JOINT SUBMISSION ON THE CHILDREN’S BILL
We welcome the opportunity afforded to ourselves to make this submission into one of the most important pieces of legislation dealing with regulations and proceedings concerning the rights, welfare, protection and care, including children’s participation in the Children’s Bill.
We note that this draft legislation will become one of the most important pieces of legislation addressing the needs of children in South Africa and elsewhere.
We see this Act as material in protecting the constitutional and universal rights of children, including Section 28 of the Bill of Rights. In accordance with these provisions a child is a person under the age of 18 years and has the right to:
Whilst we are concerned with all rights pertaining to children, for the purposes of this submission we wish to focus on the issue of Trafficking and the protection of all trafficked children.
Trafficking of persons, including children is a problem which pre-dates the modern era. In Africa trafficking of persons, dates back to the slave trade which involved abduction and transportation of people across the Atlantic Ocean to the Americas during the slave trade from the 1440s onward. In the Cape Colony of the seventeenth century the slave trade resulted in the Dutch "importing" people from Indonesia and Java among other places. The Western Cape then has a history in trafficking of persons which dates back 350 years.
Trafficking in persons however does not only occur in Africa and is not only a transnational phenomenon. People are trafficked across and within national borders into various sectors of domestic economies. They are trafficked into domestic service, to work in factories and sweatshops, into the agricultural sector and into sex industries. They are also trafficked as beggars and street vendors and are trafficked to engage in illegal activities such as drug running and housebreaking. They are also trafficked for their organs. In addition they are trafficked as mail-order brides and for purposes of cross-border adoption.
This trafficking can be highly organised as evidenced by the sophisticated networks of both local in-country and transnational syndicates or it can be facilitated by individuals.
"A large portion of trafficking in South Africa occurs from rural to urban areas, urban to semi-rural areas, within communities, such as when children are trafficked into gangs. The violations and harm suffered by in-country victims are no less than that suffered by cross border victims."
Molo Songololo’s research findings further illustrate how the socio economic situation in South Africa impacts on the vulnerability of children. These findings reflect high unemployment and school drop out rates, lack of effective social welfare support for children and families, lack of effective safety and protection services for children, changing patterns in parenting and high levels of domestic violence. Though we do not have accurate statistics, we are aware that the trafficking of children is on the increase and is becoming increasingly visible.
Not only are children trafficked for the purposes of prostitution but they are also used to perform cheap labour. In terms of the 1998 South African Child Labour Action Programme which is based on ILO recommendations child labour is defined as "work by children under 18 which are exploitative, hazardous or otherwise inappropriate for their age, detrimental to their schooling, or social, physical, mental, spiritual or moral development." The term work is not limited to work for gain but includes chores or household activities in the household of the child’s caregiver, where such work falls within the definition of child labour.
According to a survey done by the International Labour organisation, they have estimated that there are 13.4 million children of which 3 378 000 children are engaged in economic activity in South Africa. Children are therefore trafficked both in and out of South Africa for the purposes of sexual exploitation and labour. In addition, children are trafficked as child brides.
Further reports suggest that children are trafficking into domestic labour and kept in slave-like condition in people’s homes in the suburbs. They are also trafficking for their organs or body parts, other are trafficking into early forced marriage or into gangs for illegal activities such as drug running, theft, or even begging.
It is clear that trafficking occurs for various reasons, both across the borders but also within a country across rural and urban areas. Children should be at school, playing and having time for recreation and yet this sad picture as depicted before prevails, children continue being exploited sexually and forced into exploitative labour practices. As the problem intensifies, we still do not have specific legislation, which criminalises trafficking of children.
2. Proposed changes to the Children’s Bill:
We are of the view that the trafficking of persons, including children is a criminal action and should in fact be dealt with in one piece of legislation. In February 2004, The South African government ratified the United Nations Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children; Supplementing the United Nations Convention against Transnational Organised Crime, also referred to as the Palermo Protocol.
The Protocol obligates the government to enact legislation to combat the trafficking of persons to ensure support, protection, repatriation, healing and empowerment of victims of trafficking; and bring sanctions against traffickers.
As such a piece of legislation does not currently exist, we propose the following changes to the Children’s Bill in respect of trafficking:
The Protocol identifies trafficking of persons as a crime and addresses the problem of definition that has frustrated law enforcement and justice officials world-wide. It also ensures some recourse for victims.
In terms of Article 3 of the Palermo Protocol Trafficking of persons means the: Recruitment, Transportation, Transfer, Harbouring or Receipt
By Means of: The threat or use of force or other forms of coercion, Abduction, Fraud, Deception, Abuse of power or of a position of vulnerability, and The giving or receiving of payment or benefits
TO ACHIEVE: The consent of a person having control of another person for the purpose of exploitation
EXPLOITATION SHALL INCLUDE AT A MINIMUM
The Protocol recognises that trafficking can take place with a victim’s consent but this is irrelevant where any of the means set out (in the definition) have been used.
The recruitment, transportation, transfer, harbouring or receipt of a child for the purpose of exploitation shall be regarded as "trafficking in persons" even if none of the means outlined in the definition have been used.
We are pleased that the Children’s Bill makes specific provisions for the trafficking of children to give effect to the UN Protocol to Prevent Trafficking in Persons, bilateral and multilateral agreements regulate trafficking of children; and provide assistance to children who are victims of trafficking.
Chapter 19: Trafficking of Children –
We are uncertain as to whether or not the bilateral or multilateral agreements have in fact been entered into between countries. In the event that such agreements have not been finalised, we are of the opinion that such agreements should be entered into and agreed upon as a matter of urgency to ensure that the rights of children are protected and their safety is ensured. To address this eventuality, we submit that the following should be inserted between subsections (a) and (b) of Section 282:
Trafficking of children prohibited:
Children can be trafficked for a number of purposes, we therefore recommend that the following to be added to subsection (1):
f. for purposes of adoption (both in-country or cross border)
We recommend that all of the above replace the current list in subsection 1 of Section 283, as this list would include all eventualities.
We recommend that in addition to parent or caregiver, that guardian be included. Trafficking is often undertaken by a variety of persons, including parents, relatives, teachers, and so on.
We therefore recommend that the section reads as follows:
Subsection 3: If a court finds that the parent, care-giver or guardian of a child or any other person who has parental rights in respect of a child, has trafficked the child, the court may –
We have furthermore observed that the Act is silent on the issue of holistic healing to address the trauma experienced by a child who has been trafficked, it is for this reason that we recommend that the following clause be inserted after subsection (b):
(c) Any child who has been trafficked must receive specialised care, including:
-Medical examinations and treatment
-Counseling (psycho – social)
- Healing and care
- Reintegration into family (if possible) and society
- Restorative justice (assets of perpetrators to be confiscated and sold, all monies to be used to assist victims of trafficking)
Children who have been trafficked would have their schooling interrupted and upon being reintegrated into society face many challenges in terms of not possessing the necessary education and skills to obtain meaningful employment. It is for this reason that we recommend that the following clause be inserted after our previous recommendation (subsection c):
Current legislation offers very little protection and assistance for victims of in country trafficking. Our experience indicates that it is extremely difficult to access appropriate existing support services; for victims of trafficking.
Sub Section 284
All trafficked children are undoubtedly children "in need", and therefor need to be protected and provided for accordingly, premised on the understanding that all children in need have access to protection and services.
A situation where a found child is submitted to sexual exploitation and through activities related to trafficking would certainly indicate that this child is "a child in need of care". This means, that a child in these circumstances should be able, with the assistance of the Children’s Court, to apply for Refugee Status. Especially, since it is in the child’s best interest not to be sent back into conditions, which would be likely, allow for trafficking for purpose of sexual exploitation all over again.
It is evident that incidences of trafficking are on the increase in South Africa and is becoming more visible both in South Africa and abroad. We however believe that the issue of trafficking needs to be addressed in a specific piece of legislation that will serve to criminalise the act of trafficking of persons
As the Children’s Bill seeks to comprehensively protect children in South Africa, there is also the need to protect child victims of trafficking. We need to ensure that adequate policies are formulated and sufficient resources availed to manage the problem and its manifestations.
We hope that our recommendations are given due consideration and incorporated into the Children’s Bill to address the needs child victims of trafficking and protect their rights.
We further request to make an oral submission at the public hearings scheduled for 11th to 13th August 2004.
Molo Songololo’s research reports on the Trafficking of Women into the South African Sex Industry and the Trafficking of Children for Purposes of Sexual Exploitation in 2000 highlight the need to criminalise trafficking of persons and bring sanctions against traffickers and the lack of support services and empowerment opportunities for victims of trafficking.
The organization’s work with victims of child trafficking, in particular related to child prostitution; and that of the Cape Town Refugee Forum and Rape Crisis further informs the oral presentation.
The oral presentation will highlight the following: