Human Rights Implications and the Role of the South African Human Rights Commission(*)

Trafficking in persons, the movement within, into and out of a country by persons against their will or under false pretenses for purposes of exploitative labour and selling of body parts, constitute a flagrant violation of the founding values of our new nation and has to be attended to and eradicated.

Millions of persons, including children and women are victims of this cruel and inhumane practice borne out of creed and a callous disregard of the rights of the victims, who are largely vulnerable and poor.(5) According to recent reports by the International Labour Organisation, around 12.3 million women and children were enslaved in 2005 with 2.4 million of this trafficked for the sex trade.(6) In Southern Africa, according to the International Organisation for Migration’s Southern African counter-trafficking assistance programme, trafficking is a major issue and South Africa with its sex industry and its relative wealthier status is the main destination, with about 1 000 women being trafficked from Mozambique each year for South Africa’s sex industry.(7) 100 Mozambican and Swazi children are said to be trafficked into Johannesburg every month where they are sold into “the local sex industry or transported to Europe.” (8)
Many South Africans are also victims of human trafficking into European countries as cheap labour and as mules/carriers in drug trafficking.(9)

In response to this practice, the international community through the United Nations has adopted the Protocol to Prevent, Suppress and Punish Trafficking in Persons, especially Women and Children.(10) The main provisions of this protocol entail:

• The prevention and combating of trafficking (11)
• The provision of necessary support and assistance to victims of trafficking (12)
• The criminalization of trafficking in terms of national law (13)

In addition, there are numerous international human rights instruments that deal with, or have an impact on persons trafficking. These include among others, the Optional Protocol on the Convention on the Rights of the Child on the Sale of Children, Child Prostitution and Child Pornography;(14) the Convention Against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment (CAT) and its Optional Protocol, popularly known as the OPCAT; the International Convention on the Protection of the Rights of All Migrant Workers and Members of their Families; the Convention Relating to the Status of Refugees and the Protocol Relating to the Status of Refugees, etc

These instruments and others not listed here, are part of a broader international human rights framework meant to prevent the indignity and inhumane treatment of persons brought about by trafficking.

The challenge in combating trafficking in human beings in our context entails in part, the action that the State has to take in the fulfillment of its constitutional obligations to protect and promote human rights and its human rights treaty obligations. The other challenge is the role and response of the South African Human Rights Commission in the context of its constitutional mandate and the role of other stakeholders and the public at large.

Role and Response of the South African Human Rights Commission

The Commission has a constitutional mandate to protect and promote human rights by:
• Education and raising awareness on human rights
• Monitoring and assessing the observance of human rights
• Providing appropriate relief for the violation of human rights

In view of its mandate, the Commission can make an important contribution incombating human trafficking and addressing its impact on the victims. While this has not been satisfactory done by the Commission, there is scope for more efforts and role by the Commission in this regard. The newly created posts of Coordinators for Children’s Rights and the Rights of Non-Nationals could and should provide for more focus in this area. The same applies for the post of Crime and Human Rights and Business and Human Rights the Commission has recently agreed to establish. At the internal human rights level, the creation of a new programme by the Commission on treaty monitoring will help the Commission to monitor and comment on the treaty obligations of the government in relation to all treaties that apply to the issue of human trafficking the government has ratified or acceded to.

In relation to treaty obligations on the part of the state, the Commission can and should ensure that the government does meet all its treaty obligations, especially in the context of the Protocol to Prevent, Suppress and Punish Trafficking in Persons especially Women and Children and the Optional Protocol on the Convention on the Rights of the Child on the Sale of Children, Child Prostitution and Child Pornography. One of the challenges the Commission should address immediately in this regard is the adoption of legislation that the government has to pass in terms of the provisions of the Protocol to Prevent, Suppress and Punish Trafficking in Persons, especially Women and Children.

The South African Law Reform Commission issued a discussion paper on trafficking in persons last year with 30 June 2006 as the closing date for comments.(15) The Law Reform Commission has accordingly recommended for legislation criminalizing trafficking in South Africa and measures to provide for the protection of the victims of trafficking, the provision of services to victims of trafficking and the prevention of trafficking in human beings. The SA Law Reform Commission will thereafter submit a report to the Minister of Justice and Constitutional Development including proposed draft legislation.

It is hoped that this process will not take too long. The Commission will thus have to monitor the progress made by the Law Reform Commission and ensure that the necessary legislation is tabled and adopted as soon as possible.

The other challenge for the Commission is to ensue that government does meet its reporting obligations in terms of the Optional Protocol on the Convention on the Rights of the Child on the Sale of Children, Child Prostitution and Child Pornography. Article 12 of this Protocol requires States Parties to submit a report on measures instituted by them in giving effect to their treaty obligations within two years of the ratification or accession to the Protocol and every five years thereafter or whenever they report to the treaty monitoring body-the Committee on the Rights of the Child.

Other than the legalistic interventions above, there is a need to tackle the root causes of trafficking and factors that sustain this practice. The Preamble of the Optional Protocol on the Convention on the Rights of the Child on the Sale of Children, Child Prostitution and Child Pornography is instructive in this regard and states, in part:

“Believing that the elimination of the sale of children, child prostitution and child pornography will be facilitated by adopting a holistic approach, addressing the contributing factors, including underdevelopment, poverty, economic disparities, inequitable socio-economic structure, dysfunctioning families, lack of education, urban-rural migration, gender discrimination, irresponsible adult sexual behaviour harmful traditional practices, armed conflicts and trafficking in children.”

An integrated and collaborative approach is obviously the most effective way in which the practice of human trafficking in our country and region could best be tackled. This thus requires the Commission to work with all relevant stakeholders in the public and private sector to address both the legal issues and the underlying causes of human trafficking and those factors that sustain this cruel and inhumane practice. There is also a need for regional collaborations between South Africa and our neighbouring states. The advancement of human rights in the region is certainly one of the most effective ways of dealing with this problem and we in South African cannot afford to turn a blind eye to developments in our region which contribute to the challenges of human trafficking that directly affect us in our own country, our homes and streets.

The need to raise awareness on human trafficking and its impact is an on-going challenge and the Commission would need to work with all relevant stakeholders in this regard, including the IOM.

Conclusion
Human trafficking is a heinous and flagrant violation of human rights especially, of the most vulnerable members of our society, especiallywomen and children and has to be tackled with all the seriousness we can muster as citizens, institutions and nation. It also, sadly, reflects our own attitude to the plight of our fellow human beings and our complicity in their suffering. We all need to join hands to deal with the criminals involved in this practice and more importantly address the underlying causes of this practice and the factors that sustain and feed it.

(*) Adv Tseliso Thipanyane, Chief Executive Officer of the South African Human Rights Commission.

(1) Section 10 of the Constitution.

(2) Section 12 of the Constitution.

(3) Section 13 of the Constitution.

(4) Section 21 of the Constitution.

(5) One in five people in the world today are said to live on less than $1 a day (about R7.40).

(6) Reported in The Sunday Independence, 25 March 2007, p 8.

(7) Ibid, p 8.

(8) International Organisation for Migration’s Bulletin: “Eye on Human Trafficking, Issue 12/2006 at http://iom.org.za/Reports/EYE (visited on 26 March 2007)

(9) Ibid.

(10) A supplement to the United Nations Convention Against Transnational Organised Crime. South Africa signed the protocol in 2004 and has also ratified it.

(11) Article 9 of the Protocol.

(12) Article 6 of the Protocol.

(13) Article 5 of the Protocol.

(14) A/RES/54/263 of 25 May 2000 entered into force on 18 January 2002. South Africa acceded to this in 2003.

(15) Discussion Paper 111, Project 131.