The challenges Kenya faces in prosecuting human trafficking cases

On October 1, police rescued 12 women and a child who were being trafficked from Ethiopia. None of them could communicate in English or Kiswahili.

Officers from the Transnational Organised Crime (TOCU) immediately went to court and asked for orders to hold them in police custody.

Reason? The police wanted to be given more time to track down their traffickers.

Instead of finding a sanctuary, the women found themselves undergoing further trauma at the hands of their “rescuers.”

While such persons are not supposed to be held in a police stations, Kenya lacks safe houses for them.

When the court received the request to hold the victims, the magistrate declined it and said she could only grant the officers more time if they indicated a specific place where the 13 were going to be held as the police continued with their investigations.

During a conference last October by an international alliance of leaders in law enforcement and the church from around the world working together with civil society to counter human trafficking, lack of shelter was cited as the main challenge in prosecuting human trafficking cases.

The church, law enforcement agencies, regional and international actors as well as lobbies that work in the area of migration and control of human movement came together on October 1 to October 4 to reflect on their roles in addressing issues of human trafficking in Africa.

While the Government is seeking to either have churches or county governments to step in or help provide safe houses, victims of human trafficking remain in police cells contrary to the law.

According to Lilian Okembo, an officer from the Transnational Organised Crime Unit, at least for children there is the child protection unit while anti-human trafficking lobbies such as HAART Kenya, Trace Kenya and Love Justice International, among others, help in sheltering some but not all the women.

While explaining the predicament police officers face whenever they rescue these people, she points out that it is more difficult to find a safe place to keep men other than police cells despite government's concerted efforts in curbing human trafficking.

She says lobbies only offer to shelter women since the easily fall prey to sexual harassment.

The Victims Protection Act was assented to by Kenya’s President in September, 2014 and was seen as one of the ways in which the rights of victims as well as accused persons could be protected during prosecution of their cases.

This Act stipulates various means in which victims in criminal cases cope, for instance through restorative justice, restitution, rehabilitation, psychological treatment and protection from victimisation, among others.

But it still remains unclear whether human trafficking victims benefit from this law which was aimed at giving such people support services, protection measures and compensation.

Critics have dismissed it as a law meant to delay prosecution of criminal matters in court because previously, victims in criminal cases could only watch silently as their cases proceeded in court and only had to testify. But now they are at liberty to raise any other concern as the trial continues.

According to data from the TOCU on prosecution of human trafficking cases, 610 victims who have been rescued so far since 2017.

The data reveals that the majority of those rescued are foreign nationals who were on transit to other countries, especially in the Middle East through Kenya.

Ms Okembo says a good number of them have however been repatriated to their homelands. Others are still waiting for the process to be completed, which sometimes takes time as it involves talks with those who are to receive the victims and whether the victims themselves want to go back home.

Those repatriated include Ethiopians, Burundians, Indians and Tanzanians, among others. In 2017, a total of 220 victims were rescued, 137 in 2018 and 253 in 2019 so far.

The data also indicates that there are at least 40 ongoing pending cases of human trafficking and over 50 traffickers arrested.

Kenya is a source, a transit as well as a destination country for human trafficking. While most victims of cross border trafficking in Kenya are often from Ethiopia, Rwanda, Burundi, Somalia, Tanzania and Uganda, often, it is common for Indians, Nepalese and Pakistan nationals to leave their homelands and jet into the country in search of better pay in Nairobi and Mombasa as Mujra dancers.

This is a kind of Bollywood- style cross between art and exotic dance mostly done by females who have been convinced by their traffickers to leave their countries in search and hope for better living standards. Their traffickers pay for their tourist visas, accommodation and air travel.

Revellers may tip the dancers during the entertainment sessions, and if one is attracted to any of the women, he may pay for a private session with her. At times they are forced to pay off debt by dancing and through forced prostitution.

A 2018 report by the International Organisation for Migration (IOM) Kenya office, on the assessment of human trafficking in the coastal region of Kenya noted that Kenyans too are increasingly migrating to the Middle East besides being trafficked locally.

They travel to countries such as Lebanon, Kuwait, Qatar, Saudi Arabia and the United Arab Emirates (UAE) in search of employment, often through legal or illegal employment agencies, and they are sometimes exploited in domestic servitude, massage parlours, brothels or forced manual labour.

According to the ministry of Labour, another challenge in the prosecution of human trafficking cases is the fact that the crime is well organised owing to digital technology advancement as well as the internet. “You realise that human trafficking is a cartel that is very well organised, has regular changing trends as well as tactics and those arrested are also not the real culprits,” said Ms Elizabeth Mbuka, an official from the ministry.

Ms Mbuka points out that most times the real culprits rarely get caught and instead their agents and victims are the ones who find themselves in the hands of law enforcers.

She also noted that lack of data with regards to human trafficking is also a major challenge and that it is not easy to tell the magnitude, impact, progress or efforts made to curb the vice.

She said each institution has been involved in getting their own data and are reluctant to share it.

The Labour ministry, the DPP’s office and several lobbies are the institutions involved in efforts to curb human trafficking but each of them have their own data.

In her view, when it comes to prosecuting human trafficking cases, emphasis has to be put on proving exploitation which she says is not usually easy.

She, however, assures that the Government has come up with a training manual for prosecutors that is yet to be implemented and that other law enforcement agencies are also to be trained on how to handle human trafficking cases.

Data from the ministry indicates that so far over 1,500 victims have been rescued and that there are at least 200 pending cases on human trafficking in Kenyan courts.

Prosecution of such cases is mostly done at the magistrates courts but appeals go to the High Court and the Court of Appeal.

Appellate court judge Roselyn Nambuye says the Government needs to step up efforts to ensure the culprits are held accountable as well as spearhead building of safe houses.

She says it does not matter whether that will be achieved through partnership or not but that it is time the Government stopped dragging its feet on the issue.

On whether prosecution of human trafficking cases is possible within the Kenyan judiciary system, the judge said magistrates and judges only handle cases according to evidence presented before them, hence urged the police as well as the State to do their bit well.

According Ms Grace Mbula from TOCU, there are talks on introducing a Bill that will see every county government build a safe house so as to help curb human trafficking locally.

But Ms Mbula challenged church institutions to also help the Government build safe houses mainly because they have masses of people as well as financial capacity.

“We need to partner with the church, the church has lots of network and it will be easier for traffickers to be tracked and brought to us,” she said.

She also pointed out that most people do not know how human trafficking is done hence called upon the church to help spread awareness against the vice to the public.

“There is a dire need for the public to know about this because they lack knowledge, you are the people with the crowds and masses so please share with them to avoid suffering,” she said.

According to HAART Kenya Chief Executive Officer Radoslaw Malinowski, despite growing knowledge on human trafficking, there is still insufficient research on the vice in East Africa.

Mr Malinowski says more investigation is needed on human trafficking and its correlation with other phenomena such as narcotics.

He, however, acknowledges that many victims are treated as criminals hence end up facing second victimisation.

He added: “Human trafficking requires specific audience and the conduct of investigation sometimes misses this. However I would say Kenya is way ahead of other countries.”

He was speaking on trends of human trafficking in East Africa.

Besides language barrier another challenge in handling such cases is the fact that victims refuse to testify in court due to threats from their traffickers and they mostly end up recanting their statements.

As a State Party to the Palermo Protocol, Kenya enacted the Counter Trafficking in Persons Act in 2010.