Transcript Slide 1
South African Legal Framework regarding Trafficking in Children By: Pamela Silolo Trafficking in children within SA In-country trafficking in children occurs mainly from Town to city Residential area to residential area Residential to business area Rural to urban areas Province to province Less wealthier to wealthier areas Western Cape, Gauteng and Kwa Zulu Natal has been identified as major centres where trafficking in children occurs Trafficking in children– Southern Africa South Africa Namibia Botswana Zimbabwe Mozambique Swaziland Lesotho Zambia Kenya Malawi Angola North America Australia South East Asia Western & Eastern Europe South Africa is a major destination, transit and place of origin centre. Trafficking in children - South Africa in-country and cross border phenomenon Trafficking in children - Sexual exploitation Child sexual exploitation includes child prostitution, child pornography and sex tourism. This also includes exchanging children as sex partners or as ‘wives’. In most cases the sexual exploitation occurs at the following locations. Brothels and sex clubs Hotels and holiday resorts Shebeens and bars Night clubs Private homes Streets Trafficking in children - child labour Children are recruited from rural areas to work in people’s homes in the urban suburbs Children are recruited to work on farms – agriculture, fruit and vegetable farms, cane and tobacco farms, Venders, hawkers, parking lot attendance, taxis fair collectors Assistants in shops, cafes, flea markets, etc. Mining, construction and manufacturing. Children recruited to work as beggers Children are recruited to engage in criminal activities; into gangs, as drug sellers and drug Runners Situations that place children at risk… Children who run away from home & places of safety Children who need to fend for themselves Children in rural areas and isolated locations Children who admired expensive clothes, shoes and cars with success – peer pressure Children who are addicted to alcohol and drugs Girls, as well as boys who desire careers in the modeling, fashion, film and hospitality industries. Children who do not have adequate adult supervision Children who live in families where sexual abuse and exploitation are tolerated Girl children who live in areas where gangs operate and individuals, networks and gangs who engage in prostitution as a money-making activity Impact of HIV/AIDS increases children’s vulnerability Cross border and internal migration Human rights abuse experienced by children during trafficking Groomed, lured, deceived, bribed and threaten Sold, bought and exchanged Forced to get hooked on drugs - dependency Abuse, held captive and denied freedom of movement Sexual abuse, assault, rape, gang rape Exploitation – sexual and economic Prostituted and used in pornography Forced to ‘work’ long hours – like slaves Forced to do dangerous work - injuries Denied schooling and protection Are debt bonded Consequences for children Severely traumatised Physical and psychological damage Hardened and not trusting of adults and officialdom Sexual dysfunctional behaviour - promiscuity Shame and stigmatization Lack of schooling and education Poor self image & esteem, communication and interpersonal skills Desensitized to own exploitation – view it as a normality South African Constitution 108 of 1996 Section 10 – right to human dignity Section 12 – right to freedom and security Section 13 – right not to be subjected to slavery, servitude and forced labour Section 28 – Bill of Rights for special protection of children Section 28 (2) – a child’s best interest are of paramount importance in every matter concerning a child. Children’s Act 38 of 2005 Chapter 18 – prohibits trafficking in Children - SA has added “adoption” to the UN definition - It is no defence to state that the child victim had consented to intended exploitation or that the intended exploitation or adoption did not occur. - No one or entity may let out a building or part of it for harbouring a trafficking victim. - No one may distribute information that alludes to trafficking by any means, incl. the use of the Internet or other information technology. Cont. The child victim must be repatriated to his place / country of origin and be accompanied by an adult. Suspend parental responsibilities where it is suspected that the parent had trafficked the victim. Child victim must be referred to a designated social worker and may be assisted with application for asylum. Extra territorial jurisdiction Cont. Exploitation includes:All forms of slavery or practices similar including debt bandage and forced marriages; Sexual exploitation; Servitude; Forced labour or services; Child labour; Removal of body organs. Cont. Chapter 15 – Adoption of children Chapter 16 – inter-country adoption The purpose of this chapter is give effect to the Hague Convention on Inter-country adoptions; to provide for the recognition of certain foreign adoptions; to find fit and proper adoptive parents for an adoptable child; to regulate inter country adoptions. Basic Conditions of Employment Act 75 of 1997 - Section 43 makes it an offence to employ children under 15 years / who are under minimal school leaving age. - No child may be employed in any kind of work that is inappropriate for the age of that person and which places the child’s well being, education, physical or mental health, spiritual, moral or social development at risk - Section 48 prohibits forced labour Domestic Violence Act 116 of 1998 Domestic relationships taking into consideration parent of a child victim who has parental responsibilities over the child victim Domestic violence allows for the inclusion of a variety of forms of abuse, intimidation, harassment, as well as any other controlling behaviour. Prevention of Organised Crime Act 121 of 1998 Section 2 - Aimed at the prohibition and criminalisation of certain activities that form a pattern of racketeering Section 3 - Aimed at criminalisation of persons that ought to have known of property that forms part of criminal activities and which is likely to have the effect of concealing, or disguising the nature, source, location, disposition or movement of the said property. Cont. Section 9 – relates to criminalisation of gang members for criminal activities. Provides for recovery of proceeds of unlawful activities as well as civil recovery of property due to criminal activities. Such property may also be forfeited to the state upon application. Promotion of Equality and Prevention of Unfair Discrimination Act 4 of 2000 It aims to give effect to the spirit of the SA Constitution:1) 2) 3) 4) Equal enjoyment of all rights and freedoms by every person The promotion of Equality The values of non-racialism and non-sexism contained in Section 1 of the Constitution The prevention of unfair discrimination and protection of human dignity as stated in Section 9 & 10 of Constitution Films and Publications Act 65 of 1996 The Act aims to provide for the classification of certain films and publications and deals with matters arising from the production, possession and distribution of such classified films. Section 1 (a) allows for the classification of publications if it contains a visual presentation, simulated or real of a person depicted as being under the age of 18 participating in sexual conduct. Possession & distribution of child pornographic publications and films are offences Immigrations Amendment Act 19 of 2004 Section 9 – no person shall enter or depart SA other than at a port of entry It further provides that a foreigner who does not have permanent residency to be in country may only enter by having a passport or temporary residence permit. Section 29 – foreigners who have warrants outstanding or a conviction from this country or other relating to genocide, terrorism, murder, torture, drug trafficking, money laundering or kidnapping may be prohibited to acquire temporary or permanent residency. A foreigner who is associated with being a member of a group using crime or terrorism to pursue its ends shall also be prohibited from entering the country. Cont. Section 30 – A foreigner who is a fugitive from justice is termed an undesirable person and may be refused entry into country. Section 35 – an immigration officer may arrest an illegal foreigner without a warrant and detain him / her in a manner and at a place prescribed and determined by the DG. Refugees Act 130 of 1998 Provides for principles and standards relating to refugees Section 32 – any unaccompanied minor who is found under circumstances that indicate that he / she is in need, must be brought before the Children’s Court and assisted to apply for asylum. Children’s Amendment Bill Section 137 – unlawful removal and detention Section 138 – unlawful taking or sending of of a child child out of Republic Section 141 – worst forms of child labour prohibited Section 191 – the development of child & youth care centres for trafficked children Section 214 – the establishment of shelters and drop in centres. Sexual Offences Bill Contains a transitional provision relating to trafficking of persons for purposes of sexual exploitation. Section 66 (5) – a trafficked victim is not liable to stand trial for any criminal offence which was directed as a result of being trafficked.