BY PROF.

MUHAMMED TAWFIQ LADAN (PhD)

A PRESENTION MADE AT

THE 2012 ANNUAL GENERAL CONFERENCE OF THE NIGERIAN BAR ASSOCIATION

VENUE: INTERNATIONAL CONFERENCE CENTRE, ABUJA DATE: 28TH AUGUST, 2012

.

INTRODUCTION
This paper aims at realizing the following objectives: To provide conceptual clarification of relevant key terms such as: - Child domestics, Trafficking in persons, Child trafficking and victims of trafficking and human rights violations; To determine the extent to which trafficking is both a crime and a human rights violations under international, regional and national legal instruments; To examine the typology of forced labour and the guiding principles of ILO Conventions in combating forced labour and human trafficking; clarifying the constitutive elements of the concept of forced labour; To conclude with some recommendations.
2

FACT SHEET: NIGERIA: CHILD TRAFFICKING Based on current knowledge, Nigeria

is a major supplier, consumer and also a transit route for human trafficking. Millions of children and women driven into different types of exploitative labour often become the most vulnerable groups. Basic Statistics Estimated total population (2006) 140.1m Male: 71,709,859 (51.22%) Female: 68,293,683 (48.78%) Life Expectancy 46.5 years Poverty Incidence 54.4% Average Growth Rate 3.2% Adult Literacy Rate: 69.1%
3

Fact Sheet: Nigeria: Child Trafficking (Contd)

Scale of the Problem (Estimates) Average age of trafficked children especially girls: 15yrs (could be higher or lower). Nigerian girls in sex trade in Europe: 60%-80% of girls in sex trade in Italy (over 200 in Italy while Belgium and Netherlands are experiencing an upsurge in the number of Nigerian girls). Common routes: West Coast to Mali, Morocco and by boat to Spain, or West Coast to Libya Saudi Arabia. Means of transportation: 90% travel by road across the Sahara desert, others through Airports, Seaports and bush paths. Stop-over locations: Cameroon, Ghana, Senegal, Niger, Libya, Mali and Morocco.
4

Fact Sheet: Nigeria: Child Trafficking (Contd)

Impact on Nigeria: Loss of lives, increasing prevalence of STDs including HIV/AIDS, increase in violence and crime rate, higher school drop outs, impaired child development, poor national image and massive deportation of Nigerian girls. Nature of problems: Nigeria serves as provider, receiver, transit and stop-over location. Categories of Child Labour Girls: domestic help, prostitution. Boys: used as scavengers, car washing, bus conducting, drug peddling, farming. Both can be involved in head loading, community-based brass melting and menial jobs.
5

Fact Sheet: Nigeria: Child Trafficking (Contd)

Volume of Trafficking About 8 million Nigerian children are engaged in exploitative child labour, putting them at great risk of human trafficking, as 43% of them are based in the southern border towns of Calabar, Port Harcourt and Owerri. Approximately 19% of school children in Nigeria work after school in exploitative and dangerous environments. It is estimated that 80% of children trafficked to Italy are from Africa and 60% of these are Nigerians. Boys are mostly trafficked from the south eastern part, Imo and Abia and Akwa-Ibom into Gabon, Equatorial Guinea and Congo, while those from Kwara move to Togo as far as Mali to work on the plantations.
6

Fact Sheet: Nigeria: Child Trafficking (Contd)

Private transit camps exist in Akwa-Ibom, Calabar and Ondo States, where children are transported from South eastern states and forced into hard labour and prostitution. Movement is from rural to urban areas, especially during festive period, most collection points were based in urban areas. As a result of on-going advocacy, trafficking agents now operate from the rural areas.

Fact Sheet: Nigeria: Child Trafficking (Contd)

Types of Trafficking Internal Trafficking Internal trafficking occurs with movement from State to State, originating from fostering and extended family systems, couple with inability of the child to trace family members. Middlemen cheat employers by receiving money in advance but do not allow the children to settle in one family or employment. Payment for the childrens services often never reaches the poor parents. Many of the children move out of koranic schools into the streets and are often used as human shields during religious conflict or as agents to ignite trouble. Internal movement of children for trafficking usually occurs during festive periods and other cultural activities (March, April and December).
8

Fact Sheet: Nigeria: Child Trafficking (Contd)

External trafficking (Not confined to Nigeria) On average, 10 children daily pass through Nigerians borders especially at Seme, Maiduguri, Sokoto and Calabar. Children from the south-south (Edo and Imo States) are the majority of those trafficked to Mali and Gabon, Saudi Arabia and Italy. Socio-cultural and religious practices facilitate easy movement of children to Sudan, Mali and Saudi Arabia.

Fact Sheet: Nigeria: Child Trafficking (Contd)

Major Causes Widespread poverty sparking the push-and-pull factors to urban centers. Limited capacity of Customs and immigration agencies, making the borders very porous. Weak legal and policy implementation. High level of illiteracy, unemployment and poor standards of living. Increase taste for materialistic values among youths aggravated by peer pressure. Poor reporting and monitoring of cases by law enforcement agencies.
10

Fact Sheet: Nigeria: Child Trafficking (Contd)

High school drop-out rates, couple with long closure of higher institutions of learning. Abuse of the common practice of placement and fostering, along with weakened extended family safety net. Desperation of poor and illiterate parents with large families, ignorant of the impact of child trafficking. (e.g. in the east, trafficking agents reportedly give poor parents money for a child to be trafficked).

11

Fact Sheet: Nigeria: Child Trafficking (Contd)

Suppliers * Parents/Relatives * Community and opinion leaders * Well placed business women Receivers Family households. Working mothers, widows. Sex tourism, hotels, brothels, and cultural troupes. Farms/cottage industries/motor parks. Smugglers/drug peddlers/trade associations. Networks in Africa, Europe, Asia and America

* Universities, Colleges
* Illegal hostels run by Syndicates

* Rehabilitation centers

12

Legal Framework
As stipulated in the Criminal Code for the South and Penal Code for the North, the Nigerian criminal law has several provisions protecting children and youth from harm and sexual exploitation. Within the last three decades, the Nigerian government has not enforced these laws effectively, however, since the democratic transition in 1999, the government and several States Houses of Assembly have passed or are in the process of passing laws to protect children.
13

Legal Framework (Contd)

Edo State recently passed a law banning prostitution. Anambra State banned children working during school hours. Cross-Rivers States recently passed a Bill outlawing child marriage and female circumcision. Governors from 19 Northern States commenced debates on promulgating laws to ban child street hawkers, child street beggars and prostitution. Sharia Penal Codes prohibit trafficking of children and women. Now in force are Anti-Trafficking in Persons Act, 2003 as amended in 2005 and the Child Rights Act, 2003. Signing of bilateral agreements with other countries for repatriation and rehabilitation of trafficked Nigerian Children/women and deportation of the barons. The Federal Government started arresting and prosecuting those involved in human trafficking and other forms of child abuse/economic, sexual and labour exploitation.
14

Legal Framework (Contd)

International treaties and standards on women and children signed/ ratified by the Government in December 2001.
Convention 182 on Minimum Age. Convention 138 on Elimination of the Worst Forms of Child labour. Optional Protocol to the Convention on Elimination of All Form of

Discrimination Against Women. Optional Protocol on the involvement of Children in Armed Conflicts. Optional Protocol on the Sale of Children, Child Prostitution and Child Pornography. Convention Against Torture and other cruel, Inhuman and Degrading Treatment or Punishment. Convention Against Transnational Organised Crime. Protocol to Prevent, Suppress and Punish Trafficking in persons, especially Women and Children.

ECOWAS Declaration on the Fight Against Trafficking In Persons.

15

2. CONCEPTUAL CLARIFICATION OF KEY TERMS

2.1 Child Domestic Service as a Human Rights Violation and Trafficking Generally from large poor rural families, child domestics are invisible child labourers as they are often confined to their employers house and have very little contact with the outside world. At the beck and call of their employers on a 24 hours basis, these children are highly vulnerable to abuse and exploitation. Child domestics toil mostly for working and middle-class families. Although this is a less inherently dangerous form of child labour the conditions under which it is generally performed lead to its classification as a worst form of child labour.
16

Child Domestic Service as a Human Rights Violation and Trafficking (Contd) Under the ILO Worst Forms of Child Labour Convention, 1999 (No. 182), the trafficking of children is considered a worst form of child labour. But the situation of the working children of West Africa may also be considered a worst form even if the children are not trafficked but are:under the minimum legal age for that type of work, as defined by national legislation in accordance with international standards; in work that endangers their physical, mental or moral well-being, either because of the nature of the work or because of the conditions under which it is performed; or in a situation that can be defined as slavery or bonded labour. Of the more than two hundred million children working in the world, it is impossible to know how many are exploited in domestic service. The ILO estimates that more girl-children under 16 years are in domestic service than in any other category of work or child labour. Because child domestic service takes place in a private sphere or home and is therefore hidden, there is no accurate breakdown of the figures. However child domestic labour is a long established tradition in West Africa. Children are trafficked not only internally but between Benin, Burkina Faso, Cameroon, Coted Ivoire, Guinea, Ghana, Mali, Niger, Nigeria and Togo 17

Child Domestic Service as a Human Rights Violation and Trafficking (Contd)

Child domestic service in Nigeria today becomes violative of childrens rights if it is deprivative of the rights of the child to be given protection and care necessary for his/her wellbeing; deprivative of the rights of the child to survival and development, to freedom of movement and from discrimination; deprivative of the family union, to human dignity, to leisure and recreation, to parental care, protection and maintenance, to free, compulsory and universal primary education; etc, as provided by sections 2-15 of the Child Rights Act, 2003.
18

Child Domestic Service as a Human Rights Violation and Trafficking (Contd)

Further, child domestic service becomes a human rights violation issue in Nigeria when it is in contravention of: - Section 28 of the Childs rights Act, 2003, which prohibits any child forced or exploitative labour, including employment of a child as a domestic help outside his or her own home or family environment. Furthermore, section 30 of the Childs Rights Act prohibits the buying, selling hiring or otherwise dealing in children for the purpose of hawking or begging for alms or prostitution, or domestic or sexual labour, unlawful or immoral purpose, slavery, trafficking, debt bondage, forced or compulsory labour or for the purpose of depriving the child of the opportunity to attend and remain in school as provided for under the compulsory, free Universal Basic Education Act.
19

2.2

The meaning of Victims of Crime and Abuse of Power

The UN Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power (otherwise known as Victims Declaration) defines as Victims of Crime:Persons who, individually or collectively, have suffered harm, including physical or mental injury, emotional suffering, economic loss or substantial impairment of their fundamental rights, through acts of omissions that are in violation of criminal laws operative within Member States, including those laws proscribing criminal abuse of power.

20

The meaning of Victims of Crime and Abuse of Power (Contd)

In Article 18 of the Victims Declaration, a definition of Victims of abuse of power is given:Persons who, individually or collectively, have suffered harm, including physical or mental injury, emotional suffering, economic loss or substantial impairment of their fundamental rights, through acts or omissions that do not yet constitute violations of national criminal laws but of internationally recognized norms relating to human rights.

21

The meaning of Victims of Crime and Abuse of Power (Contd)

The Declaration further states that a person may be considered a victim regardless of whether the perpetrator is identified, apprehended, prosecuted or convicted and regardless of the relationship between the perpetrator and the victim. The notion of victim is subsequently extended to the immediate family or dependants of the victim, as well as to persons who suffered harm intervening on the victims behalf. The victims Declaration does not distinguish between male and female victims, nor does it address the specific vulnerabilities and needs of female victims of crime and abuse of power.
22

2.3

Defining Violations of Human Rights

In principle, there are two ways to address the issue of violations of human rights. From the victims standpoint, the Declaration of Basic Principles of justice for Victims of Crime and abuse of power proposes two definitions for such violations. The first characterizes them as a violation of criminal law operative within Member States, including those laws proscribing criminal abuse of power. Central to such violations is the individual or collective harm and suffering caused to persons, including physical or mental injury, emotional suffering, economic loss or substantial impairment of their fundamental rights, through acts or omissions that can be imputed to the State. The second definition concerns those acts and omission (imputable to the State) that do not constitute violations of national criminal laws but of internationally recognised norms relating to human rights.
23

2.4 Defining Trafficking as a crime and a human rights violation.

Article 3 (a) of the UN Protocol to prevent, suppress and punish trafficking in persons, particularly women and children, contains three separate elements in its final definition of Trafficking in Persons namely:An action, consisting of:- Recruitment, transportation, transfer, harboring or receipt of persons; By means of: Threat or use of force or other forms of coercion, abduction, fraud, deception, abuse of power or position of vulnerability, giving or receiving payments or benefits to achieve consent of a person having control over another; For the purpose of: Exploitation (including, at a minimum, the exploitation of 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).
24

2.4 Defining Trafficking as a crime and a human rights violation.

All three elements must be present for the protocol to become operational within a given fact- situation. The only exception is for children for whom the requirements relating to means are waived. In its final version, the protocol does not define the terms slavery, forced labour, practices similar to slavery, or servitude. In relation to the first three of these, it may be assumed that accepted definitions contained in other international legal instruments will be applicable. The UN Anti-Trafficking Protocol (otherwise known as the Palermo Protocol), with its definition of trafficking, considered above, provides useful guidance for law reform and the CRIMINALIZATION of this practice as part of state Parties obligations thereunder.
25

2.4.1 Trafficking as a crime punishable in Nigeria.

In accordance with the useful guidance for criminalisation of trafficking in persons provided by the UN anti-trafficking protocol, the Nigerian trafficking in persons (Prohibition) Law Enforcement and Administration Act No. 24 of 2003, adopted the Protocols definition and the three separate elements with a slight modification. Hence under section 50 paragraph 9 of the Act, the term Trafficking includes: 1. All acts and attempted acts involved in the recruitment, transportation within or across Nigerian borders, purchases, sale, transfer, receipt or harboring of a person; 2. By means of: deception, coercion or debt bondage; 3. For the purpose of:- Placing or holding the person whether for or not in involuntary servitude (domestic, sexual or reproductive) in force or bonded labour, or in slavery-like conditions.
26

Trafficking as a crime punishable in Nigeria (Contd)

Further, under sections 11-32, 34, 44 and 47 of the antitrafficking Act, the following offences and punishments are prescribed respectively: Exportation of persons out of Nigeria and importation of persons in to Nigeria Punishment: Liable on Conviction to imprisonment for life. Procurement of any person for illicit intercourse with another person. Punishment: Liable on conviction to imprisonment for 10 years without option of fine. Causing or encouraging the seduction or prostitution of any person under eighteen years. Punishment: Liable on conviction to imprisonment for 10 years.
27

Trafficking as a crime punishable in Nigeria (Contd)

Procurement of any person under eighteen years to have unlawful carnal knowledge with any other person either in Nigeria or outside Nigeria. Punishment: Liable on conviction to 10 years imprisonment. Procurement of any person for prostitution, pornography and use in armed conflict Punishment: Liable on conviction to imprisonment for 14 years without an option of fine. Any person who promotes foreign travel, which promotes prostitution. Punishment: Liable on conviction to imprisonment for 10 years without an option of fine

28

2.4.2 Child Trafficking as a violation of human rights in Nigeria.

The trafficking of children is one of the gravest violation of human rights in the world today. Children and their families are lured by the empty promises of the trafficking networks: - promises of a better life, of an escape route from poverty, and every year, hundreds of thousands of children are smuggled across borders and sold as mere commodities. Their survival and development are threatened and their rights to education, to health, to grow up within a family, to protection from exploitation and abuse, are denied.
29

Child Trafficking as a violation of human rights in Nigeria (Contd)

Important international legal instruments, to which Nigeria is either a party or a signatory, are already in place, particularly the UN Convention on the Rights of the Child and its Optional Protocol on the sale of children, Child Prostitution and Child Pomography, the supplementary Protocol to the International convention on Organised Crime to Prevent, Suppress and Punish Trafficking in Persons; Especially Women and Children and the new ILO Convention 182.
30

What constitute Child Trafficking? Under Article 3(a) of the UN Anti-trafficking Protocol, trafficking in persons, is, therefore, envisaged as the transfer of persons by fraudulent means for exploitative purposes. On child trafficking, sub-paragraph (c) of the same article goes further, in that it is not deemed necessary for fraudulent means to be used for a situation to be classified as child trafficking:The recruitment, transportation, transfer, harboring or receipt of a child for the purpose of exploitation shall considered trafficking in persons even if this does not involve any of the means set forth in sub-paragraph (a) of this article.
31

Child Trafficking as a violation of human rights in Nigeria (Contd)

What Constitute Child Trafficking? (Contd)

This definition is of fundamental importance in West and Central Africa, where child trafficking often occurs with the consent of the parents and, sometimes, of the children themselves. In the light of the definition of the child adopted by Article 1 of the UN Convention on the Rights of the Child (CRC), these principles apply to anyone under 18 years of age. Articles 2 of the African Union Charter on the Rights and Welfare of the Child adopted the same definition.
32

What Constitute Child Trafficking? (Contd)

The reference to an exploitative purpose establishes a clear distinction between the phenomenon of trafficking in persons referred to in these instruments and the trafficking in migrants. In West and Central Africa this is a fundamental distinction. This sub-region is criss-crossed by migration, some of it dating back centuries. This new definition, therefore, compels states and their partners to distinguish between child trafficking and the seasonal migration of child workers and the situation of immigrant children exposed to exploitative labour.
33

What Constitute Child Trafficking? (Contd) It is interesting to compare the definition in the Inter-American convention on International Child Trafficking, adopted by the Organisation of American States in March 1994. Article 2 sub-paragraph (b) defines Child trafficking as the abduction, transportation or the retention of a child or the attempt to abduct, transport or retain a child, for illegal purpose or by illegal means. This definition covers a wide range of situations. If the means used to transfer the child are illegal, the legal status of the purpose of the transfer becomes immaterial. This convention addresses child trafficking for adoption, where the aim may be legal but the means are fraudulent.
34

What Constitute Child Trafficking? (Contd) The Protocol to the CRC on the sale of children, child prostitution and child pornography gives a broad definition of the sale of children that covers many constituents of child trafficking. This makes it possible to prosecute intermediaries as well as employment agents and employers. Article 2(a) of the Protocol defines the sale of children as any action or transaction that transfers a child from one person or group of persons to another for remuneration or any other benefit. Article 3(1) (a) calls on state parties to make it a criminal offence to offer, deliver or accept, by whatever means, a child for the purpose of sexual exploitation, transfer of organs of the child for profit, or engagement of the child in forced labour.
35

2.5 Who is a Victim of Trafficking?

Under section 50 paragraph 10 of the Nigerian Anti Trafficking in Persons Act, a victim of trafficking means any trafficked person. It is evident from the earlier analysis of victim of crime, abuse of power and of human rights violation, as well as trafficking as a crime and a violation of human rights under both Nigerian and International Laws, that there are three categories of victims of trafficking:- trafficked children below the age of 18 years (boys and girls), trafficked adult women, who are above the age of 18 years, and trafficked men, who are adult males or above the age of 18 years.
36

3. STEPS TAKEN TO COMBAT HUMAN TRAFFICKING

Legislative measures Legislative measures against human trafficking, including trafficking in children, have been taken at the national level by the Federal Government and at the State levels by some state governments. At the National level, the CRA under Section 30(2) (b) provides that a child shall not be used as a slave, or for practices similar to slavery such as trafficking of the child, debt bondage etc. Sections 223-225 of the Criminal Code, applicable in Southern Nigeria, and Articles 278-280 of the Penal Code, applicable in Northern Nigeria provide for sanctions against human trafficking. Section 34 of the 1999 Constitution prohibits slavery and forced labour.
37

Steps taken to combat human trafficking (Contd) Further, Trafficking in Persons (Prohibition) Law Enforcement and Administration Act 2003 prohibits trafficking in human persons and provides for the rehabilitation of victims of trafficking. In line with this Act, Nigeria established the National Agency for Prohibition of Traffic in Persons and Other Related Matters (NAPTIP) in August 2003. With the amendment to the legislation in 2005, Section 54 of the NAPTIP Act 2005 as amended established a Trafficked Victims Fund into which all proceeds of the sale of assets and properties of traffickers are channeled for victims rehabilitation.
38

Steps taken to combat human trafficking (Contd)

A Board of Victims of Trafficking Trust Fund has been inaugurated by the Hon. Attorney-General of the Federation in line with the provisions of the Trafficking in Persons (Prohibition) Law Enforcement and Administration Act, 2003 as amended. Administrative Measures Cooperation Agreements have been signed between Nigeria and Spain, Italy, Benin Republic, Switzerland, Luxembourg, Government of UK, Great Britain, Northern Ireland and The Netherland. Two coordinating groups and an Anti-Trafficking Network have been set up by the Agency, with the support of the United State Department of State and UNICEF to facilitate synergy and convergence on combating Child Trafficking in Nigeria 39

Steps taken to combat human trafficking (Contd)

The impact of Nigerias cooperation with countries of destination has resulted in an increase in the level of arrest and prosecution of those involved in women and child trafficking and other forms of sexual exploitation. Development partners, international agencies and NGOs have given material and technical support to NAPTIP to assist in the rescue, rehabilitation and social reintegration of trafficked persons. NAPTIP delegation led by the Executive Secretary went on a fact finding mission to Mali on 12th October, 2010 and the Agency is working out the modalities to rescue about 150 victims and repatriate them to Nigeria. There was a follow up visit by the Agency to Mali in June 2011.
40

Steps taken to combat human trafficking (Contd)

41

Steps taken to combat human trafficking (Contd) Victims of Trafficking Identified by State Authorities in Nigeria, by Country of Citizenship (2005 Sept. 2008)

42

Steps taken to combat human trafficking (Contd) Persons Convicted for Trafficking in Persons in Nigeria, by Gender (2004 2008)

43

Steps taken to combat human trafficking (Contd)

It is a commonly hold view that the criminal justice response to the human trafficking problem has been largely inadequate. In support of this view, critics note that the number of trafficking convictions pales in comparison to the estimated number of trafficking victims.

44

Steps taken to combat human trafficking (Contd)

45

Limitations and Challenges

Weak data base on human trafficking and traffickers. Inadequate provision of basic social services and weak enforcement of the law/legal technicalities. Inadequate international and regional bilateral agreements against human trafficking. Due to the bilateral agreement between Nigeria and Italy, massive repatriation of the girls commenced, who often go as children and return as adults. As some of the repatriated girls are temporally kept in police custody before family reunification, inadequate infrastructure makes them become violent and lawless.
46

CONCLUSION
It is evident from the above analysis that given the numerous instruments that set out to protect the rights and welfare of suspects and accused persons, the fact that there is little or no legal foundation protecting those of victims of crime and abuse of power offers a disconcerting view of priorities. It does not seem fair or just that their rights and position are so poorly protected in comparison with the levels of protection extended to offenders. While the situation of all victims of crime and abuse of power is a matter of concern to all the organs for the administration of criminal Justice, victims of trafficking deserve particular attention for the very fact that the violation in question has been committed by unscrupulous and heartless individuals or group of individuals in an organised setting, through their official collaborators, at times, to debase the human dignity of trafficking victims. 47

Conclusion (Contd)
1)

2)

Accordingly, the following viable options are proposed. Judicial and administrative mechanisms should be strengthened where necessary to enable victims to obtain prompt and adequate redress through formal and informal procedures that are expeditious, fair, inexpensive and accessible. Need to educate the public about the rights and duties of suspects, offenders, victims and the state as stakeholders in the criminal justice system. This is with a view to ensure a meaningful balance in addressing the needs, concerns, hopes, fears, and aspirations of all citizens in the society
48

Conclusion (Contd)
Need to further re-examine our criminal justice administration with a view to addressing the problems created by our inheritance of a colonial system which extols the theory of law and state to the point that recognizes only the state and the offender as the parties to criminal proceedings, and to the attendant neglect of the rights and welfare of the victim. 4) There is the need for further inter-agency and international coordination and collaboration to combat effectively the menace of trafficking; need to strengthen the capacity of NAPTIP and other law enforcement agencies on developing programmes that seek to assist victims of trafficking physically, psychologically, educationally, economically and for ultimate social reintegration into the society.
3)
49

THANK YOU
50