness and there is a danger of over-criminalisation and legal uncertainty, the scope of conduct prohibited in the Bill should rather be limited – especially in light of arguments that the three trafficking elements can be prosecuted separately via various other existing laws. This would better protect the rights of trafficking victims.