Victim Oriented Measures under Ethiopian Anti-Human trafficking Law

“Violations of human rights are both a cause and a consequence of trafficking in persons.”

                                      UN human rights office of the High Commissioner, fact sheet 36

 Introduction

Traditionally, People in Ethiopia feel that living abroad is life changing and take it as a privilege. In country sides there is customarily mainstreamed saying that “እልፍ ቢሉ፤እልፍ ይገኛል/ Eliff bilu elf yignagal” meaning that if somebody changes a living place she or he will get a decent life counted in thousands. That’s why many peoples in Ethiopia left their home and searching jobs abroad via illegal means and fall in the hands of satanic and barbaric traffickers in turn witnessed dozens of sufferings.

To begin with, trafficking in persons, especially women and children, is increasingly becoming an issue of global concern. It is evident that the fons et origo of human trafficking problem at the international arena at least dates back to the Paris conference on trafficking in women held in 1895.

Subsequently it was followed by the Convention against ‘white slavery’ (1904), the League of Nations International Convention for the Suppression of White Slave Traffic (1910), the International Convention for the Suppression of Traffic in Women and Children (1921) and the UN Convention for the Suppression of Traffic in Persons and the Exploitation of the Prostitution of Others (1949).

Coming to our country Girls from Ethiopia’s rural areas are forced into domestic servitude and, less frequently, commercial sexual exploitation, while boys are subjected to forced labor in traditional weaving, mining, agriculture, herding, and street vending. Dozens of Ethiopian girls are forced into domestic servitude outside Ethiopia, primarily in Djibouti and Sudan, while Ethiopian boys are subjected to forced labor in Djibouti as shop assistants and errand boys.

Most importantly, the researcher of the opinion that the elixir for the above challenging situation might be adopting human right based approach. All people working with trafficked persons need to be concerned with the basic rights of victims of trafficking. It is vital to shift the working paradigm from one of criminal sanction to human rights promotion.

This paper was basically conducted to assess the legal and institutional frame work that governs human trafficking in Ethiopia’s in particular focusing on victim oriented measures. Doctrinal method of legal research is a principal method employed in the furtherance of the paper. Thus, the major findings of this paper revealed and echoed that victim oriented measures should be revisited and reconsidered along with adopting human rights based approach.

Finally, this paper will look at issues related with notions, the contents of Proclamation No.909/2015, and institutional commitment towards counter trafficking.

1.      Conceptual Understanding’s

Human trafficking can be occurred at international or local levels. As far as the conceptual understanding of human trafficking is concerned, the nuts and bolts of human trafficking is closely associated with exploitation. The Palermo Protocol (2003) in this regard had a paramount importance since the protocol is the first global legally binding instrument in over half a century and the only one with an agreed definition of trafficking in persons. The Protocol under Article 3 reiterates as follows;

“(a) “Trafficking in persons” shall mean the recruitment, transportation, transfer, harboring 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 purpose of exploitation. Exploitation shall include, at a minimum, the exploitation of the prostitution of others or other forms of sexual exploitation, forced labor or services, slavery or practices similar to slavery, servitude or the removal of organs;

When we delve in to the merits of the above definition, the legal understanding of human trafficking can be summarized as:

Firstly, trafficking affects women, men and children, and involves a range of exploitative practices. Trafficking was traditionally associated with the movement of women and girls into sexual exploitation. The international legal definition set out above makes clear that men and women, boys and girls can all be trafficked and that the range of potentially exploitative practices linked to trafficking is very wide.

Secondly, Trafficking does not require the crossing of an international border. The definition covers internal as well as cross-border trafficking. That is, it is legally possible for trafficking to take place within a single country, including the victim’s own. Actually this feature is reaffirmed under Ethiopian Anti-Human trafficking proclamation(Prevention and suppression of Trafficking in Persons and Smuggling of Migrants Proclamation No.909/2015 here in after ‘the proclamation’) that human trafficking can be occurred either in the territory or outside Ethiopia under Article  2(1) of the proclamation.

Thirdly, Trafficking is not the same as migrant smuggling. Migrant smuggling involves the illegal, facilitated movement across an international border for profit.

While it may involve deception and/or abusive treatment, the purpose of migrant smuggling is to profit from the movement, not the eventual exploitation as in the case of trafficking. here again the Ethiopian Human Trafficking proclamation made it clear by saying human trafficking and migrant smuggling are different as stipulated under Arts 2(1), 3,4 and Arts 2(8), 5 respectively.

Finally Basu laminated that [H]uman trafficking or modern slavery, is the international and domestic transaction of human beings solely for the purpose of their exploitation. (Stapua Basu: 1)

2.      Anti-Human Trafficking Proclamation No.909/2015

Trafficking in persons as it was mentioned in preceding sections has overwhelming effect on economic, social even individual level. Thus, in order to comeback such kind of hazards Ethiopia took legislative measures since its inception via penal code of the 1957 under articles 565 and 605 in general as well as by enacting separate proclamation no.909/2015. Article 48 of the proclamation clearly repeals Art.243, 596, 597, 598, 599 and 635 of the Criminal Code of the Federal Democratic Republic of Ethiopia.

 At this junction, it is worthy to reiterate rationales behind for the enactment of this proclamation. These are:

Firstly, [T]o introduce a preventive strategy by designing the legal system as a viable alternative in addition to economic and social efforts undertaken to alleviate the problems related to human trafficking especially women and children’s trafficking…” (The proclamation, Preamble Par.I)

Secondly, realizing that an appropriate protection, support and rehabilitation to the victims are important and provision of special protection, care and assistance to the most vulnerable groups of society with due consideration to their age, gender and special needs is indispensable. (ibid: Par II)

Thirdly, to enact a detailed law since the criminal code and others laws are not adequately tuned with the depth of the problem and it has necessary to…[sic] pass proportional sentence against criminals. (ibid: Par III)

Finally, to promulgate a law consistent with international conventions and protocols to which Ethiopia is signatory. (ibid: Par IV) 

This Proclamation is an important step towards legislating comprehensive law that prohibits human trafficking. The proclamation underlines human trafficking as follows:

 Article   3 Trafficking in Persons

1)     Any person, for the purpose of exploitation, within the territory or outside of Ethiopia:

a)      at the pretext of domestic or overseas employment or sending to abroad for work or apprenticeship;

b)     by concluding adoption agreement or at the pretext of adoption or

c)      for any other purpose

using threat or force or other means of coercion, abduction, fraud, deception, promise, abuse of power or by using vulnerability of a person or recruits, transports, transfer harbors or receives any person by giving or receiving of payments or benefits to achieve the consent of a person having control over another person shall be punishable with rigorous imprisonment from 15 years to 25 years and with fine from 150,000 to 300,000 birr.

The proclamation departed from the FDRE criminal code in terms of scope and elements of the crime on trafficking in persons. For instance, the proclamation vehemently introduced means of exploitation in a broad way meaning that it widens the purpose of human trafficking from traditional method i.e. for purpose of forced labor in to multiple forms of exploitation. For example: - benefiting from the prostitution of others or other forms of exploitation, slavery or practices similar to slavery, sexual servitude and enslavement, debt bondage or surrender as pledge for another, removal or taking of organs of the human body, forcefully engaging for begging and engaging children for military service.

Most importantly, the proclamation in terms of scope of human trafficking is very wide too. First the public prosecutor will face difficulty in proving the “purpose of exploitation”/ “ ዐቃቢ ህግ ለብዝበዛ ዓለማ መሆኑን እንዴት ሊያስረዳ ይችላል?”

Second the definitions also jeopardize principles of criminal law in a sense that it did not make any distinction between principal and secondary participants.

By the same vein, the proclamation as usual prohibits and also punishes complicity to trafficking and assisting or facilitating trafficking in persons on equal footing with normal cases. (ibid: Arts 4).

Where the trafficking of persons is occurred in organized manner or at large scale the punishment will be grave even up to life imprisonment or death. (ibid: Arts 6)

Interestingly, The Ethiopian Federal Ministry of Foreign Affairs and Ministry of Labor and Social Affairs with joint press conference suspended the former proclamation no.632/2009 and prohibits sending workforce and employees either through agency or direct employment in Near and middle east countries until comprehensive law  be functional.

Finally, The Ethiopian parliament very recently passed a law dealing with Ethiopia’s oversea employment Proclamation No.923/2016. When we delve in to the particulars of the law it is vivid that proclamation among other things aimed at bilateral agreements with receiving countries may strengthen lawful overseas employment and could prevent human trafficking. (ibid: Par.II).The proclamation did not trace the term human trafficking however it prohibits sending employees without license and its contravention will led to  imposition of administrative measures. (ibid: Arts 47)

3.      The institutional framework

There is no centralized monitoring organ or state department dealing with and handling the   scenario. Verily, the proclamation that defines the Powers and Duties of the Executive Organ of the Federal Democratic Republic of Ethiopia proclamation no.916/2016   did not address and assign human trafficking issue specifically to any government agency save as the provision that allows Ministry of Labor and Social Affairs in cooperation with concerned bodies regulate the Ethiopian Overseas employment. (Proc.No.916/2016, Arts 34(10)

 However, the Anti- Human trafficking proclamation calls for stakeholder’s cooperation under article 39(1) of the same.

A national committee, for better coordination of activities designed for victims protection, assistance and rehabilitation, for advising in policy, plans and implementation framework formulations process, to accommodate the interest of victims and for combating the crime of human trafficking and smuggling of migrants; provide with, its basic role to introduce the social impact of the crime and its adverse effect on country’s image into the educational curriculum and to maintain the interest of various social segments and structures shall be established.

Further the proclamation vividly provides the national committee will be led by the Deputy Prime Minister, and incorporates Ministry of Justice, Ministry of Foreign Affairs, Ministry of Federal Affairs, Ministry of Labor and Social Affairs, Ministry of Women, Children and Youth Affairs, Ministry of Education, Regional States, other governmental organizations, religious institutions, charities and societies, various structures and other respective organizations. (ibid; Arts 39(2)).Finally, the researcher is with opinion that establishing committees in ad-hoc basis will not bring any tangible change to overcome the problem at grass-root level.

4.      Victim oriented Measures

The researcher under this section will discusses those measures which will be taken at best interest of victims of trafficking. From general human right based approach to plethora rehabilitation measures will be pinpointed under this section.

             4.1 Human right based approach

According to United Nation Human Rights Office of High Commissioner(UNHROHC) fact sheet 36, the nexus between human trafficking and human rights is interdependent and the same recommendation reiterates as follows: [T]he links between human rights and the fight against trafficking are well established…[sic] Human rights law has prohibited discrimination on the basis of race and sex; it has demanded equal or at least certain key rights for non-citizens; it has decried and outlawed arbitrary detention, forced labor, debt bondage, forced marriage, and the sexual exploitation of children and women; and it has championed freedom of movement and the right to leave and return to one’s own country.”

While the link between human rights and human trafficking is vivid, it does not necessarily follow that human rights will naturally be at the center of responses to trafficking. For example, cross-border trafficking can be dealt with as an immigration issue, with human rights being addressed only as an afterthought. It is also possible for States to address trafficking primarily as a matter of crime or public order. To put differently, human rights-based approach is a conceptual framework for dealing with a phenomenon such as trafficking that is normatively based on international human rights standards and that is operationally directed to promoting and protecting human rights. Therefore, the researcher argues while adopting human rights based approach much emphasis should be given to the rights of victims of trafficking.

            4.2 Victim Assistance programs

Above all, over the past decade there has been great progress in clarifying the rights of victims of trafficking to protection and support and the corresponding obligations of States. While there are still some areas that remain to be settled, there is a general agreement around several core obligations, all based on a general duty to identify victims of trafficking in the first place. Some of these obligations are: providing immediate protection and support; providing legal assistance, including temporary residency, and not criminalizing the victims.

Measures to assist victims in their physical, psychological and social recovery, taking account of the victim’s safety and protection needs, in cooperation with NGOs and other organizations engaged in assistance to victims.

This assistance must be provided on a consensual and informed basis, taking account of the special needs of persons in a vulnerable position, as well as children, and it must not be made conditional on the victim’s willingness to act as a witness.

When we come back to the Ethiopian scenario the human trafficking proclamation in black and white stipulates the following: -                       

                Article  26. Identification and Rescue of Victims

1/ The Government shall put in place necessary working procedures to identify, rescue, repatriate and [sic] victims in partnership with other foreign diplomatic missions, concerned government and non-government organizations and other supportive mass organization, the details of which shall be specified by law.

In doing so the researcher observed that our legal system in general and the proclamation in particular lacks with emergency centers, transit centers, short term and long term shelters as well after repatriation of victims is done.

The proclamation vehemently urged organs responsible to investigate, prosecute, adjudicate criminal cases stipulated under this Proclamation shall, taking into account the condition, refer the victim to appropriate organizations and institutions for assistance and support.(ibid: Arts 26(3)). The researcher observed the enigma that who will shoulder such task casts serious doubt because the proclamation did not specifically assign such tasks for anybody.

            4.3 Rehabilitation Measures

Rehabilitation programs and strategies targeting individuals recovering from violence and exploitation within the sex trade and human trafficking require multifaceted approaches involving a variety of actors. Recovery efforts must simultaneously address the physical, psychological, behavioral, social, and economic issues encountered by these individuals. Moreover, successful recovery must include service coordination by governments, international organizations, NGOs, local agencies, surrounding communities, and families. (Crawford, M.  and Kaufman, M. :2008:905-916).

By similar vein, Critical factors in rehabilitation, recovery, and reintegration include the individuals’ age; physical and psychological health; background; family life; culture; duration of their exploitation; and their perceptions of the damage done to their person and their future as a result of having been trafficked, especially if they have been victims of commercial sexual exploitation.

At the heart of rehabilitation, the researcher identified education, economic opportunities, psycho-social support and reintegration are pillars in rehabilitation measures to be provided for victims of trafficking.

Finally, when we come across to the proclamation it unequivocally proclaims that “the Government shall put in place necessary working procedures to [sic], rescue and repatriate victims in partnership with other foreign diplomatic missions, concerned government and non-government organizations and other supportive mass organization, the details of which shall be specified by law.” Albeit the manner and amount of rehabilitative measure, who fulfill them to victims? , when it is to be claimed? And so else questions remain intact and bewildering. In other words, the proclamation did not specifically address rehabilitative issues even to the worse still there is no detail regulation dealing with the matter.

            4.4 Compensation and Fund Establishment

The victims of trafficking will be entitled compensation which enables them to be rehabilitated and recovered from such syndrome. According to the Palermo Protocol each State Party shall ensure that its domestic legal system contains measures that offer victims of trafficking in persons the possibility of obtaining compensation for damage suffered. (The Protocol: Arts 6(6)).

When we delve in to the proclamation it introduced a compensation scheme to be collected from the perpetrator who is convicted of committing crime. (The proclamation: Arts 31).

Again the researcher observed that the proclamation in principle allows compensation will be paid to the victim by the convicted person which is in turn creates problem of execution and to the paradox governmental fund becomes secondary.

To wrap up, I personally opined that the fund established by the government should be given primacy in lieu of money collected from the convicted person. (ibid: Arts 32 et seq).  

5. Unveiling the Veil: Turmoil or Calm?

In spite of detail empirical research is required, the researcher from the above legal analysis underscored that the human trafficking trend in Ethiopia seems in turmoil because firstly the scope of the definition of human trafficking is vague and secondly the victim oriented measures are at dearth level too however the recent move both from governmental endeavor’s (Interview with diaspora participation expert at Ministry of Foreign Affairs) and NGO’s seems encouraging.

Most importantly, the human trafficking problem is clearly identified by government through the instrumentality of enacting a separate and comprehensive legislative measure. Albeit, the panacea formulated by government was futile since for one thing the proclamation is not yet supplemented by enabling legislation as to rehabilitative measures as well as separate governmental body dealing with the issue.

6.      Concluding remarks and the way ahead

To conclude, human trafficking is the trade of humans for the purpose of sexual slavery, forced labor or commercial exploitation for the trafficker or others. Trafficking affects all regions and most countries of the world. Trafficking in persons, especially women and children, is increasingly becoming an issue of global concern. The international recognition of the problem at least dates back to the Paris conference on trafficking in women held in 1895.

Human trafficking can exit in various forms and degrees despite disparity on classification. To tackle the problem Ethiopia so far enacted Anti-human trafficking Proclamation No 909/2015 along with Employment Overseas Proclamation No.923/2016.      

Finally, the researcher suggests the following recommendation as a way forward and lessons for Ethiopia as follows: -Firstly, as to rehabilitative measures, there should be detail law governing the manner and amount of rehabilitative measures to be provided for victims. Secondly, the scope of the definition of the term human trafficking under proclamation No.909/2015 Article 3 should be revisited. Thirdly, human right based approach should be alpha and omega to assist victims and lastly there should be separate Federal and state governmental body or agency dealing with human trafficking in order to solve the problem at grassroots level too.