AFRICA REGIONAL CONFERENCE: IAWJ Human Trafficking in Africa: A Regional and Domestic Response 18 OCTOBER 2007

1. AFRICA REGIONAL CONFERENCE: IAWJ Human Trafficking in Africa: A Regional and Domestic Response 18 OCTOBER 2007

2. Definition of child trafficking ILO Conventions Main elements of child trafficking definition Definition of Trafficking vs.Migration Role of different UN agencies re trafficking Nature & extend of child trafficking in sub-region Nature & extend of child trafficking in sub-region – South Africa, Botswana, Lesotho, Namibia & Swaziland ILO programme in sub-region TECL child trafficking activities in sub-region TECL activities against child trafficking in South Africa: CLPA, Pilots, Research, Legislation, Asset Forfeiture & Lessons learnt & action required TECL action on child trafficking in the BLNS countries TECL action on child trafficking on region level Summary Questions & Answers Outline of Presentation

3. Under international law, child trafficking is a crime involving the movement of children for the purpose of their exploitation The concept is defined in the UN Protocol to Prevent, Suppress and Punish Trafficking in Persons, especially Women and Children of 2000, known as the Trafficking Protocol. It supplements the UN Convention against Trans-national Organized Crime. Child trafficking is defined a Worst Forms of Child Labour according to ILO Convention No. 182 of 1999, or C182. It classifies trafficking among “forms of slavery or practices similar to slavery” and hence a worst form of child labour to be eliminated as a matter of urgency. Short Definition: A child has been trafficked if the child has been moved within a country, or across borders, whether by force or not, with the purpose of exploitation The two forms of human trafficking constitute the world’s third largest illegal trade, after arms and drug trafficking The concept of child trafficking can be unpacked further drawing primarily from these two international instruments. Overview of C182 – Worst forms of child labour Main elements: A child is a person under the age of 18 years; Organised movement of a child Purpose of the movement: exploitation; Movement that renders the child vulnerable No force or deception is required (regarding children) Definition of child trafficking

4. Minimum Age of Employ-ment Convention, 1973 (C138) Covers ‘employment’ and ‘work’ more broadly Children under 15 Minimum age for work:15 years Laws may permit light work for children of 13 and 14 But work may not be harmful for their development Exemptions may be made in exceptional cases e.g. Performing arts Children 15-17 Law may not allow them to do work which is likely to jeopardize their health, development etc. Worst forms of child labour convention, 1999 (C182) Commercial sexual exploitation All forms of slavery or practices similar to slavery Bonded labour Child trafficking Using of children in illegal activities Drug trafficking Housebreaking gangs Children in very hazardous activities To be defined by each country “Usual” production methods may be hazardous to children Because of their higher vulnerability ILO Conventions . ILO members realised there is a need to prioritise the Worst Forms of Child Labour

5. Child labour is work by a child that is exploitative, hazardous or otherwise inappro-priate for the child’s age; detrimental to the child’s schooling; detrimental to the child’s social, physical, mental, spiritual or moral development. Child work is work that is not bad for a child’s health, schooling or development Example: reasonable household chores that do not affect schooling Definitions: Child work, child labour and worst forms of child labourAll regarding work by children under 18 years Increased seriousness Worst Forms of Child Labour • Commercial sexual exploitation of children • Children used by adults to commit crime • Child trafficking • Very hazardous work

6. Main elements of child trafficking definition (1) • A child • is a person under the age of 18 years • Organised movement of a child • someone has organised the movement of a child - a transaction is involved • Movement that renders the child vulnerable • may be across international borders or within a country and where the movement has rendered the child vulnerable, and the vulnerability was planned to be exploited. • do not have close relatives at their destination, do not have money or means to return home, • cannot speak the language, are disadvantaged by their legal status, • suffer a lack of access to basic services (education and health care), • or do not know the environment

7. Main elements of child trafficking definition (2) • Movement for exploitation: • The trafficking protocol (Article 3(a)) provides that exploitation includes: • 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 • By stating that exploitation these kinds of exploitation it is clear that other kinds of exploitation are also included in the definition, such as labour exploitation. • Exploitation can occur at the beginning, middle or end of the trafficking process. • All those who have contributed to it and knew that what they did was likely to lead to the exploitation of the child • recruiters, intermediaries, document providers, transporters, corrupt officials, employers and exploiters – are traffickers. • Conversely, a person moving a child without the intention, knowledge or suspicion that the child would be exploited is not likely to be a trafficker

8. Main elements of child trafficking definition (3) • Movement for labour exploitation • When read with the Worst Forms of Child Labour Convention – C182, in the context of child labour, labour exploitation of children includes all kinds of work that exploits a child. • This overlaps with the forms of exploitation referred to in trafficking protocol. • But also includes work which, • by its nature or the circumstances in which it is carried out, is likely to harm the health, safety or morals of children • all forms of slavery or practices similar to slavery, debt bondage and serfdom and forced or compulsory labour, including forced or compulsory recruitment of children for use in armed conflict (Convention 182, Art. 3(a)); • the use, procuring or offering of a child for prostitution, for the production of pornography or for pornographic performances (C182, Art. 3(b)); • the use, procuring or offering of a child for illicit activities, in particular for the production and trafficking of drugs as defined in the relevant international treaties (C182, Art. 3(c)); • work which, by its nature or the circumstances in which it is carried out, is likely to harm the health, safety or morals of children (C182, Art. 3(d) and C138, Art. 3); • Covers a broader scope of vulnerability and areas of exploitation of children

9. Main elements of child trafficking definition (4) • No force or deception is required - regarding children • child trafficking occurs whether the child was moved voluntarily or by force • provided the other elements of the definition are met. • If during or soon after the child's movement there are elements of force, violence, or unreasonable restriction of the child movement at their place of work, or other harmful effects of the work on them • it would be a strong indication that trafficking may have occurred. • How is child trafficking different to trafficking in adults? • Difference in definition • State custodian of all children • What does this mean? • That we must be much more protective towards children? • Services to CHILDREN should be prioritised (rather than to adults)? • Belief that the outline presented will • promote also the use of C182 with the other international protocols and regional charters and local legislative frameworks and • the interests of vulnerable groups including children as a specific group affected by human trafficking

10. Where the movement of the child was not done with the purpose of exploitation, this is not child trafficking even where the child still ends up in exploitation. Even where the movement has led to greater vulnerability of the child and to labour exploitation. National laws may provide that migration-related child labour, even where this falls outside of the definition of child trafficking, is considered a worst form of child labour. Ito Article 3(d) of C182 worst forms include work which, by its nature or the circumstances in which it is carried out, is likely to harm the health, safety or morals of the child. These kinds of work must be determined by national laws or regulations, after consultation with the organisations of employers and workers concerned. Definition of Trafficking vs.Migration

11. UNODC: United Nations Office on Drugs and Crime Custodian obo UN on trafficking in general tasked with assisting states to ratify and implement provisions of the international Protocol to Prevent, Suppress and Punish the Trafficking in Persons, especially Women and Children. IOM: International Organization for Migration Promotes the positive management of migration and the protection of the rights of migrants globally, and works closely with the UN system through global agreement on various issues. Focus on regional activities (cross-border trafficking) UNICEF: United Nations Children’s Fund Support implementation of the Convention on the Rights of the Child, which includes the protection of children from exploitation and abuse, including trafficking ILO: International Labour Organization Trafficking in children for purposes of labour exploitation, which constitutes one of the worst forms of child labour and amount to forced labour ito C182 Role of different UN agencies re trafficking

12. United Nations launched the Global Initiative to Fight Human Trafficking (UN.GIFT). The Steering Committee for this initiative involves a number of UN agencies at global level. The Southern African cooperation initiative on trafficking is a first-of-a-kind regional development that builds on the UN.GIFT At the heart of the issue is closer collaboration and teamwork Among international agencies, governments and NGOs The organisations asserted two factors, in particular, are critical to combating human trafficking Dedicated legislation on trafficking within every country and Effective working agreements between countries Close cooperation will enhance information sharing, strengthen the pool of expertise and enable the agencies to provide better support to the Southern African region as a whole. thereby enhancing the prospect of cross-border working agreements between countries. Global Initiative to Fight Human Trafficking

13. Widely agreed that there is an absence of reliable information regarding the extent to which trafficking in person is taking place either globally or on the African continent itself. The clandestine & transnational nature thereof makes it extremely difficult to apprehend or prosecute offenders or to verify information ito the scope and nature of the problem. Some efforts have been made to quantify the extent of trafficking on the global scale. US government sponsored research report, 2006 approx 800 000 people are trafficked across national borders every year this figure does not include those trafficked within their own countries. 80% of transnational victims are women and girls and 50% are minors. UNICEF correctly points out that their estimated figure 700,000 women and children trafficked every year in the world has yet to be tested scientifically. With this proviso in mind the following outline of the extent of the problem of trafficking in women and children Nature & extend of child trafficking in sub-region

14. According to the TIP report SA is a source, transit & destination country for trafficked men, women, and children. SA girls are trafficked internally for commercial sexual exploitation and domestic servitude primary provinces of origin are the Eastern Cape and Kwa-Zulu Natal & primary provinces of destination are Gauteng and the Western Cape African countries are trafficked to SA for commercial sexual exploitation & domestic servitude: women and girls agricultural labour: boys and young men Thai, Chinese, & Eastern European are trafficked to SA for debt-bonded commercial sexual exploitation. Another aspect that manifests itself in SA is the trafficking of refugees Cape Town has been singled out as the principle destination point for trafficked victims of refugee producing countries. Nature & extend of child trafficking in sub-region – South Africa (1)

15. Causal or facilitating factors: Internal trafficking An increase in unemployment and poverty High drop-out rates at school levels Inadequate service provision & poor understanding of policy implementation on the part of service providers An increased demand for sex with children from SA Lack of awareness about the concepts of sexual exploitation and trafficking Inadequate legislation Lack of arrests and convictions of traffickers and sex offenders Trafficking to SA the economic situation in SA factors such as the breakdown in extended and nuclear families changes in cultural attitudes and practices Despite the existence of available info, the exact numbers of children being trafficked in and outside SA has not been quantified and neither has the actual monetary income that this illegal activity generates been established. Nature & extend of child trafficking in sub-region – South Africa (2)

16. Is named as a transit country for children being trafficked from other countries into SA for child labour, including commercial sexual exploitation Rapid Assessment study undertaken by ILO only identified 2 children that had been trafficked. Traditional movement of children between sections of the family was widespread purposes of care or education, which constitutes child fostering within the framework of the extended family in return, child is instructed and expected to perform duties such as child minding, livestock herding, fetching water, running errands, and performing other domestic duties Local journalist noted that while the situation is not as extreme as in other countries it is indeed a problem. Internal trafficking manifests through the proactive “sale” of children by parents who cannot support them or the targeting of poor families by people who take their children away with the promise of food, clothes and education. domestic workers or farm labourers. Is prevalent in areas adjacent to farms, where there is likely to be an occurrence of child labour, which in Botswana is closely linked with child trafficking. Nature & extend of child trafficking in sub-region – Botswana

17. Is named as a country of origin for trafficking in women and children mainly to SA transit and destination to a lesser extent Street children both male and female from Maseru are trafficked out of the country by long distance truck driver for sexual exploitation purposes become sex-slaves who are on route to other African countries such as Zimbabwe, Zambia and Malawi Nature & extend of child trafficking in sub-region – Lesotho

18. Substantive information regarding trafficking of persons is not readily available. The TIP report provides no information. The ILO rapid assessment study undertaken only identified and interviewed 8 children who were trafficked for domestic/agricultural work, commercial sexual exploitation or any other work. however did hear of other cases where trafficking was known or suspected. SANTAC report internal trafficking found of girls as young as 13 and 14 moved from Keepmanshoop, Okahadja to Oshikango cross border trafficking 10 Namibian prostitutes were among 188 14-25-year-old foreign prostitutes freed from British brothels, massage parlours and private homes since February 2006. Nature & extend of child trafficking in sub-region – Namibia

19. Substantive information regarding trafficking of persons extremely limited. The TIP report provides no information. The ILO rapid assessment study undertaken Research involved the collection of qualitative data from a sample of 110 Swazi children employed as domestic workers, herders, farm workers, vendors and gardeners. Research findings indicated that Initial contact leading to their employment in distant places was usually made at the children’s homes, and often involved family or relatives. Potential employers promised employment, cash payment, and/or care and upkeep. While most of the promises were kept, others were not. Most of the children did not oppose the idea of being employed because they wanted to secure employment, escape poverty and deprivation and improve their standard of living and that of the family as a whole. Most of the children were not related or previously known to their employers. Working conditions of the children were often characterised by long hours of hard work, without rest, almost throughout the week. This state of affairs left them without time to play, relax, and interact with others, still less to do schoolwork. However, some of the findings suggest that not all of children in the sample were trafficked in the sense understood by some of the international legal instruments. Nature & extend of child trafficking in sub-region – Swaziland

20. International Programme on the Elimination of Child Labour Programme Towards the Elimination of the worst forms of Child Labour (TECL) ILO members Government; Labour; Business IPEC programme: also works with NGOs Covering 5 countries South Africa, Lesotho, Swaziland, Botswana and Namibia Main objective To assist the countries to set up informed national action programmes for the elimination of child labour (BLNS) To assist the countries to implement key actions steps identified in national action programmes for the elimination of child labour (SA) As required by the countries’ ratification of ILO C182: Elimination of the Worst Forms of Child Labour ILO Programme in sub-region

21. The Child Labour Programme of Action National effort by government, organised business,organised labour and civil society to address child labour It includes strategies to work towards the elimination of worst forms of child labour, including Child Trafficking Departments of Home Affairs, Foreign Affairs and Social Development The CLPA has been updated in 2007 from its initial version in 2003 – now called the CLPA-2, and will run 2008-2012 See the child trafficking steps at www.child-labour.org.za TECL activities against child trafficking in South Africa: CLPA (1)

22. On-the-ground pilot projects in Gauteng Addresses commercial sexual exploitation of children and child trafficking Collaborate with already existing organisation: 6 pilot programme Hillbrow, Pretoria, Winterveldt Focus on prevention. Activities incl.: Development of awareness raising material to children at risk Training of peer educators and outreach work Bridging / remedial teaching Focus on withdrawal. Activities incl.: Establishment of 24h crisis centre (the 1st in Jhb!) Support to shelters Support to outreach activities Focus on educational rehabilitation. Activities incl.: Development of life skills material Compiling education and health profile on CSEC/CT children Compiling directory of education / skills development opportunities available to CSEC/CT children in reality (what has proved to work, where?) Assistance to access formal and informal education Focus on mainstreaming Feed lessons learnt and successful methods into relevant government structures, and fill gaps to improve circumstances of these children TECL activities against child trafficking in South Africa: Pilots (2)

23. Research: (get a clearer picture of nature and extent) Situation analysis, policy and literature review on CSEC & CT – finalised Very few grassroots organisations specialising in these two worst forms of child labour No national policies (other than Child Labour Programme of Action) Falls between the mandate of many government departments Often confusion re where responsibility lie Gaps in handovers of children Exact extent not known – little reliable data due to the mostly hidden nature More research (snapshots) under preparation Educational profile of children benefiting from the programme Qualitative research on these two worst forms of child labour at key sites TECL activities against child trafficking in South Africa: Research (3)

24. Assistance with legislation dealing with child trafficking One of the most comprehensive attempts to assess responses by governments to the problem of trafficking is the annual TIP Report of the US State Department. The 7th annual TIP report was released on 12 June 2007. South Africa is on the Tier 2 Watch List for its failure to show increasing efforts to address trafficking over the last year Ironic, as the Children’s Act 38 of 2005 has been passed, albeit not promulgated. The lack of specific anti-trafficking statutes and explicit penalties for trafficking crimes continued to hamper law enforcement efforts To enhance its ability to combat trafficking, the government should fully implement the provisions of the Children's Act against child trafficking as it specifically criminalises child trafficking raise awareness among government officials as to their responsibilities under these provisions; develop procedures for victim protection, incl the screening of undocumented immigrants for signs of victimisation before deportation; ensure the Human Trafficking Inter-Sectoral Task Team is granted the authority to play its coordination role; government should compile national statistics on trafficking cases prosecuted and victims assisted, as it does for other crimes. TECL activities against child trafficking in South Africa: Legislation (4)

25. Proposed amendments Section 110: Reporting a child in need of care and protection 110. (1) Any … or volunteer worker … who on reasonable grounds concludes that a child has been abused in a manner causing physical injury, sexually abused or deliberately neglected or involving exploitation, if it is in the best interest of the child concerned, must report that conclusion to … Section 305 305. (1) A person is guilty of an offence if that person— (a) commits an act in contravention of the prohibition set out in section 12(2), (3), (4), (6), (7), or (8), or section 141(1); TECL activities against child trafficking in South Africa: Legislation (4)

26. Section 141: Exploitative child labour – new to align with C138 and C182 & seriousness of crime 141. (1) No person may— (a) use, procure or offer a child, or attempt to do so, for slavery or practices similar to slavery including but not limited to debt bondage, servitude and serfdom, and forced or compulsory labour or provision of services; (b) use, procure, or offer a child, or attempt to do so, for purposes of commercial sexual exploitation; (c) use, procure or offer a child, or attempt to do so, for the commission of any offence listed in Schedule 1 or Schedule 2 of the Criminal Procedure Act, 1977; (d) require or permit a child to engage for that person’s benefit in begging or scavenging or collecting waste from waste dumps or garbage. (2) A court may convict a person who contravenes section 141(1)(c) of both – (a) an offence in terms of section 141(1)(c); and (b) if that person also commits the offence that they used, procured or offered a child to commit, or attempted to do so, that offence. (3) If a person is convicted of a offence in terms of sub-section 1 read with section 305(1)(b) the court on convicting that person and determining a sentence must consider as a factor in aggravation of sentence – (a) that South Africa has ratified the International Labour Organisation’s Worst Forms of Child Labour Convention, 1999; (b) that the offence constitutes a worst form of child labour in terms of that Convention. (4) A social worker or social service professional who becomes aware of instances of child labour or contraventions of the provisions of the Basic Conditions of Employment Act, 1997 must report it to the Department of Labour, in the manner as will be prescribed. TECL activities against child trafficking in South Africa: Legislation Cont (5)

27. Amendments required regarding the s 75 Act - Definitions Definition: ‘abuse’ … (d) child labour that involves the exploitation of a child [a labour practice that exploits a child]; or … Definition: 'exploitation’ … (a) any activity prohibited in terms of section 141(1); and (b) the removal or attempted removal of body parts TECL activities against child trafficking in South Africa: Legislation Cont (6)

28. Purpose To pilot action regarding asset forfeiture as an intervention to discourage worst forms of child labour, including child trafficking; Taking action against perpetrators benefiting from proceeds derived from criminal activities Two legged process Civil proceeding: seizing of assets derived from criminal activities Criminal proceedings: prosecuting of perpetrator Prosecutor to proof the instrumentality of the asset to the illegal activity Overall Objectives Run pilot project together with the Asset Forfeiture Unit of the NPA aimed at seizing of assets related to cases of worst forms of child labour Put in place tools & programmes to facilitate future asset forfeiture activities in the context of WFCL Elements To identify potential cases regarding WFCL incl CT where asset forfeiture could be an appropriate intervention To advise on what measures should be put in place to protect those involved incl the children and to involve other players as needed to facilitate protection of such children Once potential cases are identified assist with the draw up an initial dossier and to facilitate action to be taken to seize assets in appropriate cases To assist the AFU in the preparation of asset forfeiture proceedings as appropriate, in particular, to provide expert evidence relating to the prevalence of the particular type of WFCL In general, to raise awareness within the justice sector on worst forms of child labour, including child trafficking and the need to consider asset forfeiture measures To draw up guidelines to be used for future cases of potential asset forfeiture TECL activities against child trafficking in South Africa: Asset Forfeiture (7)

29. Role of Government The absence of a specific law on child trafficking is a serious loophole that undermines the global effort to stop child trafficking. Often not clear which government department to approach: Protocolsare needed and must be enforced All children to be treated equally – including immigrant and refugee children: departments must take responsibility for these children ito monitoring and facilitate assistance required such as issuing of required documentation to enable access to schools, grants etc. Organisations assisting these children are Swamped with children in dire need More shelter beds must be secured Financially struggling – difficult to access state funding Sufficient & continued funding must be secured Insufficient human resources – high turnover in staff/volunteers, each child is very time consuming Struggling to get documents for children – no identity book / birth certificate no grant, no access to school Struggling to get children into school Real access to education & skills training must be secured Lessons learnt so far & action required (1)

30. Greater community awareness Of worst forms of child labour, including child trafficking is needed Ubuntu is still alive! What can you do? Applauded the progress made by South Africa in developing legislation against child trafficking but urged to move with speed to put such laws into effect! To promote the need for legislative and judicial intervention! Lessons learnt so far & action required (2)

31. Research on trafficking of children: Botswana, Namibia and Swaziland completed Will be used to inform a 5-country report on child trafficking – end Oct 07 Policy CT is not an offence in the BLNS countries National Action Programme on the Elimination of Child labour being drafted in Botswana, Lesotho, Namibia and Swaziland All will address the issue of child trafficking TECL child trafficking activities in BLNS countries

32. To assist other UN agencies in addressing issues regarding trafficking in children Regional agreements / protocols / instruments: drafting or ensuring that current drafts are aligned with the countries’ efforts to eliminate child trafficking Training for SARPCCO countries: UNODC handbook on trafficking to be used for training prosecutors, immigration officials and social workers in SA: IOM Support to regional forums Participates in sub-regional conferences such as Africa Regional Conference: IAWJ TECL action on child trafficking on regionlevel

33. C182 read with other international laws and protocols highlights the difference between child trafficking and adult trafficking Nature of vulnerabilities exposed to requiring specific action and support to children Provides broader category of exploitation to be considered Labour exploitation – incl worst forms of child labour Legislative reform Need to push to get legislation in place / implemented as priority if in place Need to consider international laws / protocols etc Can also be used as an interim measure with constitutions in place! Summary

34. THANK YOU Questions & Answers For more info: tecl@tecl.org.za / (012) 431-8827/9 Mr Dawie Bosch: Chief Technical Advisor Ms Elna Hirschfeld: Programme Coordinator