Draft Report on Forced Labour and Human Trafficking in the Southern African Development Community

DRAFT REPORT ON FORCED LABOUR AND HUMAN TRAFFICKING IN THE SOUTHERN AFRICAN DEVELOPMENT COMMUNITY

Sub-regional Conference on the Ratification and Implementation of the new ILO Protocol on Forced Labour, Lusaka, Zambia 17-18th November, 2015

Introduction

This background report on forced labour and human trafficking prepared for the Sub-Regional conference on the Ratification and Implementation of the New ILO Protocol on Forced Labour to be held in Lusaka, Zambia on 17 and 18 November 2015 and convened by the ILO Country Office for Malawi, Mozambique and Zambia. It provides information and data (to the extent available based on desk review of available literature), on the forms and manifestations of these violations of fundamental human rights in the fifteen Member States of the Southern African Development Community (SADC). The purpose of the report is to enable participants of the conference to evaluate progress made in eradicating forced labour and combatting human trafficking, and to identify further efforts that need to be undertaken in order to achieve measurable progress in the implementation of obligations under the ILO Forced Labour Convention, 1930 (No. 29) and the Abolition of Forced Labour Convention, 1957 (No.105) (“the Forced Labour Conventions”). It does not provide an exhaustive evaluation of root causes and socio-economic factors, nor does it provide any in-depth analysis of the scope and prevalence of forced labour and human trafficking. Such an exercise should be undertaken however, as the dearth of data and empirical studies in the region reflect a key challenge that needs to be addressed.

The SADC members are: Angola, Botswana, Democratic Republic of the Congo (DRC), Lesotho, Madagascar, Malawi, Mauritius, Mozambique, Namibia, Seychelles, South Africa, Swaziland, United Republic of Tanzania, Zambia and Zimbabwe. All SADC members have ratified the ILO Forced Labour Conventions and some have also ratified the United Nations Optional Protocol to Prevent, Suppress and Punish Trafficking in Persons, especially

Women and Children, adopted in 2000 and which came into effect in 2003 (“the Palermo Protocol”).

This review and conference occur against the backdrop of a key development in the strengthening of the international labour standards framework in order to enhance the struggle to eradicate the scourge of forced labour and human trafficking. In June 2014 the International Labour Conference voted overwhelmingly to adopt the new Protocol 29 (“the Protocol”) and Recommendation 203 to the Forced Labour Convention, 1930 (No.29). The Protocol (binding once it is ratified by two ILO member states) and Recommendation (non–binding) complement the Forced Labour Convention (C.29) and call for effective measures to eliminate forced labour, in particular through prevention, protection of victims and effective remedies, including compensation. In May 2015 Niger became the first member state to ratify the new Protocol. It is significant that the first ratification is not only an African country but also one in which forced labour in the form of vestiges of traditional slavery and other slavery-like practices continue to exist.

Given the decision of the ILO Governing Body to endorse a follow-up strategy to promote rapid ratification and implementation of the new instruments (GB.322/INS/4/2), raising awareness of the new instruments will provide a basis for more African member states to ratify and implement the concrete guidelines.

This makes it imperative to understand the current forms in which forced labour manifests itself in Southern Africa. It is necessary also to identify the socio-economic root causes for these practices, their apparent ease of existence in a global economy where borders to trade and investment are falling but to people are increasing, and the continued generation of illicit profits that drives their growth. SADC member states face many complex challenges in the region, of which forced labour is but one, but addressing the elimination of forced labour and combatting human trafficking can meet other challenges such increased economic growth, enhanced security and development cooperation, the creation of decent work, as well as in the longer

term, the achievement of the goals and targets of the 2030 Sustainable Development Goals (in particular goal 8 and target 8.7 which calls for the elimination of forced labour, modern slavery and child labour by 2025).

In this context, the SADC member states are making express commitments to develop legislative and policy frameworks that best give effect to their obligations under Convention 29 and recognize the new forms of coercion that are emerging in the global economy. Those states that already have a legal and institutional framework in place that enables them to effectively address forced labour and human trafficking, are seeking to increase law enforcement and enhance access to justice for victims of forced labour and human trafficking, whilst those that have yet to develop legal frameworks that comply with international labour standards face the challenge of addressing this as an urgent imperative. This emerges from the specific country profiles.

The persistence of forced labour and human trafficking in the global economy

The gross violations of human rights that occur in situations of forced labour are compounded when they occur as a result of human trafficking, which has emerged as a pernicious mechanism to compel the supply of work and services, mainly through moving people from their communities, cities or countries. The new ILO instruments were adopted in the recognition that the context and forms of forced or compulsory labour have changed and that trafficking in persons for the purposes of forced or compulsory labour or forced prostitution, is the subject of growing international concern and requires urgent action for its effective elimination. The nexus between forced labour and human trafficking ilustrates that while globalisation has brought new opportunities for movement of people and products, access to economic opportunity, investment and markets, it has also created opportunities for coercion, abuse and exploitation which are harder to follow across borders and remain hidden in the informal sector or in global supply chains.

The staggering scale of the problem revealed by the ILO 2012 Global Survey of Forced Labour, that 20.9 million people are exploited in forced labour globally, with 3,7 million in Africa alone1, is a stark reminder that global efforts to eradicate the problem need to increase in intensity and scale. In Africa this figure reflects a prevalence rate of 4 out of every 1000 inhabitants. The vast majority of these people are exploited in the private sector (90% or 18.7 million) and 10 % (2.2 million) are in state-imposed forms of forced labour such as in prisons or in work imposed by military or paramilitary forces.

The continued exploitation of labour occurs because of a confluence of factors such as opportunity, poverty and profitability. The ILO report “Profits and Poverty: The Economics of Forced Labour” 2 (based on data in the 2012 Global Survey of Forced Labour) provides startling estimates of the illegal profits generated through the use of forced labour, as well as new evidence of the key socio-economic factors that increase the risk of falling victim to coercion and abuse. It estimates that profits in excess of US $150 billion are generated annually from the exploitation of forced labour in the private sector. It also provides clear data for the links between household vulnerability to sudden income shocks and the likelihood of ending up in forced labour. In Africa alone, the illegal profits made are 13.1 billion.

The estimates also provide a picture of the impact of migration on forced labour. Of the total, an estimated 9.1 million people (44 per cent) moved either internally or internationally, while the majority, 11.8 million (56 per cent), was subjected to forced labour within their place of origin or residence. The study also showed that cross-border movement is strongly associated with forced sexual exploitation, while a majority of victims of forced labour exploitation, and almost all those in state-imposed forced labour, have not left their home areas.3

1 See 2012 Global survey referred to in 2014 report, Profits and Poverty : The Economics of Forced Labour, ILO, Geneva, 2014, page 7. 2 Ibid, page 8. 3 Ibid, page 8.

The UNODC Global report 2014 confirms that sexual exploitation is by far the most commonly identified form of human trafficking (79%), followed by forced labour (18%). This may be the result of statistical bias. By and large the exploitation of women tends to be visible, in city centres, or along highways. Because it is more frequently reported, sexual exploitation has become the most documented type of trafficking in aggregate statistics. In comparison, other forms of exploitation are under-reported: forced or bonded labour; domestic servitude and forced marriage; organ removal; and the exploitation of children in begging, the sex trade, and warfare.

However, the scenario is not all doom and gloom. As noted in the ILO’s 2014 report, the Economics of Forced Labour, progress is being made in the struggle against forced labour. State-imposed forced labour is declining in importance when compared to the extent of forced labour in the private economy, although vigilance is needed to prevent state-imposed forced labour from resurging. However, the high prevalence rate of forced labour in certain regions (for example Africa and the CSEE) means that increased scrutiny is required of the factors that create the demand, supply of forced labour, the opportunities for exploitation and the profitability that continues to be a driving force in the open markets of the global economy. In particular, the hidden and often invisible forms of forced labour in transnational supply chains, mainly in constituent businesses of global brands, needs further investigation and exposure.

While the root causes of human trafficking are complex, the vulnerability resulting from poverty is a major contributor. Some of the pull factors that draw people into the trafficking chain include: economic inequality, which makes neighbouring cities, regions or countries attractive destinations for people in highly impoverished regions; conflicts, which generate a demand for domestic and sexual services; the adoption trade; and the use of organs or body parts for rituals. The push factors are primarily poverty and deprivation, persistent unemployment, gender discrimination, lack of information and education, harmful socio-cultural practices and lack of legislative and policy

protection. Women and children are the most vulnerable to human trafficking, largely because they tend to carry the brunt of the poverty burden. Although poverty is in many cases the key push factor, this is not always the cause. Issues such as disempowerment, social exclusion and economic vulnerability are the results of policies and practices that marginalize entire groups of people and render them particularly vulnerable to being trafficked. Natural disasters, conflict and political turmoil exacerbate the inadequacies of already tenuous social protection measures (UNODC 2008: 3).

The legal and normative framework relating to forced labour and human trafficking

Not all forced labour occurs in conditions of slavery or enslavement as defined in the League of Nations Slavery Convention of 19264 and the 1956 United Nations Supplementary Convention on the Abolition of Slavery, the Slave Trade, and Institutions and Practices Similar to Slavery. Other than reflecting the undertaking of states parties in article 5 of the 1926 Convention to “take all necessary measures to prevent forced and compulsory labour from developing into conditions analogous to slavery” in their colonies, and permitting the use of forced labour for public purposes and for private purposes subject to certain conditions, the Slavery Conventions make no further reference to forced labour. The Supplementary Convention in its preamble notes the International Labour Organisation (ILO) Forced Labour Convention and its subsequent action in regard to eliminating forced or compulsory labour. Further normative development and monitoring of compliance with the Convention concerning Forced or Compulsory Labour (Convention No. 29) has been the domain of the ILO.

Convention 29, the 2014 Protocol to the Forced Labour Convention, as well as the Abolition of Forced Labour Convention, 1957 (No.105) provide a comprehensive framework for the identification and elimination of forced

4 The 1926 Slavery Convention defines slavery as “the status or condition of a person over whom any or all of the powers attaching to the right of ownership are exercised” (Article 1(1)).

labour. In addition, the Convention concerning the Prohibition and Immediate Action for the Elimination of the Worst Forms of Child Labour (Convention No. 182), defines the worst forms of child labour to consist of, amongst others, “all forms of slavery or practices similar to slavery, such as the sale and trafficking of children, debt bondage and serfdom and forced or compulsory labour, including forced or compulsory recruitment of children for use in armed conflict”. The ILO and its supervisory bodies have made a significant contribution to the substantive development of norms and standards in relation to forced and child labour and the almost universal ratification of these instruments (C.29 and C.105 are the most widely ratified of the eight ILO fundamental conventions) reflects that freedom from forced or compulsory labour has achieve the status of a universal, non-derogable peremptory norm of international human rights law.5

In the current globalized economic context the terms “forced labour”, “human trafficking”, “slavery and slavery-like practices” or “contemporary forms of slavery” are often used interchangeably to refer to extreme forms of labour exploitation and abuse that occur at the nexus of involuntary work and new forms of coercion. These practices and institutions may be regulated by different international legal instruments and monitored or supervised by different human rights bodies, but they all have one thing in common - they constitute gross violations of fundamental human rights to life, liberty, and dignity in violation of international human rights norms and standards. They occur in situations where vulnerable men women and children, are coerced, abused and exploited for their labour or services in situations where they have not voluntarily accepted the terms and conditions of their employment; where their personal property including identity documents and passports are held by the employer or its agent; or where the nature of the work performed is often hazardous to their health or is performed in conditions that are not conducive to their physical and mental well-being. In many cases they cannot

5 General Survey on the fundamental Conventions concerning the rights at work in light of the ILO Declaration on Social Justice for a Fair Globalization 2008, ILO : Geneva, 2012, para 252.

leave the situation out of fear that threats made of (them or their families) being physically harmed will become real, because they have no freedom of movement, or in anticipation of wages owed to them being paid by their employer.

The ILO’s supervisory body, the Committee of Experts on the Application of Conventions and Recommendations (“the CEACR”) 6 has provided guidance on the scope of the definition of forced labour, stressing that it encompasses trafficking in persons for the purpose of labour and sexual exploitation, as defined in the United Nations Protocol to Prevent, Suppress and Punish Trafficking in Persons Especially Women and Children, supplementing the United Nations Convention against Transnational Organized Crime, adopted by the General Assembly in November 2000 (“the Palermo Protocol”). There is therefore a clear link between the Palermo Protocol and ILO Convention No. 29. The only type of exploitation specified in the Protocol’s definitional article that is not also covered by ILO Convention No. 29 is trafficking for the removal of organs.

The Palermo Protocol Article 3 defines trafficking in persons as follows :

(a) "Trafficking in persons" shall mean the recruitment, transportation, transfer, harbouring or receipt of persons, by means of the threat or use of force or other forms of coercion, of abduction, of fraud, of deception, of the abuse of power or of a position of vulnerability or of the giving or receiving of payments or benefits to achieve the consent of a person having control over another person, for the purpose of exploitation. Exploitation shall include, 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;

(b) The consent of a victim of trafficking in persons to the intended exploitation set forth in subparagraph (a) of this article shall be irrelevant where any of the means set forth in subparagraph (a) have been used;

6 General survey concerning the Forced Labour Convention, 1930 (No.29) and the Abolition of Forced Labour Convention, 1957 (No.105). ILO Committee of Experts on the Application of Conventions and Recommendations (CEACR): (Geneva, 2007), Report III (Part 1B), para. 77.

(c) The recruitment, transportation, transfer, harbouring or receipt of a child for the purpose of exploitation shall be considered "trafficking in persons" even if this does not involve any of the means set forth in subparagraph (a) of this article;

(d) "Child" shall mean any person under eighteen years of age.

Convention No. 29 defines forced labour as: “All work or service which is exacted from any person under the menace of any penalty and for which the said person has not offered himself voluntarily'' (ILO C.29, Art. 1). Coercion and lack of consent are thus key elements of the definition. This definition can cover a range of circumstances in which a person is forced to work against his or her will, or is afraid of leaving because they face threats or penalties, directed at themselves or their families. For example, someone who voluntarily accepts a job, only to find that the job is not what was promised and is unable to leave because of threats made by the employer, is in a situation of forced labour. It may also apply to a worker who is unable to leave the job because they have not been paid for an extended period, or because their identity documents are withheld by the employer. However, workers who remain in a job because, out of economic necessity, they are unable to leave (but if they found another job would be free to leave) would not be regarded as being exploited in forced labour. Furthermore, not everyone who is not working voluntarily is in forced labour, and there is often a fine line between exploitative abuse and conduct that falls within the legal defintion of forced labour. As was illustrated by the Zambia study conducted of complaints registered with the Ministry of Labour and Social Services, the legal concept of forced labour is often not understood. The study found no instances of complaints that met the definition of forced or compulsory labour, and most complaints involved exploitative conditions, unpaid wages and other labour rights violations falling short of forced labour7.

The definition of forced labour contains a number of key concepts which have been developed by the CEACR:

7 Investigating forced labour and trafficking: Do they exist in Zambia?, Carron Fox, ILO Special Action Programme Against Forced Labour, 2008.

“All work or service”, refers to all types of work or service provision, regardless of the sector and whether or not the work is performed for individual employers or as part of a state sponsored programme. It also encompasses work in both legal and formal and illegal and informal employment. Hence, forced labour may occur in every economic sector, in formal and informal work, and in the public and private economy. It encompasses both forced labour and forced prostitution and other services.

“Any person” refers to any individual, regardless age, gender, and nationality and includes children below the age of 18.

“Menace of any penalty” includes both actual sanctions as well as threats of sanctions against someone for not performing the work imposed on them. This may refer both to criminal sanctions, threats of physical harm or denunciation to the authorities (in the case of undocumented migrants), threats of supernatural retaliation as well as actual physical harm, retention of identity documents, physical confinement or withholding of wages. The penalty may also take the form of loss benefits or privileges.

“Voluntary” refers to the free choice to accept the employment, based on correct and adequate information, and the right to freely leave that employment on reasonable notice without risk or fear of retaliation by the employer or another agent. Victims of forced labour are often victims not only of coercion but also of deception about the nature of the work, its terms and conditions and often its physical location and accompanying rights and benefits.

Forced labour is therefore not work that someone has taken on because of circumstances like poverty or displacement, nor is it all hazardous work (including of children, although hazardous work of children constitutes one of the worst forms of child labour), or all work that is paid below the minimum wage or undertaken under difficult and abusive working conditions. The ILO has developed indicators to identify when forced labour is present in a particular situation, and the existence of even one of these indicators confirms that the individual is being subjected to forced labour.8

The indicators are: • Abuse of vulnerability • Deception • Restriction of movement

8 http://www.ilo.org/wcmsp5/groups/public/---ed_norm/--- declaration/documents/publication/wcms_203832.pdf

• Isolation • Physical and sexual violence • Intimidation and threats • Retention of identity documents • Withholding of wages • Debt bondage • Abusive working and living conditions • Excessive overtime

Convention No. 29 provides for certain exemptions from the definition of forced labour, including: (a) any work or service under compulsory military service that is of a purely military character, (b) any work or service that forms part of normal civic obligations, (c)work as a consequence of a conviction in a court of law and carried out under the control of a public authority, provided the person is not placed at the disposal of private individuals, companies or associations, (d)any work in emergency situations such as wars or natural calamities, and (e) minor communal services provided the members of the community are consulted about the need for these services (Art. 2.2).

A subsequent ILO Convention, the Abolition of Forced Labour Convention, 1957 (No. 105) further specifies that forced labour can never be used as a means of political coercion or education or as punishment for expressing political views or for participating in strike action, as labour discipline, as racial, social, national or religious discrimination, or for mobilizing labour for economic development purposes. This is primarily a constraint on state- imposed forced labour, and as can be seen in the discussion of country situations, the ILO supervisory bodies have in many instances commented on the persistence of labour mobilization for development purposes (such as in Swaziland, for example).

Forced labour of children is defined as one of the worst forms of child labour. Article 3 of the Worst Forms of Child Labour Convention, 1999 (No.182)

include within its definition, inter alia, “(a) all forms of slavery or practices similar to slavery, such as the sale and trafficking of children, debt bondage and serfdom and forced or compulsory labour, including forced or compulsory recruitment of children for use in armed conflict;” as well as “hazardous work” (defined in article 3(d) as “work which, by its nature or the circumstances in which it is carried out, is likely to harm the health, safety or morals of children”). In other words, even though children cannot voluntarily “consent” to exploitation and the definition of forced labour in Convention No.29 covers both adults and children, not all hazardous work by children can be said to constitute forced labour.9 One of the obligations of ratifying states in relation to eliminating child forced labour can further be obtained from the Minimum Age Convention, 1973 (No. 138) requires ratifying States to prohibit “any type of employment or work which by its nature or the circumstances in which it is carried out is likely to jeopardise the health, safety or morals of young persons” for children under 18 years of age (article 3).

Other conventions that place obligations on ratifying states in regard to eliminating forced and compulsory labour of vulnerable workers are :  The Domestic Workers Convention, 2011 (No. 189) provides in Article 3 that every Member take measures “to respect, promote and realize the fundamental principles and rights at work” for domestic workers, including the elimination of forced and compulsory labour.

 The Migrant Workers (Supplementary Provisions) Convention, 1975 (No. 143), in Article 1, requires ratifying States “to respect the basic human rights of all migrant workers”, which necessarily includes freedom from forced labour.

 The Indigenous and Tribal Peoples Convention, 1989 (No. 169) provides in Article 11 that : “The exaction from members of the peoples concerned of compulsory personal services in any form, whether paid or unpaid, shall be prohibited and punishable by law, except in cases

9 Profits and Poverty : The Economics of Forced Labour, (ILO : Geneva), 2014, p 3.)

prescribed by law for all citizens.”

States’ obligations to eliminate forced or compulsory labour

Under C.29 article 1(1) every member state ratifying the Convention undertakes to “suppress the use of forced or compulsory labour in all its forms within the shortest possible period”.

The severity of the offence of forced labour is reflected in Article 25, which specifies that “[t]he illegal exaction of forced labour or compulsory labour shall be punishable as a penal offence,” and the authorities must ensure that “the penalties imposed by law are really adequate and are strictly enforced”.

Although the new Protocol to Convention No.29 has not yet come into effect10, it is important to note that it recognizes the link between voluntary migration, forced labour and trafficking. This is significant as many instances of exploitation in forced labour, slavery and related practices can occur when migrants (from neighbouring countries enter South Africa for example), in search of economic opportunities and decent work end up in forced labour or debt bondage to pay off unscrupulous recruitment agents, or find their identity documents withheld and freedom of movement restricted.

The Protocol provides practical guidelines to member states for the implementation of the obligation to suppress the use of compulsory labour, but also gives recognition to the changed global context in which it is extracted primarily through human trafficking. It thus gives impetus to the sustained and effective elimination not only of forced labour but also of human trafficking. The Protocol does so by affirming in article 1(3) the definition of forced labour in Convention No. 29 but provides in addition that “the measures referred to in this Protocol shall include specific action against trafficking in persons for the purposes of forced or compulsory labour”. It

10 At the time of writing, the Protocol was not yet in force but had been ratified by the Niger on 14 May 2015. It will come into force once ratified by a second member State.

requires ratifying states to ensure the “elimination of forced labour in all its forms and manifestations” (article 1(1)) and to ensure that the suppression of forced or compulsory labour is “effective” and “sustained”.

In this regard it supplements Convention No. 29 by outlining the key obligations on ratifying member States, which relate to the obligation to prevent, protect against and provide effective and adequate remedies for forced labour rights violations. These obligations can be summarized as follows :

Prevent  Extend law coverage and enforcement to all workers and sectors;  Strengthen labour inspection;  Protect workers from abuses during the recruitment process;  Supporting due diligence by public and private sectors;  Address root causes

Protect  Effective measures for the identification and rehabilitation of victims;  Protect victims from punishment for unlawful activities that they were compelled to commit.

Remedy  Ensure victims’ access to appropriate and effective remedies, such as compensation  Take specific action against trafficking in persons for forced labour  Implement measures in consultation and coordination with employers’ and workers’ organizations  Ensure international and cooperation to prevent and eliminate forced labour

A simple typology of forced labour used by ILO since 2005 (Source :ILO, The Economics of Forced Labour, 2014)  Forced labour imposed by the state covers all forms of work exacted by public authorities, military or paramilitary, compulsory participation in public works and forced prison labour (within the scope of ILO Conventions No. 29 and No. 105);  Forced labour imposed by private agents for sexual exploitation covers any commercial sexual activity, including pornography, exacted from the victim by fraud or force; and,  Forced labour imposed by private agents for labour exploitation includes bonded labour, forced domestic work, forced labour of migrants in many economic sectors and work imposed in the context of slavery or vestiges of slavery. Forced illicit activities such as forced begging for gangs for example are also included.

The SADC policy framework for forced labour and human trafficking

The SADC policy framework specifically addressing forced labour and human trafficking includes :  The Strategic Indicative Plan of the Organ on Politics, Defence and Security Co-operation (SIPO), which is the unit responsible for implementing a key result area (KRA - 4) on human trafficking, which is one of the result areas for Regional Political Co-operation (RPC)11 in the region.  The Protocol on Gender and Development.  Ten year Strategic Plan of Action to combat trafficking in persons, especially women and children (2009-2019)  SADC Labour Migration Action Plan May 2013.

In the context of their international legal obligations as set out above, SADC member states have an obligation under their international and regional legal

11 A 2013 regional meeting developed a regional consolidated and harmonized work plan for implementation of RPC KRA-4 to address trafficking in persons, especially women and children, in collaboration with other key stakeholders such as the IOM, ILO and the UNODC Regional office for Southern Africa (SARO).

commitments, to developing human trafficking legislation and developing national action plans to specify the actions to be taken to achieve the elimination of forced labour and the combatting of human trafficking. However, various countries are party to African regional human rights instruments and this section describes in brief some of their obligations in this regard.

African Charter on Human and Peoples’ Rights (1981) The African Charter on Human and Peoples’ Rights (also known as the ‘Banjul Charter’) is the foundational document in the African human rights system. A number of rights set out in the Charter are important in the context of human trafficking: Article 4 provides that all persons are entitled to respect for their life and the integrity of their person. Article 5 states that every person has the right to human dignity and prohibits all forms of exploitation and degradation of persons, particularly slavery; slave trading; torture; cruel, inhuman or degrading punishment and treatment. Article 6 guarantees every individual the right to liberty and security of the person. In terms of Article 18(3), States are required to ensure the elimination of discrimination against women and also to ensure the protection of the rights of women and children as stipulated in international declarations and conventions.

The African Commission on Human and Peoples’ Rights, the committee overseeing the implementation of the Charter, has not yet been presented with a specific communication relating to human trafficking. However, the Charter provisions were recently applied by the Economic Community of West African States (ECOWAS) Court of Justice in the matter brought by Hadijatou Mani Koraou against Niger relating to slavery and the government was held accountable for judicial and administrative inaction which resulted in enlavement of Ms Korau.12

African Charter on the Rights and Welfare of the Child (1990) In terms of Article 29(a), States Parties are required to take appropriate

12 Report of the Special Rapporteur on contemporary forms of slavery, its causes and consequences, A/HRC/30/35/Add.1 para 12).

measures to prevent the abduction, sale of, or traffic in children for any purpose or in any form, by any person including parents or legal guardians of the child. States Parties must also take appropriate measures to prevent the use of children in all forms of begging (Article 29(b)). The Charter sets out a range of state duties relevant to the protection of children from trafficking. For example, children must be protected from all forms of economic exploitation and from performing any work that is likely to be hazardous or that may interfere with their physical, mental, spiritual, moral or social development (Article 15(1)). States Parties must also take specific legislative, administrative, social and education measures to protect children from all forms of torture, inhuman or degrading treatment, especially physical or mental injury or abuse, neglect or maltreatment (Article 16(1)). Article 27 requires State Parties to protect children from all forms of sexual exploitation and to take measures to prevent (a) inducement, coercion or encouragement of a child to engage in any sexual activity,(b) use of children in prostitution or other sexual practices, and(c) the use of children in pornographic activities, performances and material.

Protocol on the Rights of Women in Africa The Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa (‘the African Women’s Protocol’) was adopted in 2003 to expand on the rights set out in the Charter, with particular reference to Article 18(3). The Protocol specifically deals with human trafficking under Article 4, which guarantees the right to life and the integrity and security of the person, although certain other provisions, such as Article 3, setting out the right to dignity, are also applicable. Article 4 requires States Parties to take a range of measures to address violence against women, including enacting and enforcing laws to prohibit all forms of violence against women (Article 4(1)(a)). The Protocol expects States to prevent and condemn trafficking in women, prosecute the perpetrators of such trafficking and protect those women most at risk (Article 4(1)(g)). Another measure that is required is to provide adequate budgetary and other resources for the implementation and monitoring of actions aimed at preventing and eradicating violence against

women (Article 4(1)(i)).

SADC Protocol on Gender and Development13 The SADC Protocol on Gender and Development originated from the 1997 SADC Declaration on Gender and Development. An Addendum to the latter document, dealing with violence against women, was accepted in 1998 and called for states to consider the drafting of a legally binding instrument on the prevention of violence against women and children. The Protocol was accordingly adopted in 2008. Articles 20 to 25 in Part 6 deal with gender-based violence and state obligations to address such violence.

Importantly, they attach time-frames to the duties undertaken by states. The key articles deal with legislative requirements, setting out how states should (by 2015) address gender-based violence in legislation. Article 20(5) relates to human trafficking, and requires States Parties to enact and adopt specific legislative provisions to prevent human trafficking, and to provide holistic services to survivors, with the aim of re-integrating them into society. States Parties must also put in place mechanisms by which law enforcement authorities and institutions may eradicate national, regional and international human trafficking networks. Similarly, they must put in place harmonised data collection mechanisms to improve data collection and reporting on the types and modes of trafficking to ensure effective programming and monitoring. States Parties are required to establish bilateral and multilateral agreements to run joint operations against human trafficking in countries of origin, transit and destination. Finally, States Parties must ensure that capacity building, awareness-raising and sensitisation campaigns on human trafficking are put in place for law enforcement officials.

Charter of the Fundamental Social Rights in SADC (2003)

13 At the time of writing, the Protocol had not yet received sufficient ratifications to come into operation (only two ratifications, Namibia and Zimbabwe, could be confirmed). Check if this is correct.

The overall objective of the Fundamental Social rights in SADC Charter is to facilitate through close and active consultations amongst social partners, a spirit conducive to harmonious labour relations within the region.

The Charter promotes the formulation and harmonisation of legal, economic and social policies and programmes, which contribute to the creation of productive employment and opportunities and generation on incomes in Member States. It further promotes labour policies, practices and measures which facilitate labour mobility in labour markets; enhance industrial harmony and increase productivity.

The Charter provides a framework for regional cooperation in the collection and dissemination of labour market information, promotes the establishment and harmonisation of social security standards and health and safety standards at workplaces across the Region. It also promotes the development of institutional capacities as well as vocational technical skills in the region.

As a member of the Southern Africa Development Community (SADC) and the Common Market for Eastern and Southern Africa (COMESA), Zambia, along with all the other member states, has discussed the issue of free movement in the region. Article 5 of the SADC treaty specifically refers to the “progressive elimination of obstacles to the free movement of labour, capital, good and services and people in the region”. Under SADC the Protocol on the Facilitation of Free Movement of Persons was signed in 2005, and will be adopted when two thirds of members have ratified.

Forced labour and human trafficking in Southern Africa

Forced labour and human trafficking occur at the nexus of multiple factors in the region least of all endemic poverty, structural and systemic inequality, systemic discrimination and human rights violations. Unemployment,

particularly amongst vulnerable groups (such as the youth and indigenous communities) and the lack of decent work fuels migration and renders men, women and young people vulnerable to human trafficking or recruitment into criminal activity. Undocumented migrants, driven by economic need, are more generally exposed to human rights violations and often experience discrimination from the local population, while receiving little protection from law enforcement officers. This can be seen in the xenophobic violence which occurred in South Africa and in which migrants, ironically those who are economically active, are targeted. Traditional norms like family patronage in extended families may sometimes increase rather than decrease the vulnerability of children to exploitation and abuse. Young girls in both rural and urban settings are sometimes recruited by relatives or family friends, who force them to work in their domestic households, a common arrangement in extended families, but they are vulnerable to being trafficked for forced labour or commercial sexual exploitation.

Deeply-rooted social practices are said to increase gender inequality and exacerbate the vulnerability of women and children to human trafficking and forced labour. Practices cited in this regard include, for example, the Zimbabwean practice of kuripi ngozi (appeasing the dead spirits) where a member of the family, usually a girl, is married without consent, the use of young boys in Lesotho for herding and chobeliso (marriage related abductions). In South Africa traditional practices, such as ukuthwala – the abduction and forced marriage of young girls, which has been identified as taking place in Lusikisiki in the Eastern Cape and even virginity testing may put women and girls at risk of trafficking.

Most SADC member states are source countries for trafficked persons, while some are used as transit countries for persons destined for other countries within the region or overseas. Some countries, South Africa, Zambia and Seychelles amongst others, are destination countries for migration, smuggling and human trafficking. Forced labour and human trafficking in the SADC region is inextricably linked to migration and the concomitant vulnerabilities it creates for migrants, particularly undocumented migrants, women and

children. The gold, iron ore and platinum mines of South Africa can be said to have been built on the backs of legions of migrant workers from the region. Migrant workers are however vilified and subjected to xenophia, violence, intimidation, threats and experience discrimination and stigmatization. Forced labour in Africa can also reflect long-standing patterns of discrimination against vulnerable groups, sometimes linked to the historical legacy of slavery, such as in Niger and Mauritania in West Africa. Also at risk are people in areas of conflict (with the plight of child soldiers an extreme case in the Democratic Republic of the Congo). Moreover, there is trafficking of people for labour and sexual exploitation, both within and across African countries and to Europe, North America and the Middle East. Women are especially affected.14

Another key issue in the region is the increasing loss of economic opportunity and displacement of communities that is occurring as a result of the increasing role of extractive industries in Africa, as well as the incorporation of local businesses into transnational supply chains. In Zimbabwe the issue of commercial mining licences to foreign diamond mining companies, resulting in loss of work for artisanal miners (for instance in the Marange diamond fields), food insecurity and increasing poverty is said to be fuelling human trafficking and forced labour. IRINNEWS (January 2014) reported that local communities have also been excluded from low-skilled jobs on the mines because companies have branded them as lazy and disobedient, and rely on migrant workers from other provinces instead. A member of the affected community said : “The mines took away pastures and farmland from the locals... This worsened hunger and affected household income, as families traditionally sold some of their crops and livestock to raise money for food, school fees and other basic needs.” (www.irinnews.org/report 97525)

This reflects a need for increased focus on business respect for human rights principles in addition to ensuring States accountability for compliance with customary international human rights norms to end forced labour and other

14 ILO Special Action Programme to combat Forced Labour, The Cost of Coercion : regional perspectives, May 2009.

forms of contemporary slavery and related practices. In this context whilst there is increased focus on the United Nations Guiding Principles on Business and Human Rights, the requirement that businesses undertake due diligence to ensure that they are not promoting or using forced labour (including in global value chains15), is incorporated in that one of the preventive measures the Protocol sets out is “supporting due diligence by both the public and private sectors to prevent and respond to risks of forced or compulsory labour” (art. 2 (e)). The non-binding ILO Recommendation 20316, providing practical guidance on the Protocol, contains a provision on preventive measures, in which States are called on to provide guidance and support to employers and businesses to take effective measures to identify, prevent, mitigate and account for how they address the risks of forced or compulsory labour in their operations or in products, services or operations to which they may be directly linked (section 4 (j)).

Forced labour in conflict zones, for instance in the Democratic Republic of the Congo, has led to increased scrutiny of extractive industries and the supply chains of global corporations. Sourcing of “conflict diamonds” obtained from forced labour and child labour has led to calls for increased accountability. In relation to government procurement, the United States Federal Government produces a list of goods produced through forced or indentured child labour under the Trafficking Victims Protection Act in order to ensure that these goods or services are not the subject of government procurement. The current list (2014) reflects various products from the DRC as well as tobacco from Malawi as “tainted” by forced labour. (This is described in the respective country profile).

Forced labour has tended to receive less attention in Africa than in other

15 See in this regard A/HRC/30/35, Report of the Special Rapporteur on Contemporary forms of Slavery, its causes and consequences, on enforcing the accountability of States and businesses for preventing, mitigating and redressing contemporary forms of slavery. 16 Recommendation on Supplementary Measures for the Effective Suppression of Forced Labour, adopted by the International Labour Conference at its 103rd session, Geneva, 11 June 2014.

regions, in part because of difficulties in collecting reliable information about the extent and nature of the problem. Nonetheless, Sub Saharan Africa is the region with the third highest incidence of forced labour in relation to population, after Asia and Latin America.

Progress has been made albeit slowly. Rising concern about forced labour and human trafficking has led to tougher national laws in recent years as well as action at regional level. Many countries have adopted laws prohibiting human trafficking and forced labour and have taken steps to implement their Decent Work Country Programmes, which, inter alia, provide for measures to create decent work and economic growth. These are described in the specific country reports set out below.

Country reports

The next section provides an overview of the forms and manifestations of forced labour and human trafficking in each of the SADC countries, based on a literature review. Data was obtained from the United States Department of State’s Trafficking in Persons Report 2015 (TIP Report) 17 which covers the 2014 reporting period, various ILO research reports, and the National Prosecuting Authority, Department of Justice and Constitutional Development of South Africa and Human Sciences Research Council’s Research Report Tsireledzani: understanding the dimensions of human trafficking in Southern Africa, March 2010. Unless otherwise, stated the source is the TIP Report. The discrepancy between countries is apparent – for some countries data other than the comments of human rights monitoring and supervisory bodies and the TIP Report was difficult to obtain. This is a gap that needs to be addressed.

17 See www.state.gov/j/tip/rls/tiprpt/

Angola

Legal and institutional framework relating to forced labour and human trafficking

The Constitution of the Republic of Angola guarantees in Article 31 that the moral, intellectual and physical integrity of each person is inviolable, and the Government respects and protects persons and human dignity. Its article 36 states that each citizen has the right to physical freedom and individual safety.

Angola has ratified both Convention No. 29 and Convention No. 105. The government acceded to the Palermo Protocol in 2014 and whilst it has not yet developed a specific anti-trafficking law, it has amended its 1886 Penal Code to prohibit all forms of trafficking in persons. The Code prescribes penalties of eight to 12 years’ imprisonment. Trafficking is criminalized in Chapter III, Articles 19, 20, and 23. Article 19 criminalizes the act of delivering, enticing, accepting, transporting, housing, or keeping of persons for the purposes of sexual exploitation, forced labor, or trafficking of organs, including by force, fraud, or coercion. Article 19 also makes the enticement, transport, or housing of a child for such purposes by any means a trafficking offense; in keeping with international law, it does not require the use of fraud, force, or coercion to prove a trafficking case when a child is the victim.

Slavery and servitude are separately criminalized in Article 18 with sentences of seven to 12 years’ imprisonment.

The Law on the Protection and Integral Development of Children of August 2012 prohibits the exploitation of children under Article 7, and Article 33 prohibits the kidnapping, sale, trafficking, or prostitution of children.

In 2014 the Government passed the Law on the Criminalization of Infractions Surrounding Money Laundering, Law No. 3/14, which protects all children less than 18 years old from human trafficking and forced labor. The new law also penalizes employers or labor agents who confiscate, hide, damage, or destroy workers’ identity documents. The penalty for labor or sex trafficking, including acting as an agent of a trafficker, is 8 to 12 years in prison; custodial adults who are complicit in child trafficking may be subject to 2 to 8 years in prison. The Government’s list of hazardous work, established by Joint Executive Decree No. 171/10, prohibits activities for minors including fireworks production, stone mining, animal slaughter, leather production, paper making, and pornography. However, the hazardous work list does not cover all hazardous activities in which Angolan children are involved, including high- seas fishing, diamond mining, informal market vending, and in street work. Law No. 3/99 contains provisions prohibiting the use of children in drug trafficking, and article 157 of the Penal Code prohibits a child’s custodian from employing the child in prohibited activities.

The General Labour Law also prohibits compulsory work and includes provisions on the prohibition of forced labour.

Angola has established an Intersectorial Committee for the Prevention and Combat of Trafficking in Humans; a National Strategic Action Plan and a National Monitoring Center. The Committee consists of representatives of the Ministries of Justice and Human Rights, MINARS, MAPTSS, Interior, and relevant Government agencies including the Office of the Attorney General, Immigration Services, and the National Police. It will coordinate enforcement efforts on human trafficking, including child trafficking for labor and sexual exploitation.

Angola is party to the Multilateral Cooperation Agreement to Combat Trafficking in Persons, Especially Women and Children in West and Central Africa, and participated in the Ministerial Conference of the Economic Community of West African States (ECOWAS) and the Economic Community of Central African States (ECCAS) against human trafficking, in 2006 in Abuja (Nigeria). This mechanism is said to have contributed significantly to the creation of coordination mechanisms intended to help prevent to combat cross-border trafficking. The purpose of the Agreement is to create a common front national force against trafficking in persons, for the prevention, fight against, elimination and punishment of trafficking in persons through international cooperation. It is also intended to protect, rehabilitate and reintegrate trafficking victims into their environment of origin, when necessary, and to provide mutual assistance in the investigation and arresting of traffickers, through cooperation among the competent authorities of the signing countries. In 2007, in Sao Tome and Principe, Angola participated in the development of the ECOWAS/ECCAS Joint Plan of Action against Trafficking in Persons, Especially Women and Children.

Forms and manifestations of forced labour and human trafficking

Angola is considered a source and destination country for men, women and children subjected to human trafficking and forced labor, and is listed as a tier 2 status country in the TIP 2015 Report18.

Angolans are said to be subjected to forced labour in the agricultural, fishing, construction, domestic service and artisanal diamond mining sectors of the

18 In the TIP Report, the Department of State places each country onto one of three tiers based on the extent of their governments’ efforts to comply with the “minimum standards for the elimination of trafficking” found in Section 108 of the TVPA. While Tier 1 is the highest ranking, it does not mean that a country has no human trafficking problem. On the contrary, a Tier 1 ranking indicates that a government has acknowledged the existence of human trafficking, made efforts to address the problem, and complies with the TVPA’s minimum standards. Each year, governments need to demonstrate appreciable progress in combating trafficking to maintain a Tier 1 ranking.

economy. Forced labour in agriculture is prevalent and largely affects children. Children are also exploited in brickmaking factories and in construction, and reports of children subjected to forced labour in rice production are common. 19 Angolan adults use children under the age of 12 for forced criminal activity, as children cannot be criminally prosecuted. Some Angolan boys are taken to Namibia for forced labor in cattle herding, while others are forced to serve as couriers as part of a scheme to avoid import fees in cross-border trade with Namibia.20

There is also limited evidence suggesting that Congolese migrant children enter Angola for work in diamond-mining districts where they experience conditions of forced labor including commercial sexual exploitation in mining camps. Many of these children are undocumented migrants who are particularly vulnerable human trafficking and forced labour.

Angolan children and women are trafficked within the country and in the SADC region, to Nambia and South Africa, for domestic servitude and commercial sexual exploitation. Human trafficking networks are said to recruit and transport Congolese girls as young as age 12 from the Kasai Occidental province in the Democratic Republic of Congo to Angola where they are subjected to forced labour and other forms of exploitation.21

The 2014 Findings on the Worst Forms of Child Labour under C.182 refers to child labour being used in agriculture, in activities related to planting and picking tomatoes, rice production, fishing and animal herding. However, the actual extent of the problem is unknown or limited evidence is available of these activities.22

The 2014 report cites the involvement of child labour in the following industries: artisanal diamond and coal mining, construction, brick making and transport, but again makes the point that limited evidence of the extent of the problem is available. Child labour in the services sector is said to occur in domestic work, transporting of heavy loads, and street work (which includes car washing and shoe shining).

Research conducted by the ILO in 201023 indicates that during that period, and folowing the protracted war in Angola, child labour in the 5-14 age bracket was widespread. About 9 per cent of children reported working outside their household, with approximately the same ratios for boys and girls. A further 6 per cent (7.4 per cent of girls) were engaged in household chores for more than four hours per day. In addition, work on family farms or other businesses was extensive. While overall 21 per cent of the children said they did this kind of work, the proportion jumped to 33.6 per cent for the under-represented

19 http://www.dol.gov/ilab/reports/child-labor/angola.htm 20 USDS TIP report 2015. 21 2014 Findings on the Worst Forms of Child Labour sourced from www.dol.gov/ilab/reports/child-labor/findings/2014TDA/angola.pdf 22 See US DOL WFCL report 2014. 23 ILO 2010, The Worst Forms of Child Labour in Conflict Settings.

rural sample. Of these rural children, 14.3 per cent said they worked between 20 and 39 hours per week, and a further 4.1 per cent said they worked 40 or more hours per week. Meanwhile, only just over a half of primary-school age children were actually enrolled in school, and attrition was likely to cause a further quarter of this subgroup to fail to complete the fifth grade. The report confirms that “child labour remains ubiquitous in Angola today, although we do not possess any hard numbers. The pervasiveness of poverty, the lack of educational facilities and the absence of social support systems - all legacies of the decades of conflict - mean child labour will continue to be a significant challenge”.

The Report confirmed that the the worst forms of child labour are difficult to quantify in Angola, 24 but cited the following examples of where this was prevalent:

(1)Trafficking of children: Boys are at risk of being sold into servitude through networks that extend into neighbouring countries. The practice of parents sending their (boy) children to Koranic schools in other West African countries, where they will beg under the tutelage of marabouts, can also result in abuse. While the inculcation of religious humility through seeking alms is widely supported, our respondents noted that parental trust can be exploited by those who personally profit from the use of the children's earnings, or who are unduly harsh in enforcing discipline. Another concern with this practice is that it appears to contravene the prohibition on begging enunciated in the African Charter on the Rights and Welfare of the Child (ACRWC) (1990).

(2)Child prostitution: Mainly girls are affected and the ILO research indicates that quantitative measurements are lacking. The research indicates that to some extent, the practice that became established during the civil war, when armed groups on all sides would seek out and often coerce children into prostitution, was continuing.

(3)Drug trafficking: Primarily street children are engaged in this work. Adults in the drug trade use children as go-betweens to make direct contact with retail users. An earlier study had put the number of homeless street children in Angola in 2000 at 24,000 (US Department of Labor, 2004); more recent estimates are not available. While all street children do not work, most presumably do. Their activities range from relatively benign to hazardous, and as we shall see, street life in Angola has added dangers stemming from post-conflict conditions.

24 Ibid. The Angolan research team affiliated with this study confined its data collection to Luanda and the fishing-dependent towns of Lobito and Benguela in the southwest of the country. The goal was to sample street children in Luanda, and children working in fishing and related trades in Lobito and Benguela. In all, 98 children were interviewed, along with 17 parents, and 30 other informants representing children.

(4)Domestic labour: Most domestic workers are girls, and they are employed primarily by relatives. This may explain why this type of work is viewed favorably in Angolan culture, yet it is well known that any domestic worker may be subjected to very long hours or abusive treatment. More research is needed to ascertain the balance between desirable and undesirable outcomes of domestic work including for relatives.

The report concluded with a dire assessment of the situation in which Angolan children are vulernable to forced labour, human trafficking and other forms of exploitation and criminal activity Amongst working children, not all of whom would have been in forced labour or subjected to human trafficking, the report found that street-oriented work performed by children has been made increasingly hazardous by the availability of weapons and street gangs. The report indicates further that family separation is intricately linked to child labour, particularly its worst forms, yet families have proven difficult to reunite in many cases. This may be due to an inability to recognize and remember long-lost family members, but it may also stem from the refusal of parents to accept the return of children who have been living on the street and are seen as "contaminated" by harsh or illegal activities. The children too may refuse to return to their parents, especially after they have experienced the sort of independence that goes with earning their own income, however meagre. Even when a family is reunited, this may not be permanent. Adults are sometimes forced to travel long distances from home seeking economic opportunities, leaving children to fend for themselves; and extreme poverty means some parents are simply unable to provide for children in the household. Finally, the report cited conflict-related factors that can lead to dysfunctional cycles of distrust and hostility between child and parent, such as when children are accused of causing family misfortune by sorcery (which was stated to be a relatively common phenomenon).

Migrant workers are often recruited to work in Angola’s booming construction industry. China, a longstanding partner in Angola, took on a major role in rebuilding the country’s infrastructure after the civil war and many Chinese migrant workers are brought to Angola by Chinese companies that have large construction or mining contracts; some companies do not disclose the terms and conditions of the work at the time of recruitment. Chinese women are recruited by Chinese gangs and construction companies with promises of work, but later are deprived of their passports, kept in walled compounds with armed guards, and forced into prostitution to pay back the costs of their travel. This is said to also apply to Southeast Asian, Namibian, Kenyan, and possibly Congolese migrant workers who are subjected to forced labor in the construction industry in unsafe working conditions and subjected to withholding of passports, threats of violence, denial of food, and confinement to camps.

Migrant workers from the DRC often work illegally in Angolan diamond mines and have experienced conditions of forced labor and forced prostitution.25 They are often isolated, vulnerable and do not have access to any legal protection.26

Comments by ILO Supervisory Bodies

The Committee of Experts (CEACR) 27 in 2014 made a direct request to Angola in regard to Articles 1(1), 2(1) and 25 of Convention NO.29 seeking clarity in relation to the law relating to trafficking in persons.

Law enforcement

The Human Rights Committee (in its periodic review in 2011 of Angola’s compliance with article 8 of the ICCPR which prohibits forced labour and slavery) noted that Angola has begun to take legal measures to close down channels through which children are being trafficked and transported out of the country for the purposes of forced labour or sexual exploitation.

There have as yet been no convictions for forced labour or human trafficking, although Angolan law enforcement officials identified 17 potential child trafficking victims in 2014.28

The TIP 2015 Report indicates that, in 2014, the government reported on law enforcement efforts to address potential trafficking crimes, including its investigation of 18 potential trafficking cases, compared with two in the previous reporting period. Of these, the government initiated prosecution in five cases—the first anti-trafficking prosecutions initiated since 2011. These anti-trafficking law enforcement efforts appeared to focus on investigating potential child trafficking crimes involving transnational movement.

The government did not report on progress to initiate prosecutions and convict suspected trafficking offenders from investigations during previous reporting periods, including the 2013 arrest of a Chinese national suspected of fraudulently recruiting children and young adults from Huila to Zaire province for construction work or the 2013 case involving 54 children intercepted en route from Huila to Namibe province, allegedly for work on tomato farms. It has never convicted a trafficking offender. The government did not report any investigations, prosecutions, or convictions of government officials complicit in human trafficking offenses.

25 US Department of State: Trafficking in Persons Report June 2013. 26 ILO Issue Brief on Angola, date??. 27 See Direct Request (CEACR) - adopted 2014, published 104th ILC session (2015) Forced Labour Convention, 1930 (No. 29).

28 TIP 2015 Report.

The TIP 2015 Report notes that due to a culture of corruption, law enforcement efforts were stymied in many areas, including counter-trafficking.

The government maintained a labor agreement with the Government of China that requires Chinese companies to follow Angolan labor laws. During the year, it collaborated with the Kenyan government on the investigation of an alleged trafficking network involving 11 Kenyan victims and a Kenyan-based construction company in Luanda; officials investigated the Luanda-based owner of the construction company, who remained under investigation but was not in police custody at the end of the reporting period. Whilst the government investigated the owner of a construction company for forced labour in 2014, this did not result in prosecution, and there has been no systematic investigation of abuses in the Angolan construction sector or prosecutions for forced labor of either foreign nationals or Angolans.

In 2014 Angola employed 187 labor inspectors. 29 According to the Government, the number of inspectors is insufficient to effectively monitor the labor market. Inspectors, especially those outside of Luanda, lack necessary resources and sufficient training to carry out their work). The research conducted for the TIP report did not find information on the number of investigators responsible for investigating cases of the worst forms of child labor.

The National Children's Institute (INAC) collects information from the provinces on the number of child labor cases; however, no information is available regarding child labor inspections, violations, citations, and penalties.30 The National Police and Immigration Services refer victims of the worst forms of child labor to INAC and MINARS to receive social services, and victims of child trafficking are referred to INAC’s Child Support Centers. Protection and prevention measures

Capacity building was prominent throughout the reporting period, as the government worked aggressively to train its officials on the 2014 anti- trafficking law. The government, at times in partnership with international organizations, trained over 400 officials during the year, compared with 308 in 2013. For example, in November 2014 it organized and funded a two-day seminar for 120 magistrates on combating trafficking. In July 2014, the police, in partnership with INTERPOL, organized a workshop for 34 police officials on combating trafficking; additional sessions were held for provincial police throughout the country. In addition, national police academy trainings continued to include human trafficking provisions; 144 officials received this training in 2014.

29 TIP report. 30 US DOL report on WFCL

The government made minimal efforts to protect victims. The government identified and rescued 17 potential trafficking victims, compared with 21 potential trafficking victims identified the previous year. The National Institute of Children (INAC) assisted 15 child victims of sex and labor trafficking during the reporting period, providing food, shelter, education, and psychological assistance where available. In one case, the police removed a child forced to work on a farm and referred her to a child support center in Huila, which provided some legal and psychological assistance, as well as basic education to children. In a sex trafficking case, the Director of the Office Against Domestic Violence of the Department of Criminal Provincial Investigations in Cabinda provided shelter to a 14-year-old trafficking victim at her home. The child received psychological assistance and was able to go to school during her stay at the director’s home. The government did not proactively identify any adult trafficking victims in 2014, including among the large number of Chinese and foreign laborers in the Angolan construction sector, where exploitation is prevalent.

INAC oversaw child protection networks in all 18 provinces that offered health care, legal and social assistance, and family reunification for crime victims under the age of 18. The Ministry of Social Assistance and Reintegration (MINARS), the Ministry of Family and Women’s Promotion, and the Organization of Angolan Women operated 30 counseling centers, seven multipurpose shelters, and 52 children’s shelters that trafficking victims could access. Vulnerable women in safe houses receive legal counseling and some receive training; however, it was unclear whether any of these services were provided to trafficking victims during the reporting period. All government-run assistance centers are intended to provide some level of legal and psychological assistance to victims. The government coordinated with an international organization to provide an additional 11 victims with support, including shelter and repatriation to Kenya; however, the government did not provide funding or resources to support such efforts.

Law enforcement, immigration, and social services personnel generally did not make systematic efforts to identify victims and lacked a mechanism for screening individuals in prostitution or undocumented migrants. Neither documented nor undocumented foreign workers, including among the Chinese population, were screened for trafficking victimization and may have been arrested and deported for unlawful acts committed as a result of having been subjected to trafficking, including immigration and employment violations. For example, if during labor inspection workers were found to be without work permits, authorities fined employers and arrested and deported the workers. On occasions when authorities identified trafficking victims among Chinese laborers, the Angolan government routinely repatriated them to China without providing care or ensuring proper treatment upon their arrival in China. Angolan law does not provide foreign trafficking victims with legal

alternatives to their removal to a country where they may face hardship or retribution. The government did not actively encourage victims to participate in trafficking investigations during the reporting period.

Recommendations

In order to effectively suppress the use of forced labour Angola should:

 Use the revised penal code provisions to investigate and prosecute forced labor and sex trafficking offenses;  Continue to train law enforcement officials on the applicable law and prevention and protection mechanisms;  Develop systematic procedures for the identification and referral of trafficking victims and train officials on such procedures; Ensure provision of shelter, counseling, and medical care to both child and adult victims either directly or in partnership with NGOs;  Collect and analyze anti-trafficking and forced labour data;  Conduct nationwide anti-trafficking public awareness campaigns;  Systematically investigate forced labour and trafficking for the purposes of labour exploitation in the Angolan construction sector and prosecute offending individuals and companies.

BOTSWANA

Legal framework related to forced labour and human trafficking

The 2014 Anti-Human Trafficking Act, which came into effect on 1 January 2015 prohibits all forms of trafficking, which contains a broad definition of “trafficking” and “crimes of child labour”. It also provides for the creation of an inter-ministerial committee to serve as a national coordinating body for anti- trafficking policy and initiatives.

The 2009 Children’s Act prohibits child prostitution and child trafficking, but does not define child trafficking. Section 57 prescribes penalties of two to five years’ imprisonment for facilitation or coercion of children into prostitution, while Section 114 prescribes penalties of five to 15 years’ imprisonment for child trafficking.

The 1998 penal code prohibits most forms of trafficking in Sections 150-158 (forced prostitution), Section 256 (kidnapping for slavery), and Sections 260- 262 (slavery and forced labor). Stringent penalties are prescribed for these offences ranging from seven to 10 years’ imprisonment.

Forms and manifestations of forced labour and human trafficking

Botswana is a source, transit, and destination country for women and children subjected to forced labor and sex trafficking and is listed as a Tier 2 Watch list country in the TIP 2015 Report.

The TIP 2015 Report also states that there is limited data available and no comprehensive international or domestic study of forced labour or human trafficking trends within the country has been undertaken.

Residents of Botswana most susceptible to trafficking are unemployed women, those living in rural poverty, agricultural workers, and children. Some parents in poor rural communities might send their children to work for wealthier families as domestic servants in cities or in agriculture and cattle farming in remote areas. Young Batswana serving as domestic workers for extended family may be denied access to education and basic necessities or subjected to confinement or verbal, physical, or sexual abuse—conditions indicative of forced labor. Batswana girls and women are exploited in prostitution within the country, including in bars and along major highways by truck drivers.31

The TIP 2015 Report refers to information provided by NGOs to the effect that employment conditions on private farms and cattle posts in Botswana’s rural west might constitute forced labor for both adults and children of the San indigenous people. Labour inspectors however investigated rural farms for child labor in 2014 and found no instances of children working in 2014, but it is not clear whether the inspections were comprehensive.

Concerns exist that undocumented migrant children from other parts of the SADC region might be vulnerable to trafficking in Botswana, although no data appears to exist in this regard.

Comments by ILO supervisory bodies

The CEACR has issued a Direct Request to the government under Article 2(2)(c) of the Forced Labour Convention, relating to work of prisoners for the benefit of private individuals.32 The Committee previously noted that under section 95(1) of the Prisons Act (Cap. 21:03), a prisoner may be employed

31 TIP report country profile 2015. 32 Direct Request (CEACR) - adopted 2014, published 104th ILC session (2015) Forced Labour Convention, 1930 (No. 29) -

outside a prison under the immediate order and for the benefit of a person other than a public authority. The Government indicated that this section had never been implemented in practice, and that the conditions of work, earning schemes and contract guidelines of prisoners had not yet been developed to provide for the engagement of prisoners in work for private individuals. The Government also indicated that prisoners assigned to work for private parties shall do so at their own free will and that their payment would be based on the prescribed earnings scheme. The Committee noted the Government’s statement that consultations with the relevant stakeholders are still under way and that the Committee would be informed on the progress made in this regard. The Committee reiterated its hope that the necessary measures will be taken to amend section 95(1) of the Prisons Act, in order to ensure that any work or service performed by prisoners for private parties is carried out voluntarily, with their formal, freely given and informed consent, such consent being authenticated by conditions of work approximating those of a free labour relationship.

Law enforcement

There have been no investigations or prosecutions of trafficking cases involving Batswana victims subjected to trafficking internally, including children exploited in prostitution or domestic servitude.

Prevention and protection measures

In 2014, the government facilitated four workshops for law enforcement officers in which about 300 police officers were trained on human trafficking for labour and sexual exploitation. Judicial authorities lectured at the Botswana Police College to sensitize incoming recruits on trafficking issues. While the government developed a national action plan to train officials on the new anti-trafficking law, it failed to implement this plan in 2014.

Prevention efforts included conducting a government sponsored a radio campaign to familiarize the general public with the issue of trafficking, coupled with information on cross-border movement and illegal migration.

The government identified 26 Zimbabwean children as potential trafficking victims after they were initially detained for immigration violations. Law enforcement officials, in partnership with an international organization, coordinated with the Department of Social Services to refer the 26 children to an NGO-run shelter until their repatriation to Zimbabwe. The measures contained in the Anti-Trafficking Act for victim referral and victim identification have not yet been implemented and thus were not used.

The law permits the government to grant foreign national victims extended stay in Botswana for an undetermined period, although this provision has not yet been utilized this provision in 2014. The Anti-Trafficking Act does not include provisions to protect trafficking victims from punishment for unlawful acts committed as a direct result of their being subjected to trafficking; the lack of formal identification procedures for trafficking victims likely resulted in victims remaining unidentified in the law enforcement system. There were no measures designed to encourage victims to assist in the investigation and prosecution of traffickers.

Recommendations

In order to effectively suppress the use of forced labour and combat human trafficking Botswana should:

 Increase efforts to investigate and criminally prosecute suspected traffickers using the new law for both internal and transnational trafficking cases;

 Develop and implement a robust system to proactively identify victims of forced labour and human trafficking and refer them to appropriate social services;

 Train law enforcement, immigration, and social welfare officials on identification procedures to screen vulnerable populations, including women in prostitution and undocumented migrants, in order to identify for potential trafficking;

 Develop guidelines for specific protective services for victims of forced labour and human trafficking in partnership with civil society;

 Conduct public awareness raising campaigns;

 Collect data on anti-trafficking law enforcement. This should include a comprehensive study of forced labour and human trafficking trends.

DEMOCRATIC REPUBLIC OF THE CONGO (DRC)

Legal and institutional framework related to forced labour and human trafficking

Congo has passed the 2006 Elimination of Forced Labour Act.

Contrary to international law, adult forced labor is not criminalized although indentured servitude is prohibited by the Constitution.

The July 2006 sexual violence statute (Law 6/018) specifically prohibits sexual slavery, sex trafficking, child and forced prostitution and prescribes penalties for these offenses ranging from five to 20 years’ imprisonment.

The Child Protection Code (Law 09/001) prohibits all forms of forced child labor and child prostitution, and prescribes penalties of 10 to 20 years’ imprisonment for sexual slavery. Cases of forced child labor, debt bondage, and child commercial sexual exploitation have penalties of one to three years’ imprisonment.The forced enlistment of children into the armed forces and the police is a criminal offence for which penalties of 10 to 20 years’ imprisonment can be imposed. The Code is yet to be fully implemented because the necessary decrees from several ministries have not yet been passed.

Forms and manifestations of forced labour and human trafficking

The Democratic Republic of the Congo (DRC) is a source, destination, and possibly a transit country for men, women, and children subjected to forced labor and human trafficking for sexual exploitation. It is on the Tier 2 watch list according to the TIP 2015 Report.

Due to the ongoing conflict, more than 2.6 million people were displaced in the DRC, and displaced persons in Katanga, North Kivu, and South Kivu provinces remain particularly vulnerable to abduction, forced conscription, forced labour and sexual violence by armed groups and government forces. Poor infrastructure, limited antitrafficking resources and expertise, and reports of corruption continued to impede official efforts to address trafficking.

In 2014 local and foreign armed groups, such as the Democratic Forces for the Liberation of Rwanda (FDLR), various local militias (Mai-Mai), Nyatura, Raia Mutomboki, Nduma Defence for Congo (NDC), Force for the Defense of Human Rights (FDDH), the Allied Democratic Forces, and the Lord’s Resistance Army (LRA), continued to abduct and forcibly recruit Congolese men, women, and children as young as 7 years old to serve as forced labour in their armies. They were subjected to forced labour as guards, porters, cleaners and cooks, combatants, messengers, and spies; women and girls were forced to marry and/or serve as sex slaves for members of the armed groups. Some, including children, were also forced to commit crimes for their captors, such as looting, extortion, and stealing. In part due to weak command and control structures, some elements of the Congolese national army

(FARDC) and security forces deviated from government policy and forced men and women, including internally displaced persons, to carry supplies, equipment, and looted goods from mining villages. They used threats and coercion to force men and children to mine for minerals, turn over their mineral production, or pay illegal “taxes.”

In addition, it was reported that, contrary to government policy, some FARDC commanders provided financial and logistical support, including arms and ammunition, for armed groups, such as FDLR and Mai Mai militia, which routinely engaged in human trafficking. The UN reported at least 1,030 children were separated from armed groups in 2014; no cases of child recruitment by the FARDC were identified during the reporting period—a significant change from years of government use of child soldiers. The UN documented 241 cases of children who were both recruited and separated from armed groups in 2014, potentially including foreign children; 63 were from the FDLR, 32 from the Mai Mai Nyatura, 19 from the Raia Mutomboki, 16 from the LRA, and the remainder were from other Mai Mai groups. Most children were used in multiple capacities such as cook, porter, combatant, sex slave, or laborer.

The majority of trafficking is internal and, while much of it is perpetrated by armed groups and rogue elements of government forces outside official control in the country’s unstable eastern provinces, incidents of trafficking occurred throughout all 11 provinces.

Men and women working in unlicensed Congolese artisanal mines, many of whom began mining as children, are reported to be subjected to forced labor, including debt bondage, by mining bosses, other miners, family members, government officials, armed groups, and government forces. Many miners are in effet in bonded labour, forced to continue working to pay off constantly accumulating debts for cash advances, tools, food, and other provisions at undisclosed interest rates, and intergenerational debt coninues to exist as some miners inherit the debt of deceased family members.

Some members of Batwa, or pygmy groups, are subjected to conditions of forced labor, most commonly in agriculture, but also in mining and domestic service in remote areas of the DRC.

Some Congolese women are forcibly prostituted in brothels or informal camps, including in markets, bars, and bistros in mining areas, by loosely organized networks, gangs, and brothel operators.

Congolese women and girls are subjected to forced marriage following kidnapping or rape, or are sold by family members for a dowry or relief of a debt, after which they are highly vulnerable to domestic servitude, forced labour and/or sex trafficking.

Migrant Congolese women and children are subjected to exploitation and abuse in several countries in Africa, the Middle East, and Europe, in the form

of trafficking, domestic servitude and/ or forced labor in agriculture and diamond mines. They may transit through the DRC en route to Angola or South Africa.

Some Angolan undocument migrants enter the DRC to work in Bas-Congo province and are vulnerable to exploitation in forced labor.

Children are engaged in forced and exploitative labor in small-scale agriculture, informal mining, and other informal sectors throughout the country. Children are subjected to forced and exploitative labor in the illegal mining of diamonds, copper, gold, cobalt, ore, and tin, as well as the smuggling of minerals. Children living on the streets who engage in vending, portering, and unloading trucks are vulnerable to forced labor, including being used for illicit drug transactions, and many of the girls are exploited in sex trafficking. Local observers suspect homeless children known as “chegues”, acting as beggars and thieves on the streets of Kinshasa, are controlled by a third party. Children in domestic service work long hours, and some are subjected to sexual abuse and exploitation—conditions indicative of forced labor. Girls in Bas-Congo province are coerced into prostitution by family members or transported to Angola for sexual exploitation.

Forced labour and trafficking in the mining sector is said to have risen sharply. SADC members Zambia, Zimbabwe, and the DRC have been identified as home to adults and children who work in mines and find themselves in situations of debt bondage or trafficking. It has been well documented that demand for precious stones can fuel guerrilla groups mining ‘blood diamonds’.

Increasingly, forced labour in mining is being linked to multi-national corporations in search of precious metals such as gold, or for those minerals key to mobile phone production, such as coltan. The CEACR has noted the prevalence of forced labour in coltan mining.33

The extraction of minerals through forced labour and in some instances forced child labour has led to the listing of coltan, amongst other minerals, as products of forced labour.

In addition, the List of Products Produced by Forced or Indentured Child Labor maintained by the ILAB of the US Department of Labour, which lists products and their source countries which it has a reasonable basis to believe are produced by forced or indentured child labor, pursuant to Executive Order 13126, repeated the listing of the following minerals from the DRC :

CASSITERITE (TIN ORE) There are reports that children ages 5-17 are forced to work in the production of cassiterite, or tin ore, in some mines in the Democratic

33 From ILO Lusaka report

Republic of the Congo. Reports from NGOs and the U.S. Department of State indicate that many children have been identified working in conditions of forced labor in the mines in Eastern Congo, particularly in North and South Kivu. Some children are forced to work at the mines with their families in situations of bonded labor, while other children are sent away to the mines by their parents to pay off the family's debt. These children are paid little, if at all. In addition, many mines are controlled by military officers or armed groups, which are known to round up villagers, including children, at gunpoint and force them to work with threats of violence. These forcibly-recruited children do not have freedom of movement and do not receive payment for their work. COLTAN (TANTALUM ORE) There are reports that children ages 5-17 are forced to work in the production of coltan, or tantalum ore, in some mines in the Democratic Republic of the Congo. Reports from the U.S. Department of State and NGOs state that many children have been identified working in conditions of forced labor in the mines in Eastern Congo, particularly in North and South Kivu. Some children are forced to work at the mines with their families in situations of bonded labor, while other children are sent away to the mines by their parents to pay off the family's debt. These children are paid little, if at all. In addition, many mines are controlled by military officers or armed groups, which are known to round up villagers, including children, at gunpoint and force them to work with threats of violence. These forcibly- recruited children do not have freedom of movement and do not receive payment for their work. GOLD There are reports that children ages 10-16 are forced to work in the production of gold in some mines in the Democratic Republic of the Congo. Based on the most recently available NGO evidence, thousands of children are working in conditions of forced labor in the mines in Eastern Congo, particularly in North and South Kivu. Some children are forced to work at the mines with their families in situations of bonded labor, while other children are sent away to the mines by their parents to pay off the family's debt. Child miners are paid little if at all. Many mines are controlled by military officers or armed groups which force children to work. Some children are abducted to work in the mines. WOLFRAMITE (TUNGSTEN ORE) There are reports that children ages 5-17 are forced to work in the production of wolframite, or tungsten ore, in some mines in the Democratic Republic of the Congo. Based on estimates from NGOs and the U.S. Department of State, hundreds of children are working in conditions of forced labor in the mines in Eastern Congo, particularly in North and South Kivu. Some children are forced to work at the mines with their families in situations of bonded labor, while other children are sent away to the mines by their parents to pay off the family's debt. These children are paid little, if at all. In addition, many mines are controlled by military officers or armed groups, which are known to round up villagers, including children, at

gunpoint and force them to work with threats of violence. These forcibly- recruited children do not have freedom of movement and do not receive payment for their work.

Law enforcement

The TIP 2015 Report states the government took significant steps to hold accountable officials complicit in trafficking through its conviction of FARDC and police officials for sex slavery. The government also arrested armed group commanders for child recruitment. In addition to continued efforts to implement the UN-backed action plan to end FARDC abuses against children, including child soldiering, and cooperate with international organizations to ensure screening, identification, and transfer of child soldiers separated from armed groups to social service organizations, all evidence appeared to indicate the government ceased its recruitment and use of child soldiers during the year.

Despite these measures to address trafficking abuses perpetrated by officials, the government reported negligible efforts to address labor and sex trafficking crimes implicating or affecting the general public, by prosecuting traffickers, identifying victims, providing protection services, or referring them to NGO care.

The government’s ability to enforce its laws does not extend to many areas of the country where trafficking occurs. In addition, awareness of the various forms of trafficking among law enforcement is limited and judges, prosecutors, and investigators often lacked adequate training and resources to conduct investigations and try cases.

The government reported continuing investigations initiated in the previous year involving cases of transnational sex trafficking of Congolese women to Lebanon and Kuwait; however, they did not result in prosecutions or convictions during the reporting period. The government’s efforts to investigate and prosecute sex and labor trafficking crimes implicating or affecting the general public appeared negligible, as all reported law enforcement action initiated in 2014 involved officials or abuses within the FARDC.

Impunity for trafficking crimes by the security forces remained a challenge; nonetheless, the government convicted two highranking FARDC officers for sexual slavery and several other crimes and prosecuted a Congolese National Police (PNC) officer for abducting and subjecting a 13-year-old girl to sexual slavery. Punishment for one FARDC officer was 10 years’ imprisonment; sentencing for the other convicted offenders remained pending or the information was not available. In addition, the FARDC arrested and detained at least two commanders of armed groups for recruitment and use of child soldiers; two other commanders of armed groups arrested in the previous reporting period remained in detention for similar charges. Bosco Ntaganda, the former commander of the armed group M23 and formerly a FARDC

commander, is currently on trial at the International Criminal Court for trial for crimes against humanity and war crimes, including conscription of children and using them to fight and for sexual slavery.

Prevention and protection measures

In 2014, the government trained approximately 1,514 FARDC soldiers and 183 PNC officers on issues related to child recruitment and child protection. The government did not provide specialized training to officials on combating other forms of trafficking, but the Congolese National Police and other DRC law enforcement agencies received training in human trafficking from international donors.

The government did not report the number of victims of sex trafficking identified and it did not identify any victims of forced labor. The government lacked procedures for proactively identifying victims of trafficking among vulnerable groups, such as children living and working on the streets, women in prostitution, and men, women, and children working in artisanal mining, and for subsequently referring victims to protective services. Other than specialized services for former child soldiers, NGOs continued to provide the limited shelter, legal, medical, and psychological services available to trafficking victims. An NGO working with trafficking victims in eastern DRC reported providing assistance to 66 victims of forced labor and/or sex trafficking during the last three months of 2014. The government continued to cooperate with UN and NGO child protection partners to implement the 2013 National Disarmament, Demobilization, and Reintegration Plan (DDR III), through which male and female child soldiers identified during screening after an armed group surrenders are transferred immediately to UNICEF for processing and services. During this process, the National Demobilization Agency, in cooperation with United Nations Organization Stabilization Mission in the DRC (MONUSCO) and UNICEF, continued to separate and transport identified children to NGO-run centers for temporary housing, care, and vocational training prior to returning them to their home communities when it was deemed safe for reintegration.

In 2014, the government demonstrated continued progress in implementing key instruments intended to address the use of child soldiers by the government, including the UN-backed action plan, signed in October 2012, to end recruitment and use of child soldiers and the 2013 directives imposing severe sanctions against FARDC members found guilty of any of the six grave violations against children during armed conflict, including child soldiering.

The joint technical working group overseeing implementation of the UN- backed plan held 12 meetings during the year, established technical working groups in three provinces (North Kivu, South Kivu, and Orientale), and the President appointed a personal representative to lead work against sexual violence and child recruitment. UN partners assisting with implementation of

the plan reported awareness of the directives among FARDC commanding officers increased, the recruitment of children by the FARDC significantly decreased, and access of UNICEF and other child protection personnel to troops, training facilities, and recruitment sites for screening and separation as child soldiers continued to improve. Government cooperation with the UN and other child protection actors resulted in the identification of more than 300 underage applicants who were prevented from joining the FARDC. In addition, the Mines Ministry, in cooperation with representatives of the PNC, international organizations, private industry, and civil society, piloted a program to provide baseline certification indicating minerals from artisanal mines are conflict-free, including free of child labor and not controlled by criminal Congolese army elements or armed groups. Through this process, during the reporting period more than 100 mines received a “green” or positive rating following the baseline assessment; however, the program does not include protocols for identifying, referring, or assisting adult or child victims of forced labor removed from inspected mining sites. The government did not increase efforts to establish the identity of local populations, and low rates of birth registration continued to contribute to individuals’ vulnerability to trafficking. The National Ministry of Labor, responsible for inspecting worksites for child labor, remained understaffed and did not identify any cases of forced child labor in 2014. Inspectors had limited presence outside Kinshasa and often lacked transportation or resources to carry out their work. The government took no measures during the reporting period to reduce the demand for forced labor or commercial sex acts. The government did not provide anti-trafficking training or guidance for its diplomatic personnel34.

Comments from human rights monitoring and supervisory bodies

Forced Labour and human trafficking formed the basis of concerns expressed by the CEACR while armed conflict was still prevalent 35 . The CEACR observed that this situation concerned constitute gross violations of the Forced Labour Convention, “since the victims are forced to perform work for which they have not offered themselves voluntarily, under extremely harsh conditions, combined with ill-treatment which may include torture and death, as well as sexual exploitation’. It was noted by both the Confederation of Trade Unions of Congo (CSC) and the ITUC to the CEACR that ‘practices of abduction of women and girls and, to a lesser degree, of men and boys with a view to their being used for forced labour and sexual slavery by the armed groups’ was in as well as ‘elderly women’ being abducted for domestic work’. At the time the ITUC also referred to several cases of the forced enrolment of boys and young men by various armed groups, in particular in the province of North Kivu. The ITUC listed several attacks carried out by these groups in 2012 in various communities in this province, during which violence was systematically used to force civilians to transport arms, ammunition, booty from looting and other provisions up to the front line of the conflict.

34 TIP 2015 Report. 35 ILO General Survey 2007.

However, the conflict and its resultant exploitation in forced labour and sexual exploitation appears to be continuing. More recently, the Committee noted 36 the observations made by the Confederation of Trade Unions of Congo (CSC) on the application of the Convention, received on 28 August 2014 relating to Articles 1(1) and 2(1) of the Forced Labour Convention, as well as reports from the International Trade Union Confederation and various United Nations human rights bodies relating to cases of abduction of women and children with a view to their use as sexual slaves; the imposition of forced labour related to the illegal extraction of natural resources in many resource-rich areas, principally in Orientale Province, the Kivus and North Katanga; and abductions of persons to force them to participate in activities such as domestic work, wood cutting, gold mining and agricultural production for the benefit of armed groups. While being aware of the complexity of the situation and the efforts made by the Government to re-establish peace and security, the Committee recalled that failure to comply with the rule of law, the climate of impunity and the difficulties experienced by victims in gaining access to justice contribute to the continued perpetration of these serious violations of the Convention.The Committee noted that following the Stabilization Mission in the Democratic Republic of the Congo (MONUSCO), the government had taken back the territories which had been under the control of armed groups and has prosecuted perpetrators of crimes committed against the civilian population. There was still a need to ensure adequate protection for victims, and to reinforce labour inspection services, particularly in mining areas.

The Committee noted that, in its communication of August 2014, while recognizing the efforts made by the Government to combat the massive violations of human rights, that the CSC confirmed that forced labour persists and remains a serious concern, as it is intensifying. The CSC refers, by way of illustration, to the events of July 2014 in Ituri (Orientale Province), where an

36 Follow up to the discussion of the Committee on the Application of Standards (International Labour Conference, 103rd Session, May–June 2014)

armed group abducted women and children to subject them to sexual exploitation and forced labour in the extraction and transport of minerals. It adds that the measures to punish those responsible for these acts are neither firm nor effective, and impunity encourages the propagation of such practices. The Committee requested the Government to take measures to protect victims and to ensure their reintegration.

In a direct request under Articles 1(1) and 2(1) of the Convention the CEACR 37 questioned the continued use of forced labour in cases of vagrancy. The Committee noted that pursuant to the Decree on vagrancy and begging of 23 May 1896 persons may be arrested, judged by a court and convicted of vagrancy or of begging. The court may decide to put them at the Government’s disposal for a certain period by placing them in an establishment. Able-bodied persons thus placed are forced to work in roadworks, agriculture, maintenance, cleaning, buildings and road construction, or to perform other general interest services (section 7 of the General Government Order of 26 May 1913). The Committee recalled that the laws which oblige all able-bodied citizens to be gainfully employed under the menace of imposition of penal sanctions are incompatible with the Convention, and that the laws, which define vagrancy in such general terms that they may serve directly or indirectly as a means of forcing persons to work, should be amended so that penal sanctions are limited to the cases where the public order is disturbed by an offender who refrains from working, but who is also engaged in any unlawful activity as a means of subsistence. The Committee noted the Government’s indication that vagrancy is an offence exclusively related to juvenile justice, and that begging only constitutes an offence to the extent it harms other people. The Committee urged the Government to take the necessary measures to repeal the legislation which allows putting vagrants who do not disturb public order at the disposal of the Government, which may, in its entail the forced exaction of labour.

Forced labour affecting indigenous people or “Pygmies” was also raised by the CEACR reiterating concerns expressed by the United Nations Committee on the Elimination of Racial Discrimination and the Committee on Economic, Social and Cultural Rights that “Pygmies” continue to suffer extreme forms of

37 Direct Request (CEACR) - adopted 2014, published 104th ILC session (2015) Forced Labour Convention, 1930 (No. 29) - Democratic Republic of the Congo (Ratification: 1960) Direct Request (CEACR) - adopted 2014, published 104th ILC session (2015)

societal marginalization in particular with regard to their access to identity documents, education, health and labour and are sometimes subjected to forced labour. The CEACR requested the Government to indicate the measures adopted to combat the social marginalization of “Pygmies” with a view to ensuring that their situation of social vulnerability does not result in them becoming victims of forced labour.

In regard to Article 25 of Convention No. 29, relating to the imposition of criminal penalties, the Committee recalled that, with the exception of section 174(c) and (e) regarding forced prostitution and sexual slavery, the Penal Code does not establish appropriate criminal penalties to penalize the imposition of forced labour. Moreover, the penalties established by the Labour Code in this respect are not of the dissuasive nature required by Article 25 of the Convention (section 323 of the Labour Code establishes a principal penalty of imprisonment of a maximum of six months and a fine, or one of these two penalties). The Committee expressed the firm hope that the Government will take the necessary measures for the adoption in the very near future of adequate legislative provisions so that, in accordance with Article 25 of the Convention, effective and dissuasive criminal penalties can be applied in practice on persons exacting forced labour.

The Committee has also requested the repeal of legislation allowing the exaction of work for national development purposes, as a means of collecting unpaid taxes, and by persons in preventive detention. For several years, the Committee has been requesting the Government to formally repeal or amend the following legislative texts and regulations, which are contrary to the Convention:  – Act No. 76-11 of 21 May 1976 respecting national development and its implementing order, Departmental Order No. 00748/BCE/AGRI/76 of 11 June 1976 on the performance of civic tasks in the context of the National Food Production Programme: these legal texts, which aim to increase productivity in all sectors of national life, require, subject to criminal penalties, all able-bodied adult persons who are not already considered to be making their contribution by reason of their employment

to carry out agricultural and other development work, as decided by the Government;

 – Legislative Ordinance No. 71/087 of 14 September 1971 on the minimum personal contribution, of which sections 18 to 21 provide for imprisonment involving compulsory labour, upon decision of the chief of the local community or the area commissioner, of taxpayers who have defaulted on their minimum personal contributions;

 – Ordinance No. 15/APAJ of 20 January 1938 respecting the prison system in indigenous districts, which allows work to be exacted from persons in preventive detention (this Ordinance is not on the list of legal texts repealed by Ordinance No. 344 of 15 September 1965 respecting prison labour).

The Committee noted that the Government representative indicated on this subject in the Conference Committee on the Application of Standards that a Bill to repeal earlier legislation authorizing recourse to forced labour for purposes of national development was before the Parliament and that a copy of it would be provided once it had been adopted. The Committee noted the indication by the CSC in this regard that the Bill is not a priority for Parliament, and urged the Government to address this issue.

Recommendations

 Develop a legislative proposal to comprehensively address all forms of trafficking, including forced labor of adults;

 Continue to use existing legislation to investigate and prosecute military and law enforcement personnel and commanders of armed groups accused of unlawful recruitment or use of child soldiers, the use of local populations to perform forced labor, or sex trafficking;

 Work with civil society take steps to expand the availability and provision of comprehensive services to victims of forced labor and human trafficking;

 Adopt an action plan to combat all forms of trafficking;

 Provide training to law enforcement and judicial officials on the laws available to prosecute trafficking cases and victim-centered procedures in investigation and prosecution;

 Raise awareness about forced labour all forms of human trafficking among the general population; develop procedures for proactive identification of trafficking victims among vulnerable groups, such as women in prostitution, street children, and men, women, and children in artisanal mining and their subsequent referral to care;

 Continue measures to end the unlawful recruitment and use of child soldiers by FARDC members;

 Continue to ensure the identification, removal, demobilization, and appropriate care for all children associated with armed groups.

LESOTHO

Legal and institutional framework for forced labour and human trafficking

The Anti-Trafficking in Persons Act, which came into effect in January 2011, prohibits and punishes all forms of trafficking in persons. It prescribes penalties of up to 25 years’ imprisonment or a fine of one million maloti ($82,850) under Section 5(1) for the trafficking of adults and up to life imprisonment or a fine of two million maloti ($165,700) under Section 5(2) for the trafficking of children.

The Child Protection and Welfare Act, enacted in March 2011, prescribes penalties of life imprisonment or a fine of one million maloti ($82,850) for child trafficking. Labor recruiters who knowingly recruit workers for forced labor are liable for the same penalties as those who hold them in servitude.

The National Anti-Trafficking in Persons Strategic Framework and Action Plan is in place.

Forms and manifestations of forced labour and human trafficking

Lesotho is on the Tier 2 Watch List and is considered a source, transit, and destination country for women and children subjected to forced labor and sex trafficking, and for men subjected to forced labor.

The TIP 2015 Report records that in Lesotho and in South Africa, Basotho women and children are subjected to domestic servitude, and children—both boys and girls—increasingly endure commercial sexual exploitation. Basotho women and girls voluntarily migrate to South Africa seeking work in domestic service and upon arrival are detained in prison-like conditions or forced to engage in prostitution. Some Basotho men, who migrate voluntarily, though illegally, to South Africa for work in agriculture and mining, become victims of forced labor; many work for weeks or months before their employers turn them over to South African authorities for deportation on immigration violations to avoid paying them. Basotho are also coerced into committing crimes, including theft, drug dealing, and smuggling under threat of violence or through forced drug use. Chinese and Nigerian organized crime rings reportedly acquire Basotho victims while transporting foreign victims through Lesotho to Bloemfontein or Johannesburg. The trend of foreign nationals subjecting their compatriots to trafficking in Lesotho, first observed in 2011, reportedly continued, although no specific cases were identified by government or NGO stakeholders during the reporting period.

Comments by ILO supervisory bodies

The CEACR has issued a direct request seeking information on law enforcement and victim protection38 for trafficking in persons under article 25 of Convention No. 29. It requested information on the the practical application of the Anti- Trafficking in Persons Act, including the number of investigations, prosecutions and convictions. The Committee reiterated its request to the Government to indicate the measures it has taken to strengthen the capacity of law enforcement agencies to combat trafficking in persons. The Committee also repeated its requests that the Government provide information on the measures taken to provide protection and assistance to victims of trafficking with a view to facilitating their subsequent re-integration into society.

The Committee noted the Government’s indication in its report that a case of a foreign worker subjected to forced labour is currently under investigation and requested the Government to provide information.

In relation to whether adequate penalties are imposed for human tarfficking, the Committee previously observed that pursuant to section 5(1) and (2) of the Anti-Trafficking in Persons Act, a person convicted of trafficking could possibly only be convicted to pay a fine. In this respect, the Committee referred to the explanations contained in paragraph 137 of its General Survey of 2007 on the eradication of forced labour and recalled that given the seriousness of the offence and the dissuasive effect that the penalties should have, legislation providing for a fine or imprisonment cannot be considered effective. Noting that the Government’s report contains no information on this point, the Committee again requested the Government to indicate how this provision of the Act has been applied in practice, providing in particular information on the specific penalties imposed on persons convicted under section 5(1) and (2) of the Anti-Trafficking in Persons Act.

The Committee also noted the concluding observations of the Committee on the Elimination of Discrimination against Women of October 2011 which expressed concern about the continuing prevalence of trafficking in women and children, the low reporting rate and the lack of shelters and counselling services for victims of trafficking (CEDAW/C/LSO/CO/1-4, paragraph 24).

38 Direct Request (CEACR) - adopted 2013, published 103rd ILC session (2014) Forced Labour Convention, 1930 (No. 29) - Lesotho (Ratification: 1966)

The Committee has further, in realtion to Article 2(2)(c) of the Convention relating to work exacted as a consequence of a conviction in a court of law, requested the Government to clarify whether the imposition of a sentence of community service requires the consent of the convicted person. It also requests the Government to provide a copy of the rules governing community service and to provide more detailed information on the nature of the work performed in the context of community work, as well as on the organizations for the benefit of which this work is carried out. In this regard the Committee noted that section 314A(1) of the Criminal Procedure and Evidence (Amendment) Act, 1998 enables the Court to replace a sentence of imprisonment or detention for a person convicted of a minor offence (for which the Court may pass a sentence not exceeding 18 months of imprisonment) by an order to perform community services. It further notes that pursuant to sections 314A(2) and 320A of the same Act, the procedures for the implementation of a sentence to perform community service are laid down in the rules made by the Chief Justice.

Law enforcement

The Child and Gender Protection Unit (CGPU) of the Lesotho Mounted Police Service, with 116 officers and responsibility for the enforcement of criminal law pertaining to child labor, lacks sufficient resources to enforce child labor laws and did not conduct any investigations or prosecutions related to forced child labor in 2014.

The Ministry of Employment and Labor (MOEL) conducted approximately 1,330 inspections as at August 2014, but no forms of forced labour were identified. It has been suggested that the focus on formal labour is an imepdiment since forced child labor was most prevalent in the informal sector where children work as domestic workers and herd boys. The government did not train labor inspectors to identify child labor and inspectors did not identify any child labor violations in 2014. MOEL issued 40 licenses to labor agents recruiting workers from Lesotho for farms and construction companies in South Africa. Although returned Basotho laborers report complaints about their working conditions abroad, MOEL only filed complaints against and suspended the permits of these companies when the violation involved many reported victims or extreme violence. There were no such suspensions in 2014. Nonetheless, the government continued to institute its agreement with the South African Ministry of Labor to cooperate on dispute resolution and information sharing on labor issues.

The government failed to initiate any prosecutions during the reporting period and has not successfully prosecuted and punished a trafficking offender under the 2011 anti-trafficking act. In addition, it did not address systematic

weaknesses—including alleged complicity and questions of jurisdiction among courts. The government identified 11 trafficking victims and referred five for care. However, overall efforts to protect victims remained minimal, as the government did not develop formal referral procedures or establish victim care centers—key elements of the 2011 anti-trafficking act that remained unimplemented for the fifth consecutive year.

Recommendations

The government is urged to address the following gaps and challenges :

 Enact implementing regulations for the 2011 Anti-Trafficking Act and address jurisdictional issues impeding the hearing of trafficking cases in the Basotho court system;  Increase investigations and prosecutions of human trafficking offences under the 2011 Anti-Trafficking Act, including both internal and transnational cases;  Ensure protection of human trafficking victims and provision of adequate care in government-run centers or in partnership with international organizations or NGOs;  Develop a formal system to proactively identify trafficking victims among vulnerable populations and refer them to care, as is enviisaged under the 2011 Anti-Trafficking Act;  Distinguish between the processes of victim identification for protection and prevention from the prosecution of human trafficking offenders;  Ensure that adequate resources are available and build capacity of official to sustain anti-trafficking efforts, especially provision of protection services such as victim witness support; i  Increase oversight of labour recruitment agencies licensed in Lesotho;  Implement the national action plan and strategic framework;  Root out corruption and investigate and prosecute complicit officials;  Develop a data collection system to analyze data on victims identified and assisted, trafficking offences investigated and prosecuted, and trafficking offenders convicted and punished;  Ensure training of judicial, prosecutorial, investigative and other law enforcement officers, including front-line services.

MADAGASCAR

Legal and institutional framework for forced labour and human trafficking

Act 98-024 of 25 January 1999 amended the Penal Code to enable the government to address child trafficking, through, inter alia, setting requirements for travel documents (with five other countries of the region). Forced or bonded labor by children is prohibited under the Labor Code. The Penal Code prohibits engaging in sexual activities of any type with children under the age of 14, and the production and dissemination of pornographic materials showing minors is illegal.

In December 2014, the National Assembly passed updated anti-trafficking legislation—Law No. 2014-040—broadening the scope of the Anti-Trafficking Law No. 2007 -038. The new law is comprehensive and applies to traficking for forced labour, forced begging, debt bondage and forced prostitution. It imposes stringent penalties for trafficking offenses, ranging from two to five years of imprisonment and a 1-10 million ariary ($385-3,850) fine, and stiffer penalties of five to ten years of imprisonment and fines ranging from 2-10 million ariary ($ 770-3,850) for trafficking crimes committed against children.

In 2014 the government established a National Bureau to Combat Human Trafficking. The government also secured its first three labor trafficking convictions under the 2007 Anti-Trafficking Act. The Bureau is led by the Ministry of Justice and the Ministry of Tourism and the Ministry of Population have worked with the ILO and other stakeholders to develop an action plan and code of conduct to combat sexual exploitation of children.

Forms and manifestations of forced labour and human trafficking

The Special Rapporteur on contemporary forms of slavery has noted that the lingering effects of Madagascar’s caste system and the deeply rooted discrimination resulting from it, continued to marginalize the most vulnerable people in society, particularly those descended from slaves. Many parents across Madagascar are “desperately poor” and are often faced with few alternatives regarding employment and where to send their children to school. As a result, the children, who are frequently undernourished and suffer from chronic hunger, are doled out across the countryside as domestic workers in order to pay off rising debts or simply to help feed the family.

Malagasy children may also find themselves in situations of forced labour and human trafficking involving prostitution, forced begging and forced labor in mining, fishing, and agriculture within the country. Madagascar’s artisanal mining and quarrying sector includes minerals such as gold, chromite and sapphire and involves child labour. Many children working in these environments are often isolated in remote areas where they are vulnerable to forced labour and its various manifestations in violence, poor working

conditions and health hazards.

Madagascar is listed as a Tier 2 country in the TIP 2015 Report and is considered a source country for men, women, and children subjected to forced labor and women and children subjected to sex trafficking. Reports exist of trafficking in women and girls for prostitution between the country and the neighboring islands of Mauritius and Reunion. Children also were trafficked from rural areas of Madagascar into forced prostitution in urban areas, as well as subjected to domestic servitude and forced into working in the artisanal mining and quarrying sector, as well as in fishing and agriculture. This results in them often living in in remote areas plagued by violence and lawlessness where they were exposed to rape, prostitution and potentially fatal health hazards39. Human trafficking within domestic work does not only involve women going abroad, it also occurs internally throughout Madagascar, largely involving children. Children, mostly from rural areas in Madagascar, are often sent to work by their parents to provide for their families or pay off family debts and end up as domestic workers. A report by the International Programme for the Elimination of Child Labour (IPEC) ,40 a branch of the International Labour Organisation, has warned that children as young as eight are being used in mines - because they can get into the cramped spaces in the mines more easily than an adult. The report noted that children are often exposed to very serious dangers and can, for example, die of suffocation if the mine caves in. Dominique Rakotomanga, who works for IPEC in the capital, Antananarivo41, said "this is a really big problem, especially in Ilakaka. We are trying to raise awareness about the problem, find alternative ways for the children to make a living, and ensure that they don't miss out on their education. But because of the poverty here and elsewhere, it is very tempting for them to work underground." These findings were confirmed in Ilakaka by Mahatesa Rakotoarisoa, who works in one of the gem stalls and acts as an interpreter for sapphire dealers from Sri Lanka. "We think safety must be improved in the mines. Quite a few people who have gone down the mineshafts have been hurt. It is not good that children have to work like this. They are too young."

Children from rural areas are also trafficked into forced labour in the capital which sometimes results from fraudulent recruitment by informal agenices ostensibly in the restaurant and domestic work sector. Sometimes their recruitment is facilitated by family members and friends but it is said that transport operators, tour guides, and hotel workers are also complicit in trafficking of children into cities for forced labour and forced prostitution.42

39 See www.ohchr.org/EN/HRBodies/HRC/.../A-HRC-24-43-Add2_ar.doc 40 ILO IPEC Report 41 UN Integrated Regional Information Networks IRIN, Ilakaka, 17 September 2003 www.irinnews.org/report/46200/madagascar-feature-gem-industry-in-need-of-regulation [accessed 11 November 2015]

42 TIP 2015 report.

Despite prohibitions in the Penal Code, child sexual exploitation by tourist continues to exist in the coastal cities of Toamasina, Toliara, Antsiranana, Nosy Be, Mahajanga, and Fort-Dauphin. Over the past three years, prostitution of boys has emerged as a growing problem. Child prostitution is prevalent, particularly around the formal and informal mining sites of Toamasina and Illakaka, respectively. Malagasy men are the main clients of prostituted children, while most child sex tourists are French and Italian nationals, with some reports of sexual exploitation of children by other Western nationals and Comorans.

Government officials are allegedly complicit in obtaining falsified national identity cards, which facilitates the sexual exploitation of children for commercial sex in Madagascar and the domestic servitude of Malagasy women abroad.43

Malagasy women continue to be sent to China with falsified identity cards and exploited in forced labor and sold as brides.

Malagasy men have been subjected to forced labor aboard Chinese-flagged fishing vessels in South Africa’s territorial waters. According to an ILO issue brief, it is common for men to seek employment outside of the country and there has been an increase in Malagasy males victimized by labour trafficking abroad. In 2012, more than 50 Malagasy men were identified as victims of forced labor aboard a Chinese-flagged fishing boat in South Africa’s territorial waters. Malagasy men also migrate for work into the Middle East where many are exploited in forced labour in the service and construction sectors.

According to an ILO Issue brief 44 many women in Madagascar seek employment as domestic workers in Middle Eastern countries. The majority is mostly rural, illiterate single mothers pursuing employment opportunities in Lebanon and Kuwait for lack of better options in Madagascar. There are a number of recruitment agencies located throughout the country and the Madagascar Ministry of Labor and Civil Service is responsible for regulating these agencies and approving the immigration of each worker. An estimated 4,000 Malagasy women are employed as domestic workers in Lebanon and an estimated 3,000 are employed in Kuwait. Saudi Arabia, Jordan, Mauritius and Seychelles are also destinations for domestic workers. There has been an official ban on sending women to Lebanon since November 2009, however women continue to go. In response to complaints from domestic workers, a one-month ban on sending workers to certain countries was implemented in early 2013. Reports of abuse are common and a number of trafficking victims returning from Lebanon, Kuwait, and Saudi Arabia have reported that they were subjected to physical and psychological abuse, harsh working conditions, confinement to the home, confiscation of travel documents, and withholding of salaries, which are all indicators of forced labour. Many of the

43 TIP 2015 Report.

44 Date…

women migrating are illiterate single mothers from rural areas and vulnerable to deception and abuse by recruitment agencies and employers.

The current legal age for marriage in Madagascar is 18 years, but despite this girls and boys as young as 10 years old continue to be in situations of servile marriage—forced to marry against their will—throughout the country. Servile marriage is often linked to various forms of forced labour, including domestic servitude and can also constitute slavery. UNICEF reported in 2007 that between 1987 and 2005, 39% of Malagasy children were married before the age of 1845. According to the Special Rapporteur on contemporary forms of slavery, Gulnara Shahinian, following a visit to Madagascar in ……“Victims of such arrangements are likely to be also victims of domestic servitude and sexual slavery. They are equally denied their right to health, education, non- discrimination and freedom from physical psychological and sexual violence”46.

Law enforcement

During the reporting period, the National Police’s Morals and Minors Brigade investigated 187 cases of sexual exploitation of children between the ages of 5 and 18, some of which may have included trafficking, an increase from the 68 trafficking cases investigated the year prior. Fifteen cases of labor trafficking were prosecuted. In one case, the government prosecuted 11 alleged traffickers for the illicit recruitment of migrant workers; three were convicted of trafficking offenses under Law 2007-038 but sentenced only to two-year suspended prison sentences and fines of 1 million ariary ($385), which is an inadequate deterrent for traffickers.

The government prosecuted seven other suspected traffickers under the new 2014 anti-trafficking law and obtained three convictions. There were six convictions reported for the year. Total national statistics on prosecutions and convictions remained difficult to track, due to a lack of coordination between law enforcement and the courts and poor record keeping; therefore, there may have been additional prosecutions and convictions. The government did not report any investigations, prosecutions, or convictions of government officials complicit in human trafficking offenses, despite widespread corruption and allegations of complicity.

Protection and Prevention measures

The government continued to lack formal procedures to proactively identify trafficking victims among vulnerable populations and did not systematically provide services or refer victims for care. The Ministry of Population and

45 Unicef Report …. 46 Cite reference for Gulnara Madagascar report.

Social Affairs, in collaboration with an international organization, continued to coordinate approximately 450 child protection networks across the country. These networks are mandated to protect children from various forms of abuse and exploitation, as well as ensure access to medical and psychosocial services for victims. However, the care was at times inadequate, the standard of care was uneven from one region to another, and it remained unclear if some of the networks provided services to trafficking victims during the reporting year. Officials continued to operate and fund the Manjary Soa Center in Antananarivo, which removed 35 child victims from situations of exploitative labor and sex trafficking. The center provided medical care and, based on the ages of the victims, either reintegrated them into the public school system or provided vocational training. On March 4, with support from an international organization, the Vonjy Center was launched at the Befalatana public hospital in the capital as part of an integrated approach to victim care, designed to address the needs of victims of sexual violence including trafficking victims. With medical providers, social workers, and two elements of the minors brigade permanently posted under one roof, this assistance center is designed to address the needs of victims of sexual violence, including trafficking victims. There were no reports the government arrested or punished trafficking victims for unlawful acts committed as a direct result of being subjected to trafficking, yet three children were committed to a group home for obtaining false documents with the intent of working abroad. The government remained without formal procedures to encourage victims to assist law enforcement in the prosecution of their traffickers; however, the police reported some victims were active participants in the investigations of their alleged traffickers. Under the new anti-trafficking legislation passed December 2014, victims are guaranteed compensation for reintegration and medical care; this provision had not yet been implemented during the reporting period, reportedly due to a lack of funding.

The government failed to engage with foreign governments regarding the protection of and legal remedies for exploited Malagasy workers. However, it did make modest efforts to assist in the repatriation of eight Malagasy migrants from Comoros, Mauritius, and Ethiopia. Upon repatriation, the vast majority of Malagasy trafficking victims arrived destitute and in need of psychological and medical services; the government failed to provide victims with resources or assistance and continued to rely heavily on NGO support.

The government continued efforts to prevent trafficking. During the reporting year, the government formally adopted a five-year national action plan to combat human trafficking and pledged to commit staff and 38.95 million ariary ($15,000) toward its implementation in 2015. On March 3, the government adopted a decree creating the National Bureau to Combat Human Trafficking, which will coordinate the implementation of the national action plan, determine policy, and monitor prosecution of human trafficking cases.

A 2013 ban on domestic worker travel to high risk countries remained in place during the reporting period, which according to officials, led to a decrease in the number of migrant workers leaving for Gulf countries; however, illicit

recruiting agencies continue to circumvent the ban by sending workers through Mauritius, Kenya, South Africa, and Comoros, and NGOs continued to report trafficking victims in Gulf countries and Malagasy women trafficked and sold as brides in China.

In 2104 a specialised unit of the national Gendarmerie was established to focus on increasing child protection against trafficking. A new tourist police branch was also formed to patrol beaches and other areas popular for child sex tourism in September 2014. The Ministry of Tourism posted warnings against child sex tourism in establishments across the country, and the Ministry of Population and Ministry of Communication carried out an awareness campaign entitled “Break the Silence” in Toliara, one of the high- risk cities for trafficking, between June 2013 and May 2014.

The police continued to operate a national hotline to report child exploitation cases, but due to a lack of specificity in data collection, the number of resulting trafficking cases remained undetermined.

Officials continued to partner with local NGOs and international organizations (including the ILO) to implement a code of conduct to combat the commercial exploitation of children in the Nosy Be and Toliara tourism industry, but it had yet to be disseminated across the country.

The government provided training on combating trafficking in persons to law enforcement, judges, and civil society, as well as general guidance to diplomatic personnel on preventing trafficking based on local laws. The government did not make any tangible efforts to reduce the demand for forced labor during the reporting period.

Recommendations

Progress has been reported with ensuring prevention and prosecution measures , but much needs to be to ensure protection of Malagasy victims from trafficking for forced labour and forced prostitution. Some progress has been made with working with transit countries to prevent labor trafficking, but co-ordination with destination country governments on protection and legal remedies for exploited Malagasy workers is still lacking. In 2014 according to the USDS TIP report 2015, authorities investigated 187 cases of sexual exploitation of children, an increase from the 68 trafficking cases the previous year. However, the following gaps still exist:

The legal framework does not provide effective protection for victims of forced labour and trafficking for forced labour, and implementation, protection, prevention and compensation gaps still exist. There are no formal procedures to enable identification of trafficking victims among vulnerable populations and to provide victim protection. Public awareness of forced labour and trafficking for forced labour is till lacking, and the root causes of vulernability to such practices continues to exist. Oversight of recruitment agencies needs to be increased.

The government needs to ensure increased training of law enforcement officials on how to adequately identify victims, investigate cases, and refer victims to appropriate services, in particular of labour inspectors, is required.

In addition, monitoring and regulating recruitment agencies is necessary to ensure protection against trafficking abroad of Malagasy citizens.

Increased co-operation with destination country governments to guarantee protections for Malagasy domestic workers and jointly address cases of abuse is also required. Improved data collection on the forms, scope and prevalence of forced labour is required.

Increased law enforcement efforts to combat human trafficking for forced labour, including provision of the necessary human and institutional resources is required.

MALAWI

Legal framework for forced labour and human trafficking

The Penal Code prohibits forced or compulsory labour. The penalties prescribed for the crime vary from 10,000 Kwacha (about 67 USD) to 2 years’ imprisonment.

The Penal Code and Employment Act contain provisions prohibiting human trafficking. However,trafficking is treated as a misdemeanour and traffickers are usually sentenced to fines or short imprisonment.

No specific anti-trafficking law exists.The government has indicated that such legislation is currently being prepared.(ITUC report)

The Government has successfully mainstreamed labour issues including child labour into the Malawi Growth and Development Strategy (MGDS II) (2011- 2016), the Decent Work Country Program (2011-2016) and the United Nations Development Assistance Framework (UNDAF).

Forms and manifestations of forced labour and human trafficking

Migration dynamics in Malawi are complex as it is a country of origin, transit, and destination for thousands of migrants. The country is particularly affected by mixed migration flows and related complex smuggling routes from the Horn of Africa to Southern Africa. Challenges associated with these flows as well as labor migration into and out of the country have created a pressing need for a comprehensive national migration policy. Recurrent floods also cause large quantities of internal displacement regularly. Setting up comprehensive migration data collection and management systems are thus the government’s current priority in a bid to ensure evidence based policy making.47

Human trafficking for forced labour exists in various sectors throughout Malawi. Men and boys are trafficked from Malawi to neighbouring countries for work, often to Tanzania for working in fisheries, and girls and women are trafficked for sexual commercial exploitation, particularly to South Africa. Malawi is also a destination point of trafficked African women for prostitution.

Malawi is a transit destination for migrants en route to South Africa seeking employment opportunities. Migrants are increasingly at risk of human trafficking in Malawi and are vulnerable to labour trafficking situations. In June

47 In this regard the Government is currently working with the IOM to establish a national migration database. www.iom.int sourced 12.11.15

2013, The Malawi Human Rights Commission recognized the growing problem of human trafficking and forced labour and stated that there is increasing evidence of human trafficking within the country. 48

Malawi is also a source country for men, women, and children trafficked for forced labor and forced prostitution. Malawian victims of trafficking for forced labour and forced prostitution have been identified in Mozambique, South Africa, Zambia, Tanzania, and Europe. Malawian girls are subjected to domestic servitude in eastern Zambia. Some girls recruited for domestic service are subjected to forced marriage with the purpose of domestic servitude or are subjected to forced prostitution by their “husbands.” Migrants from the Great Lakes region and the Horn of Africa may become labor trafficking victims in Malawi or transit through Malawi and subsequently become labor trafficking victims in South Africa49.

Trafficking for forced labour also occurs internally with most Malawian victims exploited within the country, with victims generally transported from the southern part of the country to the central and northern regions. This has resulted in children being subjected to forced labor in the agricultural sector (predominantly in the tobacco industry, but also on tea, coffee, and sugar plantations), goat and cattle herding, and brickmaking. Frequently, traffickers entice families to part with their children with the promise of work as farm laborers, subsequently subjecting the children to forced labor or sexual exploitation. In 2009 the authorities arrested and prosecuted child traffickers who intended to deliver boys to cattle herders. Other usual destinations of internally trafficked persons are the tobacco plantations, domestic servitude, and small businesses.

Children are also subjected to forced labor in begging, small businesses, and potentially in the fishing industry. Some are coerced to commit crimes. Reports indicate that most cases of child forced labour outside the family involve fraudulent recruitment and physical or sexual abuse and coercion, which are indicators of forced labor. Brothel owners or other facilitators lure girls—including primary school children—from rural areas with promises of clothing and lodging, for which they are charged high fees, resulting in these girls being in debt bondage in Malawi or neighboring countries. The prevalence of child labour (not all of it would constitute forced labour) is alarming, as it is estimated that 1.4 million children are working in Malawi, which is the highest rate in Southern Africa. 50

The United States prohibits procurement of tobacco from Malawi as its production is considered to be secured by forced or indentured and child

48 http://allafrica.com/stories/201306191324.html

49 USDS TIP 2015. 50 http://www.unicef.org/malawi/children.html

labour 51 . Its 2014 List of Goods produced by Forced or Indentured child labour states : “There are reports that children in Malawi are forced to work producing tobacco. Tobacco estates are concentrated in the Mzimba, Kasungu, Mchinji and Mzimba districts. According to the most recently available data from the ILO and NGOs, over 70,000 children work on tobacco plantations, some of them under conditions of bonded labor. Families working on tobacco estates sometimes become bonded to their landlords, and their children are forced to work to repay their family debts. Landlords charge these tenant workers for costs such as rent, fertilizer, and seeds; these costs often exceed the profit earned from the tobacco harvest and result in debt for the worker and his or her family. Some children are also hired under deceptive terms of work and promised payment, and then are paid little, if at all, at the end of the season. Some children are forced to work long hours, including overtime, and are forced to perform dangerous tasks, such as carrying heavy loads and using pesticides. In addition, certain children work under threats and penalties including physical, verbal, and sexual abuse, and do not receive food or pay”.

Bonded labour as a form of forced labour

Bonded labour refers to situations where workers render services under conditions of bondage arising from economic considerations, notably indebtedness through a loan or advance. Where debt is the root cause of the bondage, the implication is that the worker (or dependants or heirs) is tied to a particular creditor for a specified or unspecified period until the loan is repaid. Sometimes farmers subject to the land tenancy system end up selling their daughters to delete debt, a practice known as “kupimbira”.

The situation of tenant farmers has received much attention as most of these farmers are said to be in a situation of debt bondage or serfdom as a result of the land tenancy law.

Laws have to be enacted to declare such bondage unlawful, and to provide for sanctions against those landowners or other employers who hold their workers in bondage, and this has to be accompained by supplementary measures, including economic assistance and rehabilitation, to assist the released workers earn a livelihood, liberate them from the debt, reahbilitate them and to ensure that they do not fall back into a situation of bondage.

The problem persists in Malawi in the form of a post-colonial practice of land tenancy on tobacco farms. This system subjects adults and their children to forced labour in the form of debt bondage and hence forced labour.52 It occurs

51 Cite website. 52 The tenant worker’s contract continues to be a dominant feature on Malawian private estates : see LAND LAW REFORM: A COMPARATIVE ANALYSIS OF

when farm owners provide tenants with agricultural inputs through loans and deduct the debt thus incurred from future profits. Families who cannot meet production quotas and are unable to repay these debts are likely to fall into debt bondage, a form of forced labour, which affects both children and adults. Indeed, the prevailing tenancy system in the tobacco industry by design compels tenants to use their family members as free labour in order to meet high targets set by landlords, a system that in a number of instances leads the “tenants” to fall into debt servitude. Moreover, workers in the tobacco sector do not fall under the scope of application of the labour legislation but are governed by a Tenancy legislation and hence do not benefit from the workers’ rights afforded by the labour legislation. The issue of the Tenancy Bill has been subject to much debate over the last two decades as to whether abolish it and place the current tenants under the scope of application of the labour legislation or amend it as to “improve it” while keeping the tenancy system. The passing of the Tenancy Labour Bill, drafted in 2001, is still pending. It provides a means of establishingdirect labour contracts in farms, replacing the tenancy system in force.

Comments by ILO supervisory bodies

The CEACR53 made an Observation to Malawi in terms of Articles 1(1) and 2(1) of the Forced Labour Convention in which it raised the issue of bonded labour in tobacco plantations in response to allegations from various workers’ organizations. The Committee noted that the Government denied these allegations, stating that the labour inspectors of Malawi had never heard of such cases and that no forced labour complaint had been filed. The Committee also noted that, in its 2010 report for the periodic review of the General Council of the World Trade Organization (WTO) regarding trade policies of Malawi, the International Trade Union Confederation (ITUC) highlighted that in plantations, especially in tobacco farms, tenant labourers are exploited through an indebtedness system and coerced into labour by the landlords. The Committee noted the Government’s brief indication in its latest report that the Tenancy Labour Bill was discussed at Cabinet level and has

SOUTH AFRICA’S LABOUR TENANCY CONTRACT AND MALAWI’S TENANT WORKER’S CONTRACT, SIBO BANDA, Winter 2006, Oxford University commonwealth law journal, 201- 217). See also A. Phiri, Assessment of the potential impact of the Abolition of the Tenancy Labour System in Malawi, unpublished ???

53 Observation (CEACR) - adopted 2014, published 104th ILC session (2015)

Forced Labour Convention, 1930 (No. 29) - Malawi (Ratification: 1999)

been referred back to the Ministry of Labour for further revision. The Committee also notes the statement in the report of the UN Special Rapporteur on the right to food, of January 2014, that an estimated 300,000 tobacco tenant families live in extremely precarious situations in the country. The Special Rapporteur highlights that the incomes of tenant families depend on the quantity and quality of tobacco sold to the landowner in each harvest season and that, in some cases, families are left without any income once they reimburse loans covering their food requirements during the growing season (A/HRC/25/57/Add.1, paragraph 47). Referring also to the explanations contained in paragraph 294 of its 2012 General Survey on fundamental Conventions, the Committee recalls that the manipulation of credit and debt by employers is still a key factor that traps vulnerable workers in forced labour situations. For example, poor agricultural workers may be induced into indebtedness through accepting relatively small but cumulative loans or wage advances from employers at times of scarcity. The Committee therefore reiterated its hope that the Government will take the necessary measures to expedite the adoption of the Tenancy Labour Bill with a view to strengthening the protection of tenant labourers against the debt mechanisms that may result in bonded labour.

In addition, a Direct Request 54 under Articles 1(1) and 2(1) of Convention No.29 concerning the freedom of career military personnel to leave service, the CEACR reiterated that career members of the armed forces, who have voluntarily entered into an engagement, cannot be denied the right to leave the service in peacetime within a reasonable period, e.g. by means of notice of reasonable length, whatever the reason for resignation.

In regard to Article 2(2)(e) of Convention No.29, regarding minor communal services, the CEACR requested the Government to describe such work in more detail, indicating, in particular, the types of work performed and is duration, as well as whether individuals refusing to participate in communal services are liable to penalties. The Committee had previously noted that, under section 3 of the Employment Act, 2000, “forced labour” did not include minor communal services of a kind performed by members of the community in the direct interest of the community. In this connection, the Government indicated that minor communal services are undertaken mainly in rural areas, and are performed by members of the community, in consultation with all the people concerned in that area, with a view to improving their living standards. The Government also indicated that the issue was tabled for discussion in the context of a law

54 Insert reference for Direct Request.

review process, and that a draft revised Act had taken into consideration the issues raised by the Committee.

In terms of progress made with anti-trafficking legislation the CEACR has made an Observation55 that the Malawian government has prepared a draft bill on human trafficking, which is ready to be submitted to Parliament. The bill would address issues concerning both internal and cross-border trafficking. The Government further indicates that it is carrying out activities to help sensitize courts, the police and communities on the issue of trafficking. The CEACR also noted the Government’s indication that cases of trafficking are currently prosecuted under provisions of the Penal Code, in cases of adult victims, and of the Child Care, Protection and Justice Act (2010), in cases of child victims.

The Committee repeated the concluding observations of the Human Rights Committee of July 2014, in which concern was expressed about the delays in adopting specific anti-trafficking legislation, the prevalence of trafficking in the country and the lack of official data available on its extent. The Human Rights Committee also expresses regret regarding the lack of adequate programmes to protect and support victims (CCPR/C/MWI/CO/1/Add.1). The CEACR requested the Government to take the necessary measures to ensure the adoption in the very near future of comprehensive legislation against trafficking in persons, including adequate sanctions allowing those responsible for trafficking to be prosecuted and punished. The Committee also requested the Government to provide information on the measures adopted with a view to protecting and assisting victims of trafficking. Finally, the Committee requests the Government to provide detailed information on the specific measures taken to prevent and combat trafficking in persons, as well as statistics on the number of cases of trafficking examined by the authorities and specific penalties applied.

Law enforcement

Little or no prevention, prosecution and protection measures are undertaken. Victims of forced labour or trafficking brought into Malawi are usually repatriated.

A major gap in the enforcement of legal protection against forced labour is that the labour inspectorate needs assistance to strengthen its capacity- building to conduct effective visits. Moreover, it is as essential that labour inspectors be empowered within the country’s enforcement structure (justice,

55 Ibid, 2014 Observation.

police) to conduct visits and to follow-up on sanctions where infringements to labour standards have been detected. In many countries, labour inspectors do not have easy access to farms, which is an impediment to securing decent conditions of work in tobacco plantations.

Recommendations

The key recommendations are that the government should enact anti- trafficking legislation and address the situation of bonded labour tenants through passing the Tenant Labour Bill.

MAURITIUS

Legal framework for forced labour and human trafficking

The Combating of Trafficking in Persons Act of 2009 (No. 2 of 2009). prohibits all forms of trafficking of adults and children and prescribes penalties of up to 15 years’ imprisonment for convicted offenders.

The Child Protection Act of 2005 prohibits all forms of child trafficking and prescribes punishment of up to 15 years’ imprisonment.

The Judicial Provisions Act of 2008 increased the maximum prescribed punishment for child trafficking offenses to 30 years’ imprisonment.

Law enforcement

Human trafficking for forced labour exists on foreign fishing boats illegally operating in Mauritius’ territorial waters, as well as in relation to of migrant workers in the construction and manufacturing industries. No prosecutions have however been initiated in the 2014 year for such offences (this is the reporting period cited in the USDS TIP report). The Report states that during the reporting period, the government reported nine trafficking investigations, but no prosecutions or convictions. Eight of the investigations involved child sex trafficking offenses and one involved the forced prostitution of an adult; all the investigations remained pending at the close of the reporting period.

The Minor’s Brigade of the Mauritian Police Force referred 14 cases of child labor to the Ministry of Labor, Industrial Relations, and Employment (MOL), but no additional law enforcement action was taken. Some of these cases might have involved child labor trafficking56. The MOL does not proactively identify child labor trafficking victims and does not have a formal referral mechanism to ensure such victims receive care. The MOL did not investigate child labor cases during the reporting period, despite receiving information on such cases from the police. The MOL is required to approve all employment contracts before migrant laborers enter the country. However, reports indicate many migrant laborers enter the country with incomplete contracts or contracts that have not been translated into languages that the workers understand. Additionally, the MOL’s Special Migrant Workers Unit, which is responsible for directly monitoring and protecting all migrant workers and

56 USDS TIP report 2015.

conducting routine inspections of their employment sites, was staffed by only four inspectors; this number of inspectors is severely inadequate, as there are approximately 37,000 migrant workers currently employed in Mauritius.

During the reporting period, immigration officials regularly turned back single Malagasy women, traveling on their own, with less than 4,200 rupees ($132) who attempted to enter the country on tourist visas on the grounds that they might be coming to Mauritius to engage in prostitution; some of these women might have been trafficking victims. Additionally, under Mauritian law, migrant workers who strike are considered to be in breach of their employment contracts and can be deported at the will of their employers.

Some migrant workers who gathered to protest abuses relating to their employment were deported during the reporting period; these deportations took place without conducting comprehensive investigations or screenings to identify if the individuals were victims of forced labor. The 2009 anti-trafficking law specifically provides legal alternatives, such as temporary residency, to removal to countries in which the trafficking victims would face retribution or hardship.

The Ministry of Tourism and Leisure also distributed pamphlets warning tourism industry operators of the consequences of engaging in or facilitating child prostitution. However, the government does not have an Interministerial Coordinating body or a national action plan dedicated to combating all forms of trafficking. The government did not conduct any awareness campaigns relating to other forms of trafficking and did not make any discernible efforts to reduce the demand for forced labor during the reporting period.

Forms and manifestations of forced labour and human trafficking

Mauritius is on the Tier 2 Watch List and is a source, transit, and destination country for men, women, and children subjected to forced labor and sex trafficking.

Secondary school-aged girls and, in fewer numbers, younger girls from all areas of the country, including from Rodrigues Island, are induced or sold into prostitution, often by their peers, family members, or by businessmen offering legitimate and legal forms of employment.

Women from Rodrigues Island are subjected to forced labor in domestic service in Mauritius.

In recent years, small numbers of Mauritian adults have been identified as labor trafficking victims in the UK, Belgium, and Canada. Malagasy women transit Mauritius en route to employment as domestic workers in the Middle East, where they often are subsequently subjected to forced labor and forced prostitution.

In previous reporting periods, Cambodian fishermen were subjected to forced labor on foreign fishing boats in Mauritius’ territorial waters.

Mauritius’ manufacturing and construction sectors employ approximately 37,000 foreign migrant workers from India, China, Bangladesh, Sri Lanka, and Madagascar, some of whom are subjected to forced labor.

Despite some measures to provide protection for child victims of human trafficking and conducting of public awareness campaigns to prevent forced child prostitution, the government is not considered to have made progress in combatting trafficking57. The government did not prosecute or convict any trafficking offenders during the reporting period. Additionally, there remained a general lack of understanding among law enforcement of trafficking crimes outside the realm of child sex trafficking, despite increasing evidence that other forms of trafficking exist in Mauritius, including the forced labor of adults. The government failed to identify or provide any protective services to adult labor trafficking victims and did not make any tangible efforts to prevent the trafficking of adults during the reporting period. For example, despite the presence of approximately 37,000 migrant workers in Mauritius, the government maintained a severely inadequate number of inspectors in its Special Migrant Worker Unit tasked with monitoring employment sites, and failed to proactively identify trafficking victims among workers protesting employment abuses. Instead, the government deported 20 such workers during the reporting period.

Comments by ILO supervisory bodies

In a Direct request 58 related to trafficking in persons under Articles 1(1), 2(1) and 25 of Convention No. 29, the CEACR requested information on the enforcement of the Combatting of Trafficking in Persons Act, 2009. The Committee noted the Government’s indication that since June 2011, eight cases related to trafficking in persons have been reported to the police. Two

57 Mauritius is on the Tier 2 Watch List. 58 Request (CEACR) - adopted 2013, published 103rd ILC session (2014) Forced Labour Convention, 1930 (No. 29) - Mauritius (Ratification: 1969)

of the cases have been prosecuted, while six are under investigation. The Committee also notes that the Committee on the Elimination of Discrimination against Women, in its concluding observations of 8 November 2011, expressed concern that Mauritius remained a country of source, destination and transit for trafficking in persons (CEDAW/C/MUS/CO/6-7, paragraph 24). The Committee requested the Government to pursue its efforts to combat trafficking in persons and to ensure that perpetrators of this offence are subject to sufficiently effective and dissuasive penalties. It requested the Government to continue to provide information on the application of the Combating of Trafficking in Persons Act, 2009, in practice, including the number of investigations, prosecutions, convictions and the specific penalties applied.

In regard to article 2(2)(c) of Convention No.29, work of prisoners for private individuals, companies or associations , the CEACR requested the Government to provide, in its next report, information on the progress made to amend the Reform Institutions Act, 1988 and the Prison Regulations, 1989, which provided for private work. The Committee previously noted that, pursuant to section 5 of the Ordinance concerning the work of prisoners (Standing Order No. 16 of 29 August 1997), it is prohibited for prisoners to be compelled to work in the service of another detainee or an officer or for the private benefit of any person. In addition, section 16(2) of the Prison Regulations of 1989, adopted under section 66 of the Reform Institutions Act, 1988, appeared to allow a prisoner to work in the service of an officer if authorization is granted by the Commissioner of Prisons. In this regard, the Government indicated that this issue would be addressed through amendments to both the Reform Institutions Act, 1988, and the Prison Regulations, 1989, on which the Prisons Department was working. The Committee notes the Government’s statement that the Prisons Department is still working on the amendments to be brought to the Reform Institutions Act, 1988, and to section 16(2) of the Prison Regulations, 1989. The Committee requested the Government to take the necessary measures to ensure that section 16(2) of the Prison Regulations, 1989, be amended in the near future, so as to ensure its conformity with the Convention on this point., as well as a copy of the amended Regulations, once adopted. Pending the adoption of such amendments, the Committee requested the Government to provide information on the application of section 16(2) of the Prison Regulations, 1989, in practice.

In an observation concerning commercial sexual exploitation of children under Convention No. 182 (Worst Forms of Child Labour), the CEACR expressed its concern regarding the commercial sexual exploitation of children in Mauritius and Rodrigues Island and requested the Government to take all the

necessary measures to protect children against trafficking and forced labour involving sexual exploitation.(Observation (CEACR) - adopted 2004, published 93rd ILC session (2005) Forced Labour Convention, 1930 (No. 29), Mauritius (Ratification: 1969)) The CEACR noted the Government’s reply to its previous observation on the subject, and noted that the Government had ratified the Worst Forms of Child Labour Convention, 1999 (No. 182). In so far as Article 3(a) of Convention No. 182 provides that the worst forms of child labour include "all forms of slavery or practices similar to slavery, such as the sale and trafficking of children, debt bondage and serfdom and forced or compulsory labour". The CEACR noted that the protection of children is enhanced by the fact that Convention No. 182 requires States which ratify it to take immediate and effective measures to secure the prohibition and elimination of the worst forms of child labour as a matter of urgency.

In regard to Article 25 of Convention No.25, Illegal exaction of forced or compulsory labour punishable as a penal offence, the CEACR refrred to its earlier comments noting the Government’s report that there is no provision in the existing legislation which makes the exaction of forced or compulsory labour punishable as a penal offence. It recalls that, under Article 25 the illegal exaction of forced or compulsory labour shall be punishable as a penal offence and that ratifying States have an obligation to ensure that penalties imposed by law are really adequate and are strictly enforced. The Committee therefore hoped that the necessary measures would be taken to introduce legal provisions making the exaction of forced or compulsory labour punishable as a penal offence and to ensure that such provisions are made effective by means of penalties which are adequate and strictly enforced. The Committee asked the Government to provide, in its next report, information on the progress made in this regard.

Recommendations

 A lack of understanding of trafficking among law enforcement and Mauritian officials is said to exist generally and Mauritius needs to provide law enforcement officials, magistrates, prosecutors, social workers, and labor inspectors with specific anti-trafficking training so officials can effectively identify victims, investigate cases, and refer victims to appropriate care.

 The enforcement of the anti-trafficking legislation to investigate and prosecute trafficking offenses and convict and punish trafficking offenders remains an issue.

 There is a need for increased coordination between law enforcement entities, NGOs, and international organizations on cases involving foreign trafficking victims;

 Procedures need to be established to guide officials in proactive victim identification among at-risk populations, including women in prostitution and migrant workers;

 Create an inter-ministerial committee to increase coordination among relevant government entities;

 Develop a national action plan to combat trafficking and allocate sufficient funding to implement the plan;

 Increase the number of labor inspectors responsible for monitoring the employment of migrant workers;

 Conduct a national awareness campaign on all forms of trafficking.

MOZAMBIQUE

Legal framework

Mozambique has adopted the Prevention and Combatting of Trafficking in Persons Act, No. 6/2008. The law prohibits recruiting or facilitating the exploitation of a person for purposes of prostitution, forced labor, slavery, or involuntary debt servitude. Article 10 prescribes penalties of 16 to 20 years’ imprisonment for these offences. ,

In 2014, the government enacted a new penal code, which includes prohibitions on involuntary commercial sexual exploitation and forced labor of men and women.

Forms of forced labour and human trafficking

Mozambique is a source, transit, and, to a lesser extent, destination country for men, women, and children subjected to forced labor and sex trafficking in the TIP 2015 report.

The use of forced child labor is common in agriculture and market vending in rural areas, often with the complicity of family members. Women and girls from rural areas, lured to cities in Mozambique or South Africa with promises of employment or education, are exploited in domestic servitude and sex trafficking. Mozambican girls are exploited in prostitution in bars, roadside clubs, overnight stopping points, and restaurants along the southern transport corridor that links Maputo, Swaziland, and South Africa.

Child prostitution is increasing in Maputo, Beira, Chimoio, and Nacala, which have highly mobile populations and large numbers of truck drivers. As workers and economic migrants seek employment in the growing extractive industries in Tete and Cabo Delgado, they increase the demand for sexual services, potentially including child prostitution. Women and girls from neighboring countries voluntarily migrate to Mozambique and subsequently endure sex trafficking or domestic servitude.

Mozambican men and boys are subjected to forced labor on South African farms and mines, or as street vendors, where they often labor for months without pay under coercive conditions before being turned over to police for deportation as illegal migrants.

Mozambican boys migrate to Swaziland to wash cars, herd livestock, and sell goods; some subsequently become victims of forced labor.

Mozambican adults and girls are often trafficked to Angola, Italy, and Portugal for the purposes of forced labor and forced prostitution.

The TIP 2015 report refers to Mozambican or South African trafficking networks that operate informally in the region, as well as larger Chinese and

Nigerian trafficking syndicates who are reportedly also active in Mozambique. South Asian people smugglers who move undocumented South Asian migrants throughout Africa reportedly transport trafficking victims through Mozambique. Reports allege traffickers bribe officials to move victims within the country and across national borders to South Africa and Swaziland, and prison officials force women to provide sex acts in exchange for provisions.

Comments from ILO supervisory bodies

In a direct request made to the national authorities under Articles 1(1), 2(1) and 25 of the Convention relating to trafficking in persons59, the CEACR requested the Government to provide information on the adoption of the implementing regulations of the Anti-Trafficking Act, which were necessary to to provide measures for awareness-raising, training, protection and reintegration of victims. The Committee noted the Government’s indication in its latest report that the implementing regulations of the Act have not yet been adopted. With regard to judicial procedures, the Government refers to the difficulties encountered in relation to investigations and adds that, in the context of a cooperation agreement with Brazil, training has been undertaken for professionals involved in the investigation of cases of trafficking and a manual of procedures had been prepared for magistrates and criminal investigation officers. The Committee noted this information and expressed its hopes that the implementing decree under Act No. 6/2008 will soon be adopted so as to allow the effective implementation of the measures envisaged in the Act in relation to the initiation of legal procedures (section 9), the training of those responsible for giving effect to the Act (section 28), the protection and reintegration of victims (sections 20, 21 and 24) and the establishment of appropriate machinery and institutions to combat trafficking in persons (section 30). The Committee also requested information on the number of residence permits granted to victims who agree to cooperate with the prosecution authorities and on court decisions taken under the Act.

59 Direct Request (CEACR) - adopted 2012, published 102nd ILC session (2013) Forced Labour Convention, 1930 (No. 29) - Mozambique (Ratification: 2003)

Article 2(2)(a). Work exacted by virtue of compulsory military service laws. In its previous comments, the Committee referred to article 267(3) of the Constitution, under which the law shall establish a civic service to replace or supplement military service for citizens who are not subject to “military obligations”. The Committee noted the adoption of Act No. 16/2009 of 10 September 2009 determining the principles and basic rules governing civic service and its implementing text (Decree No. 8/2010 of 15 April 2010). The Committee observes that, in accordance with sections 1 and 2 of the Act, citizens between the ages of 18 and 35 years who are not subject to “military obligations” shall perform civic service, which consists of activities of an administrative, cultural or economic nature or the provision of assistance. Furthermore, under the terms of sections 3 and 4 of the Act, the Council of Ministers shall determine the annual contingents who are to be covered by civic service. The Committee recalled that, to be excluded from the scope of application of the Convention and from the definition of forced labour, work exacted by virtue of compulsory military service laws must be of a purely military character. In this respect, the Committee observed that, on the one hand, civic service, which forms part of the obligation of citizens to participate in defending the independence, sovereignty and territorial integrity of their country (article 267 of the Constitution), replaces or supplements military service for citizens who are not subject to “military obligations” and, on the other, that the activities imposed in the context of civic service are not of a purely military character (sections 3 and 7 of the regulations). Under these conditions, the Committee requested the Government to provide information on the manner in which the obligations deriving from military service are combined with those of civic service, and to indicate how persons who are not subject to military obligations are defined and which persons are subject to the obligation to perform civic service, as well as their numbers.

Article 2(2)(c). Work exacted as a consequence of a conviction in a court of law. In its previous comments, the Committee referred to Legislative Decree No. 15/74 of 5 November 1974 on prison work, under the terms of which prisoners convicted for the first time could work outside the prison for public or private entities, on the basis of contracts concluded between the management

of the prison and the entity offering the work. It requested the Government to provide information on the manner in which prison labour is organized. The Committee noted the Government’s indication in its latest report that the arrangements for the performance of prison labour have not yet been determined as a new Act on prison labour has just been adopted. The Government adds that, in the context of the current process of the revision of the Penal Code, there is a proposal to introduce alternative penalties to imprisonment. The Committee emphasized that, to be compatible with the Convention NO.29, work performed by prisoners for private entities must be carried out under conditions close to those of a free labour relationship, that is with the free and informed consent of the prisoners, and with certain guarantees and safeguards to ensure that the work is performed under conditions approximating a free labour relationship. The Committee requested the Government to provide a copy of the new Act on prison labour and other information relating to the working conditions guaranteed for prisoners performing work for private entities, the manner in which prisoners give their consent for such work and their remuneration.

Law enforcement

The government has yet to make progress in finalizing its national anti- trafficking action plan or to pass the necessary implementing regulations for the .

There is no coordination of anti trafficking efforts across ministries, although the attorney general’s office continued to demonstrate leadership in overseeing national anti-trafficking efforts. It partnered with provincial governments to establish inter-ministerial “reference groups” in three remaining provinces, which enabled complete national coverage. Consisting of local officials, police, border guards, social workers, NGOs, and faith-based organizations, the “reference groups” served to coordinate regional efforts to address trafficking and other crimes.

Although the Ministry of Labor acknowledged that child labor is pervasive and often abusive, it employed an inadequate number of labor inspectors, who lacked training and resources to adequately monitor for child trafficking and other labor violations, especially on farms in rural areas.

Prevention and protection measures

Despite enactment of a victim protection law and development of a referral mechanism for victims of all crimes in 2012, the government’s funding for and provision of protective services remained inadequate.

The government continued to manually compile anti-trafficking law enforcement data; however, it did not provide case-specific details.

The government sponsored the establishment of coordinating bodies, known as “reference groups,” in three additional provinces and reported its investigation of 27 trafficking cases. The government reported maintenance of strong law enforcement efforts, prosecuting 44 suspected traffickers and convicting 32—a continued increase from 24 convicted in 2013 and 23 in 2012.

However, the government did not finalize its national action plan or the implementing regulations for the 2008 anti-trafficking law. Furthermore, the government did not report its identification or protection of victims during the year.

The anti-trafficking law requires police protection for victims assisting in the investigation and prosecution of trafficking offenders; however, it is unclear if such protections were utilized during the year. The Ministry of Justice’s 2013 draft action plan to guide the efforts for victims’ protection and outline implementation of the 2012 witness protection law—including trafficking victims who cooperate with law enforcement—remained unfinished and unimplemented for the second consecutive year.

The multi-sectorial care mechanism, approved in 2012 to coordinate referral and protection for female victims of violence, appeared to remain inoperative in 2014. The government did not provide temporary residency status or legal alternatives to the removal of foreign victims to countries where they might face hardship or retribution. The lack of formal identification procedures precluded the government from ensuring no trafficking victims were inadvertently penalized detained, fined, or jailed for unlawful acts committed as a result of having been subjected to trafficking.

In 2014, government officials, in partnership with an NGO, conducted an awareness campaign for 150 members of a transportation association on how to recognize and report suspected trafficking cases. It also hosted seven anti- trafficking lectures for 600 government and civil sector personnel.

The government, in partnership with international organizations, continued to offer an anti-trafficking course for all newly recruited police officers, border guards, customs and immigration agents, and rapid intervention (riot) police. The course covered recognition of trafficking cases, protection of victims, child rights, and child custody law, and became a permanent component of the training curriculum during the year.

Mozambican officials hosted a national debate on combating trafficking for traditional leaders, border authorities, police, and NGOs; however, investigative techniques, training, capacity, and forensic abilities continued to be weak, particularly outside of the capital.

During the year, Mozambican officials held cross-border meetings with officials from South Africa’s Mpumalanga provincial anti-trafficking task team to discuss the repatriation of child trafficking victims.

RECOMMENDATIONS

Mozambique should take urgent steps to ensure that the regulations to provide for the administrative and institutional measures to implement its 2008 anti- trafficking law are developed. It should also finalize and implement its national action plan.

It needs to secure the necessary international and regional cooperation to obtain resources and build capacity to ensure effective law enforcement, protection of victims and prevention measures. This includes instituting a unified system for collecting trafficking case data.

In particular, steps need to be taken to build the capacity of the police anti- trafficking unit, the labor inspectorate, and the Women and Children’s Victim Assistance Units to investigate trafficking cases and provide short-term protection to victims. In terms of victims protection, it needs to develop a formal system to identify proactively trafficking victims among vulnerable populations; monitor the reported growth of commercial sex in Tete and Cabo Delgado provinces and train officials to investigate and prosecute those facilitating child or forced prostitution; expand the availability of protective services for victims via increased funding to the Ministry of Gender, Children, and Social Action and NGOs; continue training law enforcement officers in victim identification, particularly at border points.

Mozambique should Increase efforts to prosecute and convict suspected trafficking offenders.

The government should also consider establishment of an inter-ministerial body to coordinate anti-trafficking efforts nationwide; and launch anti-trafficking awareness campaigns in additional municipalities and provinces outside Maputo and Beira.

NAMIBIA

Legal framework

The Labour Act Act No. 11, 2007 prohibits forced labour and provides for severe penalties for violations. Article 4. (2) defines “forced labour” to include – (a) any work or service performed or rendered involuntarily by an individual under threat of any penalty, punishment or other harm to be imposed or inflicted on or caused to that individual by any other individual, if the firstmentioned individual does not perform the work or render the service; (b) any work, performed by an employee’s child who is under the age of 18 years, if the work is performed in terms of an arrangement or scheme in any undertaking between the employer and the employee; (c) any work performed by any individual because that individual is for any reason subject to the control, supervision or jurisdiction of a traditional leader in that leader’s capacity as traditional leader. Article 4(3) specifies that it is an offence for any person to directly or indirectly, cause, permit or require an individual to perform forced labour prohibited under this section and a person who is convicted of the offence is liable to a fine not exceeding N$20 000, or to imprisonment for a period not exceeding four years or to both the fine and imprisonment.

The Prevention of Organised Crime Act, 2004 (No.29 of 2004), introduces measures to combat organized crime and prohibits trafficking in persons and smuggling of migrants. It prescribes strict punishment of up to fifty years’ in prison and or/and huge fines.

In January 2015, Parliament passed the Child Care and Protection Bill, which were enacted by presidential signature in April 2015, criminalizing child trafficking and outlining protections for such victims.

Forms and manifestations of forced labour and human trafficking

Namibia is predominantly a country of origin and destination for children and, to a lesser extent, women subjected to forced labor and sex trafficking 60. Some victims are initially offered legitimate work for adequate wages, but eventually end up subjected to forced labour in urban areas and on commercial farms.

Traffickers exploit Namibian children within the country through forced labor

60 Namibia was granted a waiver from an otherwise required downgrade to Tier 3 because its government has a written plan that, if implemented, would constitute making significant efforts to bring itself into compliance with the minimum standards for the elimination of trafficking and it has committed to devoting sufficient resources to implement that plan.

in agriculture, cattle herding, and domestic service, as well as prostitution in the main cities of Windhoek and Walvis Bay.

Namibians commonly house and care for children of distant relatives to provide expanded educational opportunities; however, in some instances, these children are exploited in forced labor and domestic servitude.

Indigenous people are vulnerable to exploitation and among the San and Zemba, children are particularly vulnerable to forced labor on farms or in homes and, to a lesser extent, are exploited in prostitution. NGOs reported persons in prostitution being taken aboard foreign vessels off the Namibian coast, some of whom may be trafficking victims.

Children from Angola, Zambia, and Zimbabwe are subjected to prostitution and forced labor in the fishing sector and in organized street vending in Windhoek and other cities. Angolan children may be brought to Namibia for forced labor in cattle herding or to sell drugs. There were reports of exploitative labor—possibly also forced labor—involving foreign adults and Namibian adults and children in Chinese-owned retail, construction, and fishing operations.

Chinese construction and mining companies continued to attract criticism for the conditions under which they employed Namibian workers; however, the government failed to investigate and prosecute suspected forced labor offenders by these companies in 2014.61

Comments from ILO supervisory bodies

In a Direct request62 under Article 25 of the Convention, relating to penalties for the exaction of forced or compulsory labour, the CEACR again sought information concerning the application of section 4(3) of the Labour Act, 2007, pursuant to which the exaction of forced labour is punishable with penalties of imprisonment for a term of up to four years and heavy fines. It also requested information on the measures taken to provide training to law enforcement officials and labour inspectors in this regard. The Committee noted the Government’s statement that there have been no recorded cases concerning violations of section 4(3) of the Labour Act. The Government indicated that

61 TIP 2015 report, Country narrative, http://www.state.gov/j/tip/rls/tiprpt/countries/2015/243499.htm 62 Direct Request (CEACR) - adopted 2013, published 103rd ILC session (2014) Forced Labour Convention, 1930 (No. 29) - Namibia (Ratification: 2000)

labour inspectors and law enforcement officials are provided with training on a regular basis in this regard.

In regard to penalties imposed for trafficking in persons, the Committee previously noted that section 15 of the Prevention of Organized Crime Act prohibits both cross border and internal trafficking. However, it observed that pursuant to this provision, a person convicted of trafficking could possibly only be required to pay a fine. In this respect, the Committee recalled that, given the seriousness of the offence of trafficking and the importance of sufficiently dissuasive penalties, legislation allowing for perpetrators of trafficking in persons to only be punished with a fine cannot be considered effective.

The Committee noted the Government’s reference to one case reported to police related to human trafficking, where the charges were later withdrawn.The Committee requested the Government to continue to provide information on the application of section 15 of the Prevention of Organized Crime Act in practice, including the number of investigations, prosecutions and convictions related to trafficking in persons, as well as the specific penalties applied to those convicted.

Law enforcement

According to the TIP Report 2015, the failed to initiate any new prosecutions during the year and has never convicted a trafficking offender. Some Namibian officials continued to demonstrate a reluctance to acknowledge trafficking and incorrectly insisted that transnational movement is a defining element of trafficking crimes. The government failed to fully institute formal victim identification and referral processes, which led to the deportation of potential victims in 2014. Lack of effective inter-ministerial coordination in the development and implementation of anti-trafficking programming remained a key concern.

The Ministry of Gender Equality and Child Welfare (MGECW), the government’s anti-trafficking lead, continued to coordinate the efforts of an inter-ministerial committee responsible for drafting anti-trafficking legislation, including specific protections for trafficking victims, prevention measures, and harsher punishments for child trafficking offenses. The draft Child Care and

Protection Bill advanced to the Law Reform Commission and was distributed to the Cabinet Committee on Legislation, but has not yet come into effect.

The Ministry of Labor and Social Welfare did not report on its efforts to investigate forced labor offenses. Following the president’s public criticism of Chinese businesses for mistreating Namibians and violating Namibian labor law in the previous reporting period, Chinese construction and mining companies continued to attract criticism for the conditions under which they employed Namibian workers; however, the government failed to investigate and prosecute suspected forced labor offenders by these companies in 2014. The government did not investigate allegations of children working in the homes of officials in 2014 or initiate prosecutions or convictions of government officials complicit in human trafficking crimes.

Prevention and protection measures

According to the TIP 2015 Report the government made minimal efforts to prevent human trafficking during the reporting period. The government did not conduct any significant awareness campaigns during the reporting period. The MGECW coordinated an inter-ministerial committee and technical working group both specifically tasked to address trafficking efforts in collaboration with other ministries at the working level; however, it is unclear whether these entities were able to coordinate efforts or delegate responsibilities to relevant stakeholder ministries in developing and implementing trafficking programming. The government appeared to make only limited progress toward implementing the National Plan of Action on Gender-Based Violence 2012-2016, including the anti-trafficking strategy portions of the plan. The Ministry of Labor and Social Welfare employed 67 labor inspectors and 21 occupational health and safety inspectors in 2014, which were responsible for enforcing laws against child labor; however, inspectors did not formally identify any child labor violations during the 2,187 labor and 561 occupational health and safety inspections conducted in 2014. The government did not make efforts to reduce demand for commercial sex acts or forced labour. The government did not report any measures taken to prevent trafficking among Namibian diplomats posted abroad.

Ordinarily, upon identification of a woman or child victim of crime, including trafficking, police transferred the victim to the Women and Child Protection Unit (WACPU), which has responsibility for referring victims of all crimes to temporary shelter and medical assistance provided by NGOs or other entities. The government did not have formal written procedures to guide officials on the identification of victims or their subsequent referral to care. WACPU’s facilities offered initial psycho-social, legal, and medical support to victims of crime, in cooperation with the Namibian Police, MGECW, the Ministry of Health, and NGOs; however, it remained unclear whether trafficking victims received such services during the year. At least some of the seven renovated

facilities that provide long-term accommodations for women and child victims of gender-based violence and human trafficking under the management of MGECW remained inoperative, without the capacity or staff to provide victim services during the year. MGECW provided a social worker and partial coverage of operational costs to the one NGO-managed facility. The NGO- managed facility assisted several trafficking victims during the year.

The government did not have a policy in place to encourage victims’ participation in investigations. The law provides that special accommodations may be made for vulnerable witnesses, potentially including trafficking victims; however, there was no evidence these measures have been employed in trafficking cases. There were no reports victims were detained, fined, or jailed for unlawful acts committed as a direct result of being subjected to trafficking. The government neither made systematic efforts to identify trafficking victims nor employed any mechanism for screening among illegal migrants or individuals in prostitution, which may have left victims unidentified in the law enforcement system. Although no foreign victims were identified in Namibia in 2014, there continued to be reports among local authorities in Rundu and NGOs in Windhoek that police and immigration officials deport foreign street children. In addition, the government remained without the ability to provide temporary or permanent residency to foreign victims.

Recommendations for Namibia

It is imperative that the Prevention of Organised Crime Act is brought into effect. Moreover, as suggested in the TIP Report Namibia needs to :

 increase efforts to investigate and prosecute trafficking offences, and convict and punish trafficking offenders under existing law;  develop and implement systematic procedures for the proactive identification of victims and their subsequent referral to care;  train officials on relevant legislation and identification and referral procedures;  train judicial officials to promote consistent use of a broad definition of human trafficking that does not rely on evidence of movement, but focuses on exploitation;  allocate resources and develop a plan to fully operationalize renovated safe houses;  appoint a formal government lead for anti-trafficking efforts;  proactively investigate and criminally prosecute employers accused of forced labor violations in Chinese retail, construction, and fishing operations;  strengthen coordination among government ministries, at both the minister and the working level; and

 institute a unified system for collecting trafficking case data for use by all stakeholders.

REPUBLIC OF SEYCHELLES

Legal and institutional framework

The Constitution in Articles 16 and 17 establishes that “every person has a right to be treated with dignity worthy of a human being and not be subjected to torture, cruel, inhuman or degrading treatment or punishment.” Article 17 provides that : 1.Every person has a right not to be held in slavery or bondage 2. Every person has a right not to be compelled to perform compulsory forced or compulsory labour. 3. Labour forced or compelled to be performed pursuant to a law necessary in a democratic society does not infringe this clause.

These articles are further supported by Section 251 of the Penal Code 1955, updated in 1996, which also makes provisions for the illegality of the importing, removing, buying, selling, detaining, receiving, accepting or disposing of any person. The Penal Code prohibits and prescribes a punishment of three years‟ imprisonment for forced labour. Section 249 of the Penal Code outlaws slavery and prescribes penalties of 10 years‟ imprisonment. Sections 155, 156, and 138 of the Penal Code outlaw brothel- keeping, pimping, and procuring women or girls to engage in prostitution within Seychelles or abroad, prescribing punishments of three years‟, five years‟, and two years‟ imprisonment, respectively.

The Prohibition of Trafficking in Persons Act of 2014 prohibits all forms of trafficking in adults and children. The law prescribes penalties of a maximum of 14 years’ imprisonment, and in cases involving children or aggravating circumstances, a maximum of 25 years’ imprisonment. Elements of human trafficking are also prohibited under a variety of other statutes, including Section 259 of the penal code, which prohibits slavery, and Section 251 of the penal code which prohibits forced labor.

The Employment Act makes provision in Article 67 that “Non-Seychellois workers, not exempt from the provisions of this Act, shall enjoy the same terms and conditions of employment as are applicable to Seychellois workers but may be given such additional benefits and privileges as the competent officer may authorize.”

At the regional level, Seychelles is a party to the African Charter on Human and Peoples’ Rights, its Protocol on the Rights of Women in Africa, the

African Charter on the Rights and Welfare of the Child and the Southern African Development Community Gender and Development Protocol. Seychelles has signed specific and thematic labour protocols such as the Southern African Development Community (SADC) Code of Conduct on HIV and AIDS and Employment in the Southern African Development Community, 1997 and the Global Jobs Pact in Africa (Ouagadougou, 2009). The former aims to remove discrimination Against People Living with HIV and Aids in the workplace and in employment, whilst the latter seeks to orient relevant national and international policies stimulate economic recovery through the seamless process of creating sustainable enterprises, generating decent productive jobs, providing social protection.

Seychelles has also endorsed the Decent Work Country Programme (2011 - 2015), which seeks to improve work conditions throughout the workplace and in all employment and labour. It is also a tool for cooperation with the ILO. The Programme has for strategic objectives, which concentrates in the areas of employment, rights at work, social protection and social dialogue. The Programme’s three core priorities are identified as (1) to review labour legislation and strengthen the dispute resolution framework; (2) Promotion of quality employment and reduction of unemployment, particularly for women and youth; and (3) promotion of effective tripartism and Social dialogue.

Forms and manifestations of forced labour and human trafficking in Seychelles

Seychelles has a large population of both tourists and migrant workers. In 2012, the estimated number of tourists was 208,000, almost three times the size of its population,63 while foreign migrant workers constituted about 20 per cent of its population. Migrant workers in Seychelles have increased from some 2000 in the 1990s 12,430 migrant workers in 2012. The private sector was the largest employer with 2,264 in 2001 and 10,445 in 2009. Most of the workers are from the Asian continent, especially from India and Sri Lanka, representing 96% of the total. The other nationalities are in the minority with less than 1% from the African continent and others (2.7%).64

63 National Bureau of Statistics, “Seychelles in figures” (Victoria, Mahe, 2013). 64 Initial State Party report of the Republic of Seychelles to the Committee on Migrant Workers : Implementation of the International Convention on the Protection of the Rights of all Migrant Workers and members of the their families, at para 72.

According to the Special Rapporteur on trafficking in persons65, the phenomenon of trafficking in persons in Seychelles is at best insidious and remains hidden as a result of lack of awareness. Cases of mixed migration and trafficking for the purpose of labour exploitation reportedly involving migrant workers in the construction and fishery sectors from Bangladesh, China, India, Kenya, Madagascar, Sri Lanka and the Philippines were also identified. Moreover, a growing use of migrant domestic workers, with possible indications of links to domestic servitude, especially from Madagascar, Mauritius, Nepal, Philippines and Sri Lanka, emerged as an issue during the visit. There were also reports of possible trafficking into fishing vessels following the case of nine Pakistanis found abandoned in a port in Victoria and assisted by a local civil society organization. Root causes of trafficking include poverty and lack of economic opportunities in source countries. The high demand for unskilled labour in the construction and fishery sectors based in Seychelles, as well as demand for cheap domestic work from middle/high-income households in Seychelles, also fuel trafficking in persons. It should be noted that Seychellois nationals are reluctant to take up low-paying work, leaving the aforementioned sectors in need of a foreign workforce. Moreover, the flourishing tourism industry and the demand for commercial sexual services by nationals, tourists and the large population of male migrant workers are some of the underlying factors contributing to trafficking in women and children for sexual exploitation. The growing prevalence of drug and substance dependence also fuel Seychellois children’s vulnerability to in-country sex trafficking. A significant portion of migrants work within the Seychelles International Trade Zone (SITZ) where the national Labour Law – the Employment Act 1995, which protects workers’ rights – is inapplicable. However, the International Trade Zone (Employment) Regulations 1997 and the International Trade Zone (Conditions of Employment) Order 1997, are applicable and, as posited by the Government, do not make the workers any more vulnerable to situations of forced labour than workers who work outside of the SITZ. The Special Rapporteur was informed of several cases of unskilled and semi-skilled migrant workers, especially from Bangladesh, China and India, reportedly facing exploitation, including poor working conditions, underpayment and late payment of wages, substandard housing and withholding of passports – possible indicators of forced labour. Over the past two years, a number of public demonstrations held by groups of migrant workers to peacefully protest about their working conditions have resulted in their deportation. There were also allegations of two suicides of migrant workers, which were attributed to work-related frustrations. The Special Rapporteur noted that the Employment and other related acts apply to both Seychellois and foreigners. In this regard she also welcomes the increase in wage as of January 2014 to all workers, including migrants. However, cumbersome procedures and

65 Cite report.

penalties for going on strike, 66 which include prosecution, payment of a fine ranging from Sr 5,000 to Sr 10,000 and deportation, dissuade migrant workers from exercising their rights to strike. In the almost complete absence of accurate data on trafficking in persons from both the State and civil society organizations, the Special Rapporteur found it difficult to assess the exact scope and magnitude of trafficking in persons, especially women and children.

The TIP Report 201567 lists Seychelles as a source country for children subjected to sex trafficking and a destination country for foreign men and women subjected to labor and sex trafficking, respectively. Seychellois girls and, according to some sources, boys are induced into prostitution—particularly on the main island of Mahe—by peers, family members, and pimps for exploitation in nightclubs, bars, guest houses, hotels, brothels, private homes, and on the street.

Despite several complaints by migrant workers, primarily in the construction sector, about poor working conditions, nonpayment of salaries, and retention of passports, the government has never identified a case of forced labor in the country. Allegations have been made of deporations of migrant workers who complained about working conditions. Migrant workers—including those from China, Kenya, Madagascar, and various countries in South Asia—are primarily employed in the fishing and construction sectors. Migrant workers are said to be subjected to forced labor in the construction sector.

According to the TIP 2105 report, NGOs reported that migrant workers face exploitative conditions in fish processing plants, and fishermen aboard foreign- flagged fishing vessels in Seychelles’ territorial waters and ports are subjected to abuses indicative of forced labor, including nonpayment of wages and physical abuse. The Special Rapporteur on Trafficking in persons68 also reports having received information from non-governmental sources that fishermen on board Asian fishing boats in Seychelles territorial waters or ports have reportedly been subjected to abuse, including, but not limited to, denial of payment, physical abuse and being left abandoned in ports. A case in point involves nine Pakistani fishermen allegedly abandoned in a port in Victoria for nine months. According to information provided, the fishermen had not received wages for an entire year’s work on board the Asian fishing vessel.

66 Industrial Relations Act 17 of 1994, sects. 52 to 58. 67 http://www.state.gov/j/tip/rls/tiprpt/countries/2015/243524.htm 68 See www.ohchr.org, Report ot the Special Rapporteur on trafficking – Mission to Seychelles A/HRC-26-37-Add7_en

In relation to domestic servitude the Special Rapporteur on Trafficking in Persons noted that from January to August 2013, the Immigration Division issued Gainful Occupational Permits to 40 foreign domestic workers in Seychelles employed as carers, live-in nannies and housemaids, inter alia.69 Of these, 80 per cent were female. While not all domestic workers are victims of trafficking, the Special Rapporteur received information indicating possible trafficking for the purpose of domestic servitude. Increasing evidence suggests that young women from Madagascar, Mauritius, Nepal, Philippines and Sri Lanka, most of whom are single mothers from rural areas and with limited education, are brought into Seychelles and deceived into working long hours, with little or no pay and with restricted freedom of movement. A case in point involves a Mauritian victim of domestic servitude identified by a health worker who realized that her passport had been withheld by her employer and that she had not received payment for her work.

Law enforcement

Although all forms of child prostitution are prohibited under the anti-trafficking law, enforcement of this prohibition may be hampered by unclear and conflicting statutes in other areas of the penal code which do not clearly define the ages of consent and legal majority, creating confusion between the traditionally understood age of consent (15 years of age) and the legal age of majority (18 years of age).

The national anti-trafficking committee served as a coordinating body for collaboration and communication on trafficking matters; the committee met regularly during the reporting period, but did not receive a dedicated budget and relied on ad hoc funding from various government agencies.

As a result, the implementation of the 2014-2015 national action plan was slow and many activities remained in early planning stages.

The government conducted a two-month nationwide media campaign to raise awareness on trafficking; the campaign was funded by an international organization. As part of this campaign, the Ministry of Home Affairs and Transport developed a website to educate the general public on how to identify and report trafficking offenses.

The Ministry of Labor and Human Resource Development employed 11 labor inspectors responsible for conducting inspections of all workplaces in the

69 Ministry of Labour and Human Resource Development, Statistics for trafficking in persons delegation (January 2014), table 3.1.

country and one labor officer assigned to inform all migrant workers of their employment rights; government officials acknowledged this number was inadequate and inspectors lacked basic resources to perform their duties adequately.

The MLHRD conducts inspections and monitors working conditions of migrant workers. Claims related to rights of migrant workers are often fast-tracked by the MLHRD, thus reducing the necessity of court involvement through active mediation. Necessary legal action is also taken against companies which are found to be in violation of the rights of migrant workers.

According to the TIP 2015 Report, the Government of Seychelles does not fully comply with the minimum standards for the elimination of trafficking; however, it is making significant efforts to do so. The national anti-trafficking committee, in collaboration with international donors, began the development of a victim assistance tool and conducted an extensive national awareness campaign on trafficking. However, the government did not report any prosecutions or convictions of trafficking offenders and did not identify any trafficking victims. The government deports migrant workers working for state- owned or private companies for participating in strikes to protest poor employment conditions without conducting comprehensive investigations and screenings to identify if the individuals were victims of forced labor.

Recommendations for Seychelles

The TIP 2015 report recommends that the government should :

 Use the newly adopted anti-trafficking legislation to investigate and prosecute trafficking offenses and convict and punish trafficking offenders;  amend the penal code to harmonize the duplicative and contradictory sections addressing sexual offenses—particularly those related to the exploitation of children in prostitution—to ensure the prohibition of and sufficiently stringent punishment for the prostitution of all persons under 18 years of age and the forced prostitution of adults;  provide specialized training to government officials—including members of the national committee on human trafficking, law enforcement officials, social workers, and labor inspectors—on how to identify victims of trafficking and refer them to appropriate services; implement the national action plan to combat human trafficking and dedicate appropriate resources towards its implementation;

 provide adequate resources to labor inspectors to conduct regular and comprehensive inspections of migrant workers’ work sites and inform the migrant workers of their employment rights;  institute a standardized contract governing the employment of domestic workers within private homes; and  continue awareness campaigns on trafficking to increase the understanding of the crime among the local population and the large number of foreign tourists and migrant workers entering the country.

SOUTH AFRICA

Legal framework

The Prevention and Combating of Trafficking in Persons Act (PACOTIP), signed in July 2013, finally came into force in June 2015, strengthening the legal framework to combat human trafficking for the purposes of forced labour and forced prostitution in South Africa. Section 4(1) of the Act prohibits trafficking in persons. The Act also contains provisions prohibiting debt bondage (section 5), using the services of victims of trafficking (section 7) and facilitating trafficking in persons (section 8). Moreover, the Act contains measures for the protection of victims of trafficking, including the granting of a recovery and reflection period, measures for appropriate repatriation and provisions for the compensation of victims. The Act provides for the adoption of a National Policy Framework to ensure a uniform, coordinated and cooperative approach by all government departments, organs of state and institutions in dealing with matters relating to the trafficking in persons. It provides that the National Commissioner of the South African Police Services, the Departments of Home Affairs and Labour and the National Director of Public Prosecution Departments must issue national instructions and directives to be followed by their officials when addressing matters of trafficking in persons. Non-compliance with such directives may result in disciplinary steps, contributing to the effectiveness of the Act. The Government indicates that the operationalization of the law is dependent on the regulations made by a number of departments, and that this is receiving urgent attention.

The Basic Conditions of Employment Act of 1997 (BCEA) prohibits forced labour and in 2014, the government amended it to extend prohibitions to the informal sector and doubled prescribed maximum penalties for forced labor for both children and adults from three to six years’ imprisonment.

The Children’s Amendment Act prescribes penalties of five years to life imprisonment or fines for the use, procurement, or offer of a child for slavery, commercial sexual exploitation, or to commit crimes.

The Prevention of Organized Crime Act of 1998 is sometimes used in combination with the Sexual Offences Act to add additional charges— including money laundering, racketeering, and criminal gang activity—and stiffer penalties against offenders.

Forms and manifestations of forced labour and human trafficking in South Africa

South Africa70 is both a key destination as well as a country of origin and transit point for individuals trafficked to and from Africa and Europe, as well as globally.

The Tsiriledzani report identified the prevalence of including trafficking for sexual exploitation, forced marriage, domestic servitude, forced labour, begging, and criminal activity that affected workers both local and migrants in South Africa from other African countries. Trafficking from other African countries involves both larger networks and looser local networks like taxi and truck drivers. Truck drivers often act as links in the trafficking chain that supplies sex workers to ‘receptionists’ for brothels in the SADC region.

South Africa has the potential for high levels of internal trafficking due to “its unique socio-political history and stark economic inequalities.” As a result internal trafficking occurs from rural areas to cities. South Africans constitute the largest number of victims within the country, and are recruited from regions with lower socio-economic status, for example, from provinces such as Mpumalanga, Limpopo, Northern Cape and Eastern Cape, as well as informal settlements or the rural areas of the Western Cape, Free State and Gauteng. The victims are mainly trafficked to the urban centres of Johannesburg, Pretoria, Cape Town, Bloemfontein and Durban.

Women and girls constitute the largest numbers of victims trafficked for forced labour, domestic servitude and sexual exploitation. Forced marriage of girls as young as twelve to adult men, in terms of the cultural practice of ukuthwala, is practiced in some remote villages in Eastern and Western Cape provinces, resulting in increased vulnerability to forced labor in the form of domestic servitude and forced prostitution. Employment agencies are involved in trafficking coloured girls and young women from the rural areas of the Western, Eastern, and Northern Cape and North West to work in domestic service in the suburbs of Cape Town, where they are subjected to slave-like working conditions and find themselves in debt bondage to pay off recruitment fees. Child domestic workers are generally recruited from impoverished rural areas with promises of work, but their terms of employment can include forced labour, slavery-like conditions, sexual exploitation and debt bondage. Adults and children living in impoverished conditions and child-headed household due to HIV/AIDS, are most vulnerable to this form of trafficking. There was also strong evidence for the trafficking of men and boys from Lesotho for illegal mining in the Free State (mostly to Kimberly and Welkom), involving sophisticated supply chains that include middlemen called ‘cables’ because of

70 SA was assigned a Tier 2 Watch List1 status for the years 2005 to 2008 in the annual US Department of State Trafficking in Persons Reports.

their role in linking demand and supply. Also, it found that young boys are also trafficked to smuggle drugs and for other criminal activities. In addition, boys were trafficked into forced labour in street vending, food services, begging, criminal activities, and agriculture. Large numbers of children, including those with disabilities, are exploited in forced begging71. Forced labor is reportedly used in fruit and vegetable farms across South Africa and vineyards in the Western Cape.

Domestic trafficking also involves a variety of perpetrators ranging from crime syndicates, to informal local networks, to family members. The domestic trafficking of children is often perpetrated by close family members, including the parents themselves. A number of ‘enablers’ are involved in the illegal human movement from Zimbabwe into the neighbouring countries of Botswana, South Africa, Mozambique and Zambia. Malaichas (drivers who help people cross the borders illegally) or gumagumas (gangs which prey on migrants trying to cross the border on foot) are well known as smugglers and are also involved in trafficking activities, especially the trafficking of children. Members of the local population have been forced to mine for diamonds in the Marange region. Within Zimbabwe, youth militias of the Zimbabwe African National Union (ZANU) have been identified as traffickers who have abducted women and girls (especially opposition supporters) for sexual and domestic servitude at command bases.

It has been identified as a transit country for victims trafficked through Lesotho and Swaziland to other foreign destinations, although trafficking out of South Africa, which is much less voluminous than trafficking into the country.72

It is a destination country for short-distance trafficking of victims from Mozambique and Zimbabwe but also Malawi, Swaziland and Lesotho. Victims are mostly women, girls and boys trafficked for a variety of purposes, including forced labour73. Mozambican and Malawian boys and young men are trafficked to South Africa for agricultural labour and work on the mines. Young women and children in the southern African region are especially vulnerable to the recruitment tactics of traffickers because civil unrest and economic deprivation leave them with few opportunities at home and make migration a natural and common solution. Furthermore, the HIV/ AIDS

71 Ibid. 72 The International Organisation for Migration (IOM) in Pretoria recorded eight cases of trafficking from South Africa between January 2004 and January 2008. Destination countries include Ireland, Zimbabwe, Israel, Switzerland and the Netherlands. There were also cases of women being trafficked to Macau.

73 Tsiriledzani report (2010)

pandemic has resulted in many households headed by widows or orphans, while the region’s ongoing food crisis has exacerbated the vulnerability of households. In these conditions, parents have been known to sell their children to passers-by.74 Street children from Maseru in Lesotho are trafficked by long distance truck drivers to neighbouring for sexual exploitation75. Among the destination countries noted are Zimbabwe, Zambia and South Africa, with the towns of the eastern Free State, which borders on Lesotho, specifically mentioned. The IOM notes that children are either forcibly abducted or are lured to South Africa on false promises of employment. There appears to be a clear link between child labour and trafficking, and according to the IOM76, the promises of employment or education made by the traffickers are appealing and seem credible to the child victims since the historical migration patterns in southern Africa tend to flow southwards to the relative prosperity of South Africa and northwards to Europe. The transnational communication and transportation networks have given people a broader awareness of opportunities that exist elsewhere, leading to increased cross-border migration, whether documented or undocumented.

Migrant workers from the SADC, particularly undocumented migrants, are particularly at risk and their trafficking into forced labour and abuse and exploitation in lesser forms is commonplace. Migrants are employed in domestic services and in the agricultural, security, hospitality and retail sectors. Their vulnerability is often exploited by employers and unscrupulous labour brokers. There has also been an increase in female migration from rural to urban areas within the country in recent years. These women tend to be employed in less-skilled jobs, particularly domestic work in urban areas, with many cases of domestic servitude.

According to a study conducted by CALS (cite issue brief Understanding human trafficking) and an undue emphasis on trafficking for sexual exploitation this obscures the real but less sensationalist exploitation of undocumented migrants and vulnerable workers in largely unregulated or unmonitored sectors such as domestic work, farm labour and forms of casual construction work. Other areas of policy and law that affect more substantial numbers of people, including cross-border migration, remain poorly addressed, if at all, despite many years of debate. The report also refers to lack of documentation as being a factor that exposes migrants to a greater risk of labour exploitation in South Africa, because employers know that undocumented employees are unlikely to report abuses (African Centre for Migration and Society, 2009). It recommends that establishing a broad range

74 Tsiriledzani report citing an IOM study 2003 75 IOM 2003 76 Martens et al 2003

of simple, inexpensive and well-publicized legal channels for immigration into South Africa would narrow the opportunities for traffickers to mislead potential migrants and profit from exploitation, and would encourage migrants to use formal immigration channels where their rights and safety would be better protected.

Chinese women and girls are recruited from among poorly educated and unemployed village communities. False offers of employment in restaurants and clubs, or opportunities to study English, are made to them, but upon arrival they are trafficked into the sex industry in clubs and restaurants owned and operated by mafia-type organizations. The victims have no freedom of movement and all their earnings go directly to the restaurant or club, or in payment of the debt incurred in bringing them to South Africa (Martens et al 2003). Government and NGOs report an increase in Pakistanis and Bangladeshis subjected to bonded labor in businesses owned by their nationals.

Farm workers in South Africa are particularly vulnerable to exploitation in forced labour. A research study conducted 77 reached the following conclusions amongst others :“Non-permanent workers in the sugar industry are especially vulnerable: not only is their employment externalised, but they are often migrants and, in case of Nkomazi, foreign migrants. The scope for exploitation of such workers is therefore high. Reasons provided by producers for employing migrants were that locals were allegedly not prepared to do the work “for cultural reasons”; that it was “below them to do this type of work”. However, a more likely explanation is that the terms and conditions of work in this subsector are poor. Hours of work tend to be short: while some employers in the sugar industry pay workers at or above the legislated minimum hourly wage, their wages are low because they work for less than nine hours a day. It was also alleged that some small, black farmers in areas under the control of traditional councils and some land reform beneficiaries were not paying workers the minimum wage in the sugar sector. Consistent allegations were also made that small, black contractors employed in the sugar cane industry were not only using “illegal foreigners”, but were not compliant with labour legislation”.(page IV)

The paper makes reference to the increasing integration of South African

77 Farm Workers’ Living and Working Conditions in South Africa: key trends, emergent issues, and underlying and structural problems, M. Visser and S. Ferrer, 2015 http://www.ilo.org/wcmsp5/groups/public/--- africa/documents/publication/wcms_385959.pdf

producers into global value chains as a result of global trade liberalization.78 The combined processes of market deregulation and supermarket consolidation have served to weaken producers’ collective bargaining power in the market place. As a result, some of the agricultural value chains, which were previously controlled by South African producers, are now controlled by international retailers. In this context, the existence of forced labour and other forms of slavery-like practices in global value chains comes into scrutiny. Governments have a duty under international human rights law to create a regulatory framework that ensures business due diligence in supply chains. The regulation of human rights and ensuring transparency in supply chains has therefore achieved increasing global momentum with greater emphasis on business responsibility to respect human rights and avoid adverse impacts in their operations and relationships, as well as the duty under Pillar iii of the UNGPS to remediate human rights abuses79.

Migrant workers, documented and undocumented, are some of the most vulnerable farm workers either working legally or illegally in South Africa. Serious violations of their labour rights have been recorded and their vulnerability is excerbated by the brutal violence associated with xenophobia that is prevalent in certain parts of the country. For example, the De Doorns violence from 14-17 November 2009 resulted in the forceful displacement of an estimated 3000 Zimbabweans and the destruction and looting of their dwellings by their South African neighbours (Misago, 2009). According to Misago (2009), Zimbabwean workers had been moving into the area rapidly, due to a Home Affairs office opening in the local town. They secured work permits via an alleged abuse of the asylum system. South African workers alleged that commercial farmers preferred Zimbabwean workers, who were more willing to accept long hours and poor overtime pay. The conflict was allegedly orchestrated by South African labour brokers, who wanted to drive out Zimbabwean labour brokers. The South African labour brokers seemed to be affiliated to local municipal councillors.

The US TIP 2015 report observes that, for the third consecutive year, foreign male forced labor victims were discovered aboard fishing vessels in South Africa’s territorial waters; in 2014, NGOs reported an increased number of victims—10 to 15 victims each month—disembarking in Cape Town. (United States Trafficking in Persons Report 2015, http://www.state.gov/j/tip/rls/tiprpt/ . A recent study, “In African Waters”80 confirms that traffickers have exploited

78 Page 3 79 This formed the basis of the report in September 2015 to the HRC of the SR CFS cite. 80 In African Waters : trafficking of Cambodian Fishers in South Africa, 2014, Nexus Institute and International Organisation of Migration.

victims in the territorial waters of Mauritius, South Africa and Senegal, as well as aboard small lake-based boats in Ghana and Kenya. It exposes the situation of Cambodian fishermen (who migrated for work in the fishing industry through a legally registered recruitment agency in Cambodia) who were trafficked and exploited in forced labour on fishing vessels off the coast of South Africa. All but two of the 31 Cambodians in this study experienced physical abuse and violence while trafficked on fishing vessels in the oceans around South Africa.Men described a wide array of assaults and abuses perpetrated against them – for example, being hit with hands and fists, as well as beaten with batons and bamboo sticks and attacked with weapons, in order to extract their labour. 81

Law enforcement

In March 2014, Parliament passed amendments to the 2012 Employment Services bill, which was awaiting presidential assent at the end of the reporting period. Though the bill does not ban labor brokers, it requires DOL to license and regulate private employment agencies and prohibits those agencies from charging fees for their services unless explicitly authorized by the Minister of Labour.

The Department of Labour conducted inspections of farms in the Limpopo region in 2014 to ensure workers were not victims of forced labor or other violations; as a result, the government fined 10 farmers for underpaying workers.

However, according to the TIP report, the government failed to systematically address trafficking for forced labour. A serious lack of capacity and widespread corruption among the police force stymied progress in anti- trafficking law enforcement efforts. While the majority of trafficking victims in South Africa are labor trafficking victims, the government did not initiate prosecution or obtain convictions of any labor traffickers in 2014. The government did not comprehensively monitor or investigate forced child labor or the labor trafficking of adults in the agricultural, mining, construction, and fishing sectors. DOL inspectors continued to use the BCEA as their core enforcement mechanism and mostly failed to consider trafficking crimes within this workload. The first prosecution of a domestic servitude case, initiated in October 2013 against a father and son in Western Cape, remained pending.

81 Ibid, p. 5

Committee of Experts supervision of compliance with Forced Labour Conventions The CEACR has drawn the government’s attention to the paragraphs Article 2(2)(c) of Convention No. 29 on “Work of prisoners for private enterprises” and Article 1(c) and 1(d) of Convention No. 105 on “Disciplinary measures applicable to seafarers” as particular areas where the national legislation on forced and compulsory labour is not compatible with the respective Convention.

The CEACR, in a direct request made under Articles 1(1) and 2(1) of the Convention, 82 urged the government to enhance the capacity of law enforcement officials in regard to enforcement of the Prevention and Combating of Trafficking in Persons Act, 2013. It requested government to provide information on the number of investigations, prosecutions and convictions under the Act. The Committee, noting the information in a 2009 report from the International Trade Union Confederation that corruption among the border police had facilitated the spread of the phenomenon, and that the Government had made little progress in its efforts to prosecute or convict suspected traffickers, requested the government to ensure that all persons who engage in human trafficking, including complicit governmental officials, were subject to thorough investigations and robust prosecutions.

In the same Direct Request the CEACR raised an issue related to Article 2(2)(c) of Convention 29 concerning work of prisoners for private enterprises. In its previous comments, the Committee noted that, under section 37(1)(b) of the Correctional Services Act (No. 111 of 1998), every prisoner must perform any labour which is related to any development programme or which generally is designed to foster habits of industry. The Committee also noted the Government’s indication that Department Order B, Service Order (5) states that prisoners may be available to private hirers but that no offender is forced to perform such labour. In this regard, the Committee noted that, under this Order, “prisoners who are required for the performance of skilled labour may only be provided to employers with the prior written authorization of the Commissioner” (Item I(xv)). The Committee noted that section 40(3)(a) of the Correctional Services Act states that a sentenced offender may select the type of work he or she prefers to perform, if such choice is practicable and in accordance with an appropriate vocational programme. Section 40(5) of the Correctional Services Act states that a

82 Direct Request (CEACR) - adopted 2013, published 103rd ILC session (2014)

Forced Labour Convention, 1930 (No. 29) - South Africa (Ratification: 1997)

prisoner may never be instructed or compelled to work as a form of punishment or disciplinary measure. However, the Committee also noted that section 40(1) of the Correctional Services Act states that sufficient work must, as far as is practicable, be provided to keep prisoners active for a normal working day and a prisoner may be compelled to do such work. The Committee requested information on the relevant provisions requiring the voluntary consent of the prisoners.

The Committee noted that the Government’s report does not contain new information relating to provisions or regulations requiring the voluntary consent of prisoners. However, the Committee notes the Government’s statement that private enterprises and non-governmental organizations are allowed to hire offenders to perform labour against a prescribed tariff. The Government states that the Department of Correctional Services pays all offenders who perform labour (including those working for private enterprises) a gratuity. The Government indicates that the hirers of prison labour are responsible to perform the duties of correctional officers in terms of safety, security and care.

Taking note of this information, the Committee observes that the described working conditions of prisoners for private enterprises do not appear to approximate a free labour relationship in terms of wages or measures related to occupational safety and health. The Committee therefore recalls thatArticle 2(2)(c) of the Convention expressly prohibits that convicts are hired to or placed at the disposal of private individuals, companies or associations. However, with reference to its 2012 General Survey on the fundamental Conventions concerning rights at work, the Committee recalls that work by prisoners for private enterprises can be compatible with the Convention where the necessary safeguards exist to ensure that the prisoners concerned offer themselves voluntarily, without being subjected to pressure or the menace of any penalty, by giving their formal, free and informed consent to work for private enterprises. In such a situation, work of prisoners for private parties would not be in violation of the Convention, since no compulsion is involved. Moreover, the Committee has considered that, in the prison context, the most reliable indicator of the voluntariness of labour is that the work is performed under conditions which approximate a free labour relationship, including wages, social security and occupational safety and health. The Committee therefore requests the Government to take the necessary measures to ensure that prisoners may only perform work for private enterprises with their formal and informed consent, and that such consent is free from the menace of any penalty and authenticated by the conditions of work approximating a free labour relationship. It requests the Government to provide information, in its next report, on the measures taken in this regard.

In relation to providing for penal sanctions in compliance with Article 25 of Convention 29 the Committee noted that, pursuant to section 13(a) of the Prevention and Combating of Trafficking in Persons Act, a person convicted of trafficking in persons is liable to a fine not exceeding 100 million South African Rand (ZAR) or imprisonment, including imprisonment for life. The Committee therefore observed that persons convicted of trafficking in persons may be punished only with a fine. In this regard, the Committee recalls that Article 25 of the Convention provides that the exaction of forced or compulsory labour shall be punishable as a penal offence, and that legislation providing for a fine or imprisonment cannot be considered sufficiently effective. The Committee requested the Government to indicate how this provision of the Act is applied in practice, providing in particular information on the specific penalties imposed on persons under section 13(a) of the Prevention and Combating of Trafficking in Persons Act.

The Committee again noted the Government’s statement that there have been no cases reported relating to sections 48(2), 48(3) and 93(2) of the Basic Conditions of Employment Act No. 75 of 1997, in terms of which a person who, for his or her own benefit, or for the benefit of someone else, causes, demands or imposes forced labour, commits an offence and may be sentenced to a fine or imprisonment for a period of up to three years.

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SWAZILAND

Legal framework

Section 12 of the People Trafficking and People Smuggling (Prohibition) Act, 2009, which became effective in 2010, prescribes penalties of up to 20 years’ imprisonment for the trafficking of adults. Section 13 of the act prescribes penalties of up to 25 years’ imprisonment for trafficking of children.

Forced labour and human trafficking in Swaziland

Swaziland is a source, destination, and transit country for men, women, and children subjected to sex trafficking and forced labor. Swazi girls, particularly orphans, are subjected to sex trafficking and domestic servitude, primarily in Swaziland and South Africa. Swazi chiefs may coerce children and adults— through threats and intimidation—to work for the king. Swazi boys and foreign children are forced to labor in commercial agriculture, including cattle herding, and market vending within the country. Traffickers reportedly force Mozambican women into prostitution in Swaziland, or transit Swaziland en route to South Africa. Mozambican boys migrate to Swaziland for work washing cars, herding livestock, and portering; some of these boys subsequently become victims of forced labor. Reports suggest labor brokers fraudulently recruit and charge excessive fees to Swazi nationals for work in South African mines—means often used to facilitate trafficking crimes. Swazi men in border communities are recruited for forced labor in South Africa’s timber industry. Traffickers utilize Swaziland as a transit country for transporting foreign victims from beyond the region to South Africa for forced labor.

Some Swazi women are forced into prostitution in South Africa and Mozambique after voluntarily migrating in search of work.

Law enforcement

The government has not drafted or enacted implementing regulations for the law or used it to successfully convict a trafficking offender. A 2011 trafficking case revealed inconsistencies between the anti-trafficking act and the Immigration Act of 1992, leading to the deportation of six victims. The government investigated nine suspected trafficking cases, and initiated one prosecution; however, it did not obtain any convictions during the reporting period. The government frequently confused crimes involving transnational movement with trafficking offenses.

101

In April, 2014 the High Court of Swaziland closed one prosecution, initiated in February 2013, in which it was unable to convict two suspected traffickers for allegedly coercing a Nigerian woman to sell goods under conditions indicative of forced labor; the accused were released, although one person was charged with assault. The government did not report any investigations, prosecutions, or convictions of government officials complicit in human trafficking offenses.

In 2014 the government conducted nine investigations, an increase from three the previous year, and initiated prosecution of an internal child sex trafficking case. Nonetheless, the government did not obtain a conviction during the reporting period. The government continued to assist victims with basic necessities such as food, clothing and shelter, toiletries, counseling, and medical care in collaboration with NGOs. It provided repatriation assistance to one Swazi national, and the police cooperated with South African counterparts in the investigation of transnational trafficking cases. In partnership with Mozambican and South African authorities, the government continued its collaborative work on cross-border issues, including human trafficking.

There were no reports the government detained, fined, or jailed victims for unlawful acts committed as a direct result of being subjected to trafficking. During the reporting period, the immigration department initiated drafting of proposed amendments to the immigration act to provide immunity from prosecution to victims and witnesses of trafficking, to conform that law to the provisions of the People Trafficking and People Smuggling (Prohibition) Act, and to create a renewable permit specific to trafficking victims allowing them to remain in Swaziland for up to two years.

The government concluded its establishment of a child labor unit within the Ministry of Labor and Social Security and specifically designated three investigators during the reporting period. The labor ministry conducted more than 3,000 labor inspections in 2014, which resulted in the identification of two alleged violations of child labor prohibitions, one in domestic service and the other in retail trade; however, these cases remained under investigation at the end of the reporting period.

The government did not report any progress on the initiated prosecution of a labor broker who was alleged to recruit workers through fraud and charge excessive fees, or on the proposed amendments to the Employment Act to include regulation of labor brokers from the previous reporting period.

Prevention and protection measures

102

The anti-trafficking taskforce and its secretariat continued to effectively guide antitrafficking efforts in 2014 and increased awareness-raising efforts, introducing a bi-monthly newspaper column and radio progrto educate the public on trafficking.

The government identified and sheltered one victim during the reporting period in a secure witness protection facility. The police reported other potential victims were likely identified during the reporting period, but could not confirm any information on this. The government provided victims with basic necessities such as food, clothing and shelter, toiletries, counseling, and medical care in collaboration with NGOs. The government utilized the equivalent of $700 from a victim assistance fund for these services. The government repatriated one Mozambican child during the reporting period. The government developed guidelines to be used by all front-line officers to assist in the proactive identification and treatment of victims; however, these guidelines were not distributed to all relevant officials during the reporting period. Although the government, in partnership with UNODC, continued its development of a national victim referral mechanism and standard operating procedures for the management of trafficking cases, it continued to lack systematic procedures for their referral to care.

The secretariat conducted a series of trainings for the police and labor inspectorate, including victim identification and care procedures, as well as training to improve communication and cooperation between officials. Additionally, two part-time instructors continued to provide anti-trafficking training at the police college for all in-service and pre-service police officers during the reporting period.

The Task Force for the Prevention of People Trafficking and People Smuggling and its secretariat, which coordinates the work of the taskforce, held regular meetings and continued to be instrumental in guiding the government’s anti-trafficking response. The secretariat conducted public awareness activities at the Swaziland international trade fair, targeting traditional leaders, students, young women, and parents with information on preventing child trafficking and how to report suspected cases. Additionally, the secretariat conducted sessions on human trafficking at schools with the assistance of teachers and police officers and, through a new border campaign, placed posters at the various land borders and Mbabane airport to raise trafficking awareness. Swazi officials also presented messages on television and radio to raise awareness on human trafficking. The government’s anti-trafficking hotline continued to receive tips on potential

103

cases; it received more than 100 calls and a total of seven potential trafficking tips during the reporting period.

Recommendations

Enact amendments to the 2010 anti-trafficking act to allow for permanent residency of foreign trafficking victims; complete and disseminate implementing regulations for the 2010 anti-trafficking act’s victim protection and prevention provisions; vigorously investigate and prosecute trafficking offenses, including domestic trafficking cases, and convict and punish trafficking offenders; begin regulating labor brokers and investigate allegations of fraudulent recruitment; ensure the activities of the taskforce, secretariat, and implementing departments are sufficiently funded, particularly to enable the provision of adequate accommodation and care to victims and implementation of the strategic framework; ensure victim identification is not tied to the successful prosecution of a trafficker; institutionalize training of officials, particularly police, prosecutors, and judges, on the 2010 anti- trafficking act and case investigation techniques; develop and implement formal procedures to proactively identify trafficking victims and train officials on such procedures; complete development of a formal system to refer victims to care; establish a unified system for collecting trafficking case data for use by all stakeholders; and conduct anti-trafficking public awareness campaigns, particularly in the rural areas.

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TANZANIA

Legal framework

The 2008 Anti-Trafficking in Persons Act outlaws all forms of trafficking and prescribes punishments of one to 10 years’ imprisonment or afine, or both. A provision allowing offenders to pay a fine in lieu of serving prison time is disproportionate to the gravity of the crime and inadequate as a potential deterrent.

Tanzania, according to its Decent Work Country programme, has a high employment to population ratio and thus a low unemployment rate. However, this is said to conceal the decent work deficits in Tanzania, particularly for rural areas. There are significant decent work deficits in terms of the lack of social protection, weak enforcement of labour rights and standards, lack of occupational safety and health, and weak organization of workers. More than ninety percent of the employed population is in the informal economy and almost 89 per cent of the population is engaged in vulnerable employment, with higher rates in rural areas (95 per cent). The agriculture sector employs almost 80 per cent of the labor force and yet contributes less than a quarter of GDP. At 90 per cent, the ratio of females engaged in agriculture work is even higher. In 2010, it was estimated that almost 37 per cent of people employed in Tanzania are still below the poverty line8 . This can be attributed to under- employment and low productivity, a common characteristic of the labour market in Tanzania, especially in the rural areas and informal sector, and among women and youth.

According to the 2006 ILFS, 27.5 percent of all children in the age group from 5 to 17 years were considered to be in child labour. Child labour in rural areas was much higher at 32.3 per cent as compared to 10.7 per cent in urban areas. Fewer girls (24 per cent) than boys (30.8 per cent) were engaged in child labour. Eighty five percent of boys and 74.8 per cent of girls (5-14 years old) are working in agriculture. Twenty seven per cent of children in rural areas were engaged in hazardous labour compared to 5.6 per cent in urban areas.

There is general concern within Tanzania that the free movement of labour, brought by the EAC Common Market Protocol, will lead to job losses for the nationals. The management of labour migration within the region is now a priority for Tanzania. Currently there is no credible data regarding the free movement of labour across the region.

Strengthening the framework for labour law compliance entails building a stronger bridge between international labour conventions and national law

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and practice. Despite the adoption of the new labour law regimes for Mainland Tanzania in 2004 and for Zanzibar in 2005, the Committee of Experts for the Application of Conventions and Recommendations has expressed concern regarding compliance with international labour standards. On one hand, after several years of experience in implementing the new laws, there is a growing recognition that some gaps exist in the new laws, as well as inconsistencies or conflicts between the laws applying in the Mainland and Zanzibar, or between the labour laws and other laws. On the other hand, there are many implementing regulations which are yet to be developed under the new laws, making compliance a difficult task.

Forms and manifestations of forced labour and human trafficking in Tanzania

Tanzania is considered a source, transit, and destination country for men, women, and children subjected to trafficking for forced labour and forced prostitution in the TIP 2105 Report. This reflects the concluding observations of the Committee on Economic, Social and Cultural Rights of 13 December 2012, as was noted by the ILO Committee of Experts on the Application of Conventions and Recommendations. 83

The TIP report states that the incidence of internal trafficking is higher than that of transnational trafficking and is usually facilitated by victims’ family members, friends, or intermediaries offering assistance with education or finding employment in urban areas. The report cites the manipulation by unscrupulous individuals of the traditional practice of child fostering—in which poor children are entrusted into the care of wealthier relatives or respected members of the community—to subject children to forced labor.

The exploitation of young girls in domestic servitude is cited in the report as a widespread problem in Tanzania, and is said to occur in the context of movement from rural to urban areas.

In addition, child sex trafficking, particularly along the Kenya-Tanzania border, occurs as well. Girls are primairly exploited for forced sexual services in this area, but also in other tourist areas in the country, while boys are subjected to forced labor, primarily on farms—including as farm laborers,

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E/C.12/TZA/CO/1-3, paragraph 17.

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cattle herders, and occasionally hunters—but also in mines and quarries, in the informal commercial sector, in factories, in the sex trade, and possibly on small fishing boats operating on the high seas.

Tanzanian children and adults are subjected to domestic servitude, other forms of forced labor, and sex trafficking—often by other Tanzanians—in other countries in Africa, the Middle East, Europe, and the United States. Media reports indicate Tanzanian children with physical disabilities are transported to Kenya for forced begging and Tanzanian girls are subjected to sex trafficking in China. Children from Burundi and Kenya, as well as adults from South Asia and Yemen—are subjected to forced labour in Tanzania’s agricultural, mining, and domestic service sectors and some are alsosubjected to sex trafficking.

Tanzania is also a transit country for citizens of neighboring countries being trafficked for forced labour in the form of into domestic service and prostitution in South Africa, Europe, and the Middle East. The report found that Nepalese and Indian women were subjected to forced labor and sex trafficking in a Tanzanian casino.

Domestic workers are often trapped in situations of forced labour; they are physically or legally restrained from leaving the employer’s home, by means of threats or of actual violence, or through tactics such as retention of identity documents or pay. Overwhelmingly affecting women and children, and often closely linked to trafficking and migration, this practice exists in a number of countries. Working largely in the sphere of private households, domestic workers “experience a degree of vulnerability that is unparalleled to that of other workers”. Domestic work per se is of course not forced labour. But it can degenerate into forced labour when debt bondage or trafficking is involved – or when the worker is physically restrained from leaving the employer’s home or has his or her identity papers withheld. In a variety of countries, the plight of women domestic workers in forced labour situations has grabbed headlines; this has particularly been the case regarding domestic workers employed in the Middle East. The worst situations involve violence, sometimes extending to rape and/or torture.

In Tanzania, the national domestic work study conducted in 2012-13 gives evidence of high incidence of unpaid domestic work and excessive in-kind payments, informal and strongly personalised employment arrangements, and child workers. While labour regulations set a minimum wage and other terms of employment, compliance is low. Based on the Domestic Workers Survey, domestic workers in Tanzania represent 5% of total population 15 – 64 years. Women make up to 75% and tend to be much younger than men. 78% of female domestic workers are aged 15-24 years old while only 52% of male

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domestic workers are in same age group. Thus, domestic workers are the ultimate beneficiaries of ILO-Sida assistance oriented towards building national capacities and facilitating sound legal, policy and institutional measures, which are designed to strengthen workers protection and improve working conditions in the domestic work sector.

Law enforcement

The Government of Tanzania allocated a budget to its anti-trafficking committee for the first time andadopted implementing regulations for the 2008 anti-trafficking law, which formally assign anti-trafficking responsibilities to specific ministries.

The government has also developed a national plan, that, if implemented, would constitute making significant efforts to bring itself into compliance with the minimum standards for the elimination of trafficking and it has committed to devoting sufficient resources to implement that plan. For a sixth year, the government failed to allocate funding to a victims’ assistance fund and relied heavily on NGOs to provide victim services.

The government failed to provide comprehensive law enforcement statistics during the reporting period. However, the government reported four investigations, five prosecutions, and one conviction during the reporting period; an increase compared to three investigations in the previous reporting period. Four prosecutions remained pending at the close of the reporting period; details of those cases are unknown. The government penalized one convicted trafficker with a fine of TZS 50 million ($28,900) and required payment of back wages to the 22 victims from Nepal and India subjected to forced labor and sex trafficking; this sentence was severely inadequate and not proportionate to the crime.

The government also rescued 22 foreign women subjected to forced labor and sex trafficking in a Dar es Salaam casino and provided them shelter and care, ensured their safe repatriation, and prosecuted and convicted their trafficker; however, the court sentenced the trafficker to a fine in lieu of prison time—a severely inadequate penalty.

During 2012, nine male victim of trafficking for forced labour were detected by the local authorities. Seven of them were Tanzanian and two Rwandan. The seven Tanzanian were repatriated from Ethiopia, were they were exploited in the gold mines in Moyale, and for construction works in Yemen84.

84 GLOTIP report 2014 UNODC

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The government did not collect comprehensive data on the number of victims identified. However, police identified at least 22 adult foreign victims of forced labor and forced prostitution during the reporting period; an increase from 11 victims identified in the previous reporting period. NGOs reported providing services to an additional 54 child victims of labor and sex trafficking.

The government did not operate any shelters for trafficking victims and relied on NGOs to provide shelter for victims, though the government provided psychosocial services to victims in shelters, regularly assessed the conditions of the shelters, and required that NGOs send monthly reports to the Department of Social Welfare on shelter operations. However, in one case, police rescued 22 foreign women forced to work as dancers and in prostitution in a local casino without pay. The government placed the women in a guest house, provided them with security and medical care, coordinated with an international organization for additional assistance, and worked with Indian and Nepalese authorities to coordinate their safe repatriation to their home countries.

The newly adopted implementation regulations for the 2008 antitrafficking law established a number of key protection measures, including guidelines for the identification and referral of trafficking victims to NGO services, allocation of funding for a victims’ assistance fund, and a law enforcement and victim identification database; however, none of these protection measures were fullyimplemented during the reporting period. New regulations for interviewing potential trafficking victims were only approved in January 2015; therefore the government was unable to ensure victims were not punished for crimes committed as a result of being subjected to trafficking during the reporting period. The 2008 anti- trafficking law provides foreign victims legal alternativesto their removal to countries where their safety or the safety of their families may be endangered; all 22 foreign victims identified during the reporting period requested repatriation to their home countries.

During most of the reporting period, the government lacked funding and the necessary bureaucratic regulations to adequately implement its anti-trafficking efforts. However, in March 2015, the government allocated a budget of TZS 80 million ($46,200) to its anti-trafficking committee for the first time and adopted implementing regulations for the 2008 anti-trafficking law, which formally assign anti-trafficking responsibilities to specific government

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ministries and make these activities eligible for funding from the national budget.

Additionally, in March 2015, the antitrafficking committee formally adopted a three-year national action plan.

Local officials in the semi-autonomous region of Zanzibar conducted a public awareness campaign across the island through brochures and radio announcements. Immigration officials on the mainland also distributed anti- trafficking brochures at public events in border regions.

Comments from ILO supervisory bodies

In an observation related to imposition of compulsory labor for purposes of economic in contravention of articles 1(1) and 2(1) of the Convention,85 the Committee reiterated its concern the institutionalized and systematic compulsion to work established in law at all levels, in the national Constitution, acts of Parliament and district by-laws, in contradiction with the Convention. The Committee referred again to the various legislative provisions 86 and urged the Government to ensure that the necessary measures to ensure that the draft Constitution was revised to remove the duty on persons to participate in lawful and productive work and to strive to attain the individual and group production targets required or set by law. The Committee also requested the Government to pursue its efforts to repeal or amend the legislative provisions which permit compulsory labour to be imposed by an administrative authority

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86 These include : (1) Article 25(1) of the Constitution, which provides that every person has the duty to participate in lawful and productive work and to strive to attain the individual and group production targets required or set by law; article 25(3)(d) of the Constitution, which provides that no work shall be considered as forced labour if such work forms part of: (i) compulsory national service in accordance with the law; or (ii) the national endeavour at the mobilization of human resources for the enhancement of society and the national economy and to ensure development and national productivity. (2)The Local Government (District Authorities) Act, 1982, the Penal Code, the Resettlement of Offenders Act, 1969, the Ward Development Committees Act, 1969, and the Local Government Finances Act, 1982, under which compulsory labour may be imposed, inter alia, by the administrative authority for purposes of economic development; and (3)Several by-laws adopted between 1988 and 1992 under section 148 of the Local Government (District Authorities) Act, 1982, entitled “self-help and community development”, “nation building” and “enforcement of human resources deployment”, which provide for an obligation to work.

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or which provide for an obligation to work for the purposes of “self help and community development”, “nation building” and “enforcement of human resources deployment”, to bring the legislation into conformity with the Convention and the indicated practice.

In addition, the CEACR noted in its Direct Request to the government 87 under articles 1(1), 2(1) and 25 of the Forced Labour Convention, the Government’s statement that the adoption of Anti Trafficking in Persons Act requires the establishment of institutions and the formulation of regulations for its effective implementation. It also noted that an Anti-Trafficking Committee has been established, with the overall responsibility of coordinating the activities of government departments and law enforcement organs responsible for matters relating to trafficking in persons, and that draft regulations have been developed for the approval of the Anti-Trafficking Committee and stakeholders, as has a National Anti-Trafficking Action Plan. It noted further that the Government stated that training on human trafficking was conducted for officers of command districts as well as criminal investigation officers responsible for human trafficking. In addition, with support from the ILO and the International Organization for Migration, a directory of service providers for victims of human trafficking has been developed, to provide information on available services.

The CEACR requested information on the application of the Anti-Trafficking in Persons Act (No. 6 of 2008), ans urged the Government to strengthen its efforts to prevent and combat trafficking in persons, and to take measures to ensure that victims of trafficking are provided with appropriate protection and services. The Committee also requested the Government to provide information on the application of sections 4 and 5 of the Anti-Trafficking in Persons Act in practice, particularly with regard to the number of investigations, prosecutions, convictions and the specific penalties imposed. Lastly, it requests the Government to provide copies of the regulations adopted pursuant to the Anti-Trafficking Act and the National Anti-Trafficking Action Plan once finalized.

The CEACR has also expressed concern about the lack of freedom of career military personnel to leave the service in violation of Articles 1(1) and 2(1) of the Convention 29 88 . The Committee previously noted that, pursuant to

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88 Ibid.

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section 35 of the National Defence Act, 1966, officers or other members of career military personnel may be released at any time for such reasons and on such conditions as may be prescribed by the Defence Forces Regulations. In this regard, the Government indicated that the reasons and conditions for resignation from active service, as provided for in the Regulations, were: retirement age; sickness; service completed; and release of a female service person on marriage. The Committee therefore observed that section 35 did not appear to allow career military servicemen to resign at their own request, other than for one of the specific reasons listed, and recalled that career military personnel who have voluntarily entered into an engagement should have the right to leave the service in peacetime within a reasonable period, either at specified intervals, or with previous notice.

The Committee noted the Government’s statement that, in practice, career members of the armed forces enjoy the right to quit the service at their own request and requested the Government to provide information on the application in practice of section 35 of the National Defence Act, 1966, and its relevant regulations including, in particular, the number of resignations accepted, or refused (if any), over a specified period, as well as the reasons for refusal. The Committee also requests the Government to provide information on any measures taken or envisaged to amend the Defence Forces Regulations, to align it with the indicated practice.

Recommendations

The TIP report recommends that government should : (a) Increase efforts to enforce the 2008 Anti-Trafficking in Persons Act by prosecuting trafficking offenses, convicting trafficking offenders, and applying stringent penalties—including jail time— upon conviction; (b) Implement the act’s victim protection and prevention provisions, including implementing policies and procedures for government officials to identify and interview potential trafficking victims—including adults—among vulnerable groups proactively and transfer them to local organizations providing care; (c) begin compiling trafficking-specific law enforcement and victim protection data at the national level; (d)contribute government resources to train judges and prosecutors to clarify the difference between human trafficking and human smuggling; (e) provide additional training to law enforcement authorities on the detection and methods of investigating human trafficking crimes; (f) continue to allocate a budget for the anti-trafficking committee and anti- trafficking secretariat to implement the national action plan to combat trafficking; and

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(g)implement the 2015-2017 national action plan.

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ZAMBIA

Legal framework

Zambia ratified ILO Convention No.29 of 1930 on Forced Labour in 1964. In 1965, Zambia ratified Convention No.105 on the Abolition of Forced Labour. Other Conventions ratified by Zambia that relate to forced labour and trafficking include the ILO Convention No.182 on Elimination of the Worst Forms of Child Labour.

Under the Constitution of 1991, Article 14 protects individuals against slavery and slavery-like practices, and states that no person shall be required to perform forced labour. However, forced labour is not defined in the Constitution, although Article 14 does state the exemptions made under C29.

Under the Penal Code the following are criminal offences: Section 261: a person who trades, accepts, receives or detains a person as a slave is guilty of a felony and is liable to imprisonment for 7 years; Section 263: a person who unlawfully compels any person into forced labour is guilty of a misdemeanour; Section 262: any person who habitually trades in slaves is guilty of a felony and is liable to imprisonment for 10 years. The penal code also refers to the ability of the government to use hard labour as a form of punishment to convicted felons. The Courts will “take into account the severity of the offence, its prevalence and whether the accused is a first offender or not. Hard labour will not be imposed on a person who is physically challenged”.

In the Prisons Act, reference is made to the use of prisoners’ labour for working in government institutions, such as parastatal organisations and public companies, but only under the supervision of a prison officer or public officer. Additionally, where a prisoner is hired out, they are eligible to be paid wages.

Zambian labour conditions are legislated under the Employment Act, Chapter 268 of the Law of Zambia. In relation to forced labour, the Employment Act states (Section 75): Any person who (a) induces or attempts to induce any person to engage himself for employment or engages or attempts to engage any person by means of any force, threat, intimidation, misrepresentation or false pretence; or (b) by force, in any way prevents or endeavours to prevent any person from hiring himself as an employee or from accepting work from any employer; shall be guilty of an offence.

The Employment of Young Persons and Children Act, 2004, closely follows the definition contained in the ILO Convention on the Worst Forms of Child

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Labour (No.182). The Act also states that “A child between 13 and 15 years may be engaged in light work which is not likely to harm that child’s health, or development; or which is not prejudicial to that child’s attendance at an institution of learning or participation in vocational orientation”. A child under 13 years of age cannot work under any circumstances. Under this legislation, the penalty for employing children in the said activities is a fine of not less than two hundred thousand penalty units, but not exceeding one million penalty units, or imprisonment for a term not less than five years but not more than twenty-five years, or to both.

The Anti-Human Trafficking Act (No. 11 of 2008). defines human trafficking to include the: ‘recruitment, transportation, harbouring, receiving or obtaining a person, within or across the territorial boundaries of Zambia, by means of threat, force, coercion, abduction, fraud or deception, false or illegal adoption of a child, the giving and receiving of payments or benefits to achieve the consent of a person for the purpose of their exploitation’. The Act goes further to state that ‘exploitation includes all forward of slavery or practices similar to slavery, sexual exploitation, servitude, forced labour, and child labour’ (amongst other things). Specifically, child labour (according to the Act) includes ‘trafficking of a child for the purpose of engaging the child in work away from home and from the care of the child’s family, in circumstances in which the child is exploited’. It should be noted that in the international definition of child trafficking (as referenced in the Protocol to Prevent, Suppress and Punish trafficking in persons) removes the need for the ‘means’ used by traffickers, including ‘threat, force, coercion, abduction, fraud or deception, false or illegal adoption of a child, the giving and receiving of payments or benefits to achieve the consent of a person’.

Zambia also adopted a National Plan of Action to Combat Human Trafficking in 2012. Its Minimum Standard Guidelines on Protection of Victims of Trafficking outline minimum requirements for victim care, to include establishment and upgrade of existing shelters. In addition, in a CEACR Observation published in 201489, the Committee noted the Government’s statement that it has made progress in establishing the National Committee on Human Trafficking, which comprises of 12 ministries, as well as NGOs. In addition, the Ministry of Community Development has established 12 district

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coalitions that carry out awareness raising campaigns concerning the dangers of human trafficking90.

The Decent Work Country Programme (DWCP) for Zambia, launched in December 2007 prioritizes, among others, promotion of decent non- exploitative employment with particular attention to youth, women and people living with disabilities; and supporting the elimination of child labour, starting with its worst forms. Clearly, work on forced labour and trafficking, and identifying consequent problems contributes to attainment of these priorities.

Forms and manifestations of forced labour and human trafficking in Zambia

Following the advent of Private Employment Agencies in the Zambian labour market (PEAs), concerns arose following reports from numerous workers to the Ministry of Labour and Social Security that their identity documents were withheld by these agencies (and in some instances in the mining sector agencies were retaining a significant proportion of wages of jobseekers as a fee. These are indicators of forced labour and led to the Ministry of Labour and Social Security (MLSS) approaching the ILO for assistance in determining whether forced labour existed in the country. The subsequent research culminated in an ILO report on forced labour in Zambia in 2008,91 and the legislative changes it prompted is a good practice example of the use of data collection to facilitate policy development. The research found that the main reasons given for people migrating or becoming vulnerable to trafficking were as follows: the search for better economic or employment opportunities or better living conditions; the lack of local economic opportunities; poverty; ignorance; the pursuit of education/studies; and joining family members who had already migrated abroad. For those migrating into Zambia, respondents cited the following as possible reasons: investment and job opportunities; trading; tourism; prevailing peace; relaxed laws; and escaping adverse economic situations in neighbouring countries.92

Given the history of urbanisation and migration, the HIV epidemic and an economic context characterised by a significant proportion of Zambians living in absolute poverty and a widening gap between socio-economic classes,

90 The Committee also noted that the Government is receiving support from the UN Joint Programme on Human Trafficking (consisting of the ILO, UNICEF and the International Organization for Migration) for the implementation of the National Plan of Action to Combat Human Trafficking. It further noted that the Ministry of Labour and Social Security hosted in November 2013, the ILO Conference on Forced Labour and Human Trafficking in Africa, which aim to assess current responses to trafficking and document good practices.

9191 Investigating forced labour and trafficking: Do they exist in Zambia?, Carron Fox, ILO Special Action Programme Against Forced Labour, 2008, page 5. 92

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both children’s domestic work and the mobility of children between households, often driven by aspirations of education, poverty and stress and classically from rural to urban areas, have a strong degree of normality93.

A study commissioned by the ILO/IPEC and carried out by RuralNet Associates in Zambia in 2007 94 into child trafficking in five provinces in Zambia, identified what ‘internal trafficking’ of children based on ‘a cultural practice of looking after children from the extended family’ which makes ‘it easier for those wishing to exploit children for their gain’. The majority of victims were ‘female, orphans and teenagers’.

Across these types of communities, the movement of children into domestic work emerged as follows:

 Rural area or ‘the village’: The main movement of children into domestic work is from rural areas to low, middle or high income urban areas. None of the children from the village fitted into the category of ‘live-in domestic worker’. However there are orphans who undertake a considerable work load, particularly if they are also not at school. These orphans are in turn more likely to be identified as the children who should be sent to work in town, particularly if they are girls. The other common option for girls is early marriage- indeed three out of the four girls interviewed in the village, who had worked as domestic workers were married - all were 18 years or under. Boys tend to be more engaged as casual labour on the farms and are more likely to attend school than girls. Another pattern in the village is that following the death of a parent, or indeed both parents, the children (sometimes with the surviving parent) move to urban areas in order to survive. Children often have to work to support their surviving parent or their relative’s household.

Teenage children also move from the village into provincial towns, both urban and peri-urban areas. It was apparent in the rural area that there were few teenagers around. Children’s tasks in the rural area were slightly different to urban areas due to the presence of farming (arable and livestock), physical maintenance of dwellings (thatching, building) and having to fetch fuel (firewood) and water. Boys are often engaged in daily labour or piecework as it was referred to by participants. Once children move into domestic work outside their province, contact with their home village is extremely limited and in some cases non-existent. One girl who had come from Central Province to work in Chelstone had had no contact

93 From “Sweeping the bedroom report” on child domestic work in Zambia.

94 “Sweeping the bedroom”, 2007, p viii.

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with her family for 11 months. Some children return to the village for short visits and some return permanently, often because of bad experiences and/or because they are pregnant. Returning children relay mixed experiences about the time they spent away from home in receiving households.

 Peri-urban, provincial, low income and high density area: Few households in the low-income peri-urban area, had children living in as domestic workers. However, it was more common for children of kin, often from the village and usually girls, to do domestic work in exchange for shelter, food and sometimes educational support. It was common for these children and the children of the household to look for piecework (particularly washing clothes, sweeping) in the compound and further afield in middle income neighbourhoods. Some children were also sent to live in as domestic workers in such neighbourhoods or undertook domestic work on a daily basis. Girls were more likely to do domestic work and boys to do other forms of piecework, for example, making blocks for building, carrying loads for builders or carrying goods for people in the market.

 Urban, low income area in the capital city: Within this area there are pockets of middle income households and some of these do have children living in as domestic workers. Children and again especially girls are moving from this area and into domestic work in the surrounding higher income areas. Very often this type of employment is not with kin and requires them living in their employer’s household. Most of these child domestic workers are maintain contact with their households of origin and with their other networks, such as church, or kin households, at weekends.

 Urban, middle income urban area in the capital city: Children are notably less visible in this area. The disparity between children is greatest here, as the more privileged upbringing of middleclass children is supported in part by underprivileged children who work in their households. Some of these children, mostly girls, are living in as domestic workers recruited from surrounding low income areas or from rural areas and some come to work on a daily basis from nearby areas. Due to the housing structures, bigger plots with gardens and sometimes servant quarters, it is in this area where boys are employed in and around the household more. There are also children’s shelters and community schools located in the area which are partly supported by the local middle class residents. The children who are living in as domestic workers are less in touch with their households of origin than those in low income

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areas, particularly if they have come from the village and/or if their parents have died.

Sending children from poor families into domestic work was done for three main reasons linked to poverty: it could provide opportunities or a better life for the child; it would lessen the financial burden on the family; and the child could bring in income or goods as a result of working. As explained in the Dumiso concept mapping, ‘the family has a heavy burden with orphans- they send one away to lessen the burden, to make a smaller number’. It was evident in some of the individual interviews with child domestic workers that their income was sometimes the only regular income in their household of origin especially when the household was headed by grandparents or widows and if they maintained close and frequent contact with the household. Child domestic workers from such vulnerable households reported giving around three-quarters of their pay to their household of origin if they got paid on a regular basis.

The circumstances of child live-in domestic workers that have been highlighted in this research are often in line with the above definition of human trafficking. The overlap between child domestic work and human trafficking is both striking and clear. The findings of this research demonstrate that the practice of children being engaged in exploitative domestic work, an often being moved from their ‘home community’ for this purpose is relatively widespread in Zambia. Specifically, this ‘employment’ often involves both intention to exploit and actual exploitation and can be extremely harmful.

Poverty and factors associated with economic deprivation were considered important determinants in triggering the movement of children into domestic work. Some of these factors included lack of food and access to education. Some participants referred to the family’s financial survival where the child domestic workers were seen to be the primary or only family bread winners. Other factors impacting on poverty and the associated risk of child labour included unemployment and lack of employment opportunity in the home town.

Cultural norms on acceptability of child labour were also believed to inform social behaviour of recruiters, parents and children. For example, participants mentioned the belief that trafficking is always perpetrated by strangers (not acquaintances). Furthermore, participants talked of the belief that sex with children can cure serious illnesses, and that this may be a factor influencing trafficking in children.

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Individual risk factors related to trafficking included sex (i.e. females are more at risk), young age. The powerlessness and naiveté of children were seen as factors aggravating children’s risk of trafficking and exploitation. Having other limitations, such as hearing impairments, also was seen as putting children at increased risk.

Family risk factors included parental neglect, mistreatment and violence, orphaned, lack of sponsorship, divorce of parents and problems associated with drinking by parents.

The children’s discontentment with their situation and their hopes and expectations for the future were also considered to play an important part in their decision to migrate. Participants considered that peer-influence can help foster this hopes and dreams, and therefore also influence children’s economic migration which may result in trafficking.

Migrants working in Zambia were predominantly found in, domestic work as well as agriculture, mining and other labour intensive jobs. Malawians were mainly working as agricultural labourers and West Africans as gemstone miners. The sectors in which trafficking plays a role were thought to include prostitution, agriculture, construction and retail. The high levels of exploitation and abuse of domestic workers by employers included “low pay, lack of rest, inadequate food (for live-in maids), refusal to use household toilet facilities, and sexual harassment”, as well having their National Registration Cards withheld as a form of security. Also, in some case records indicated rampant exploitation of children; some employers engaged children as young as 13 years from the rural areas and surrounding high density townships of the Chipata district to work as their domestic servants/ maids/gardeners and hawkers. These children were usually subjected to non-payment of wages, psychological and physical abuse by the employers. “This practice is not only perpetuated by the employers but also by some of the vulnerable households who send their children to perform these duties so as to supplement the family incomes”. Domestic workers are excluded from the minimum wage, and in some cases the employer believed that giving goods and service in-kind, rather than paying a cash wage, was payment enough (in one case cited the employer claimed she had treated the domestic worker like her child demanded a reimbursement for the ‘favours’ that she did for the employee).

The study found no examples of forced labour as defined in Convention 29.95 It found a number of cases of men and boys being trafficked for construction

95 Ibid, at page 11.

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work, agriculture, domestic work and retail. Labour migration is very widespread, both internal and cross-border. Migrant workers, being away from their home and desperate to find a job, are particularly vulnerable to exploitation. But there is very little official information available about the situation of Zambian workers abroad, and returned migrants are often unwilling to speak truthfully about their experiences abroad. Further research is required in this area. should be undertaken in the context of broader efforts to provide all workers with the decent work they deserve.

Many factors were said to lead to a heightened vulnerability to trafficking. Within Zambia, the following were found by ILO/IPEC research on children96: • Poverty is often cited as the main cause of trafficking, usually linked to other factors. It can push children to accept offers of work with the intention of being able to either contribute money to their families, or simply to provide for themselves. • Orphanhood is widespread in Zambia due to the HIV/AIDS pandemic. The high rates of orphanhood lead children to becoming vulnerable due to a lack of support networks to protect them. • Cultural factors contribute especially to internal trafficking. It is accepted that children are sent to live with extended family members or friends to work as domestic workers, often with the promise of an education. Cultural acceptance of the early marriage of girls can result in trafficking for forced marriage. • Non-school going children and orphans can accept offers of either earning money to enable them to go to school, or false promises of being sent to school. • Due to the high rates of poverty, HIV/AIDS and adult unemployment, children may become victims of neglect and abuse in the family, resulting in them being vulnerable to accepting offers of outside help.

The ILO-IPEC study found that internal trafficking of children was rife in Zambia. 97 Children were trafficked for a multitude of activities, including domestic work, agricultural work, street hawking and prostitution.

The USDS TIP report 2015 confirms that currently, “trafficking occurs within the country’s borders and involves women and children from rural areas exploited in cities in domestic servitude or other types of forced labor in agriculture, textile, mining, construction, small businesses such as bakeries, and forced begging. Zambian children may be forced by jerabo gangs

96 ILO & RuralNet Associates : Working Paper on the Nature and Extent of Child Trafficking in Zambia ( Lusaka : 2007) cited in footnote 60 of Carron Fox study. 97 Ibid.

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engaged in illegal mining to load stolen copper ore onto trucks in Copperbelt Province. While orphans and street children are most vulnerable, children of affluent village families are also at risk of trafficking because sending children to the city for work is perceived to confer status. Zambian boys and girls are exploited in sex trafficking by truck drivers in towns along the Zimbabwean and Tanzanian borders and by miners in the mining town of Solwezi. Zambian boys are subjected to sex trafficking in Zimbabwe and women and girls are subjected to sex trafficking in South Africa. Domestically, extended families and trusted family acquaintances continued to facilitate trafficking.98”

The USDS TIP report lists Zambia as a tier 2 country for HT in the latest TIP report. It is considered a country of origin and transit for women and children. Since it shares a border with seven countries it is a target for traffickers seeking to move people easily through and between neighbouring countries. There is evidence that Zambian women and children are trafficked for sexual exploitation from Zambia to Malawi and then onto Europe. The traffickers appear to be predominantly Nigerian, based in Lilongwe, but pass through Zambia on their way to Malawi.

Zambia is also a destination country for labour trafficking, as illustrated by the following two newspaper reports. In the first, a Zambian national was arrested taking six children and two elderly Malawians into Zambia. The man told the authorities that “he was taking them to his farm where they would work as peasants”. The man was fined Malawian Kwacha 50,000 (US$400) but remained in prison as he was charged with attempted kidnapping of the same children. In the second report another Zambian national was arrested trying to take 15 children, boys aged between nine and 15 years, into Zambia. The man was fined Malawian Kwacha 24,000 (US$200).

As a transit country, Zambia is implicated in the onward trafficking of refugees and other vulnerable persons from Angola, the Great Lakes region and the Democratic Republic of Congo to South Africa. Furthermore, there is evidence to suggest that children are trafficked on from South Africa, or Botswana, to third countries, such as USA, Israel and Russia. In 2004 a Congolese woman was stopped at a national border of Zambia bringing in 14 Congolese girls who were being taken to South Africa with the promises of jobs. The International Organisation for Migration, along with non-governmental organisations, provided support to the children and the principal trafficker was arrested. However, she was later released after being fined ZMK 2 million. In March 2008 the media reported on a case of 42 Congolese nationals who were thought to be victims of traffickers, or even traffickers themselves. They were all intercepted going to South Africa by the Immigration Department in

98 2015 TIP report.

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Lusaka. Twenty-six of the offenders were found in Lusaka and repatriated back to the Congo, while sixteen were still held in detention in Kabwe (Central Province). “We could not detain the Congolese nationals who were arrested in Lusaka because most of them were women with children as young as six month olds,“ Ms Mbangweta said [the immigration officer]. From the interviews we have conducted so far, they look like they were being trafficked to South Africa. When people are trafficked, they do not know where they are going and where they are,” she said.

Nationals from South and East Asia are exploited in forced labor in textile factories, bakeries, and Chinese-owned mines. Chinese traffickers brought in Chinese women and underage girls for sexual exploitation in brothels and massage parlors in Lusaka; traffickers used front companies posing as travel agencies to lure Chinese victims and coordinated with Zambian facilitators and middlemen. The transnational labor trafficking of Southeast Asians through Zambia for forced labor in construction in South Africa continued and was linked to criminal groups based there.99

Law enforcement

The government maintained anti-trafficking law enforcement efforts, initiating four prosecutions in 2014, compared to three prosecutions in 2013. The anti- trafficking act of 2008 criminalizes some forms of trafficking; although contrary to international law, it requires the use of threat, force, intimidation, or other forms of coercion for a child to be considered a sex trafficking victim. The act prescribes penalties ranging from 20 years’ to life imprisonment, which are sufficiently stringent and commensurate with penalties prescribed for other serious crimes, such as rape. The government investigated five potential trafficking cases, initiated prosecution of four of these cases, and convicted one defendant of trafficking. The government convicted a Zambian woman for exploiting seven Congolese children in forced labor; sentencing remained pending in the High Court. A majority of the trafficking cases investigated involved cross-border trafficking of women and children for labor and sexual exploitation; the government failed to investigate internal cases involving Zambian children in prostitution and domestic servitude or forced labor in the Zambian mining and agricultural sectors. In one case pending from the previous reporting period, the government did not obtain a conviction of a suspected recruiter and trafficker for their alleged enslavement of a Zambian girl in domestic servitude.

99 US TIP report 2014.

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Generally, criminal investigations into forced child labor offenses or cases in which victims were not moved across borders were rare; the Ministry of Labor and Social Security (MLSS) Child Labor Unit cited mediation with parents as the usual process for handling child labor cases.

The government remained limited in its capacity to adequately monitor the mining and agricultural sectors and failed to criminally investigate or prosecute companies responsible for labor trafficking in these sectors; allegations of large or foreign companies and foreign governments exerting influence over officials remained a concern. The government did not report any investigations, prosecutions, or convictions of government officials complicit in human trafficking offenses.

Training covering the 2008 anti-trafficking act was included in all law enforcement courses at the police academy, as were investigation techniques and procedures to identify and protect victims. The government continued use of its database to track trafficking case data, and in 2014 it expanded the piloted program to include additional police stations. The government increased its partnerships in the region by initiating routine coordination of anti-trafficking efforts with Zimbabwe and South Africa. The government, in cooperation with international partners, developed and launched a series of protection tools to assist officials and service providers in identification of trafficking victims among vulnerable populations, such as migrants and unaccompanied minors.

Comments from ILO Supervisory Bodies

Observation (CEACR) - adopted 2013, published 103rd ILC session (2014) Forced Labour Convention, 1930 (No. 29) - Zambia (Ratification: 1964)

Articles 1(1), 2(1) and 25 of the Convention. Trafficking in persons. 1. Law enforcement and penalties. The Committee previously noted the information in the report of the Special Rapporteur on violence against women, its causes and consequences, of 2 May 2011, that trafficking occurs within Zambia’s borders where women and children from rural areas are exploited in cities in involuntary domestic servitude or other types of forced labour (A/HRC/17/26/Add.4, paragraph 27). It also noted that the Committee on the Elimination of Discrimination against Women, in its concluding observations of 19 September 2011, expressed concern that Zambia remains a country of origin, destination and transit for the trafficking of persons (CEDAW/C/ZMB/CO/5-6, paragraph 23). The Committee requested the Government to take measures in this regard, and to provide information on the application of the Anti-Human Trafficking Act (2008) in practice.

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The Committee notes the Government’s statement that it acknowledges that trafficking is a problem in the country, and that due to current data collection impediments, it is unable to provide comprehensive statistics on trafficking. However, the Government indicates that, according to the anti-trafficking secretariat, two cases have been successfully prosecuted, and the convicted persons are awaiting sentencing. Additionally, the Government indicates there are nine cases pending. The Committee also notes the Government’s indication that the ILO and the Ministry of Labour and Social Security have, in conjunction with the Immigration Department and the Ministry of Home Affairs, conducted capacity building workshops relating to the investigation and prosecution of suspected cases of trafficking. The Government indicates that labour officers carry out joint inspections with the Ministry of Home Affairs in this regard. The Committee requests the Government to pursue its efforts to ensure that thorough investigations and effective prosecutions are carried out against those who commit the offence of trafficking in persons, including internal trafficking. It requests the Government to continue to provide information on measures taken in this regard. The Committee further requests the Government to continue to provide information on the application of the Anti-Human Trafficking Act in practice, particularly the number of investigations, prosecutions, convictions and the specific penalties applied.

3. Protection and assistance to victims. The Committee previously noted the rising number of identified trafficking victims, from eight victims in 2009 to 53 victims in 2010. It requested information on measures taken to assist such victims. The Committee notes the information in the Government’s report that victims of the trafficking cases that are pending include persons from South Asia being trafficked through Zambia for labour exploitation in South Africa, as well as victims from Somalia trafficked for unknown reasons. The Government states that measures to assist victims of trafficking include free legal services and their exemption from criminal investigations if a crime is committed during the course of their exploitation. The Government also indicates that the anti- trafficking legislation prohibits the summary deportation of victims of trafficking, and allows victims to apply for a non-renewable permit to remain in the country for up to 60 days. Moreover, it indicates that it is developing a national referral mechanism. The Committee requests the Government to strengthen its efforts to provide protection and assistance to victims of trafficking, and to provide information on the measures taken in this regard in its next report, particularly progress with regard to the development of a national referral mechanism. It also requests the Government to provide information on the number of persons benefiting

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from appropriate services, including the number of victims of trafficking receiving free legal assistance.

Direct Request (CEACR) - adopted 2013, published 103rd ILC session (2014)

Articles 1(1) and 2(1) of the Convention. National service obligations. The Committee previously noted that certain provisions of the National Service Act 1971 permit compulsory national service of a non-military character. Section 3 of the National Service Act establishes the Zambia National Service, with the function of, inter alia, training citizens to serve the Republic and the employment of Service members in tasks of national importance. Section 7 provides that citizens between 18 and 35 shall be liable to have their name in the National Service register and may be called upon to serve. The Government had repeatedly indicated that, for many years, there had been no compulsion in practice to serve in the National Service or to enlist for service by compulsion. In this regard, the Committee noted the Government’s indication that measures would be taken to repeal the National Service Act. The Committee notes the Government’s statement that the repeal of the National Service Act has not yet been passed by Parliament. The Committee once again recalls that Article 2(2)(a) of the Convention only permits compulsory work exacted by virtue of compulsory military service laws if this work is of a purely military character. Therefore, while noting the Government’s indication that the compulsory national service provisions are not used in practice, the Committee reiterates its hope that the National Service Act, 1971, will soon be repealed to achieve legislative conformity with the Convention and the indicated practice. Observation (CEACR) - adopted 2013, published 103rd ILC session (2014)

Recommendations

Forced labour does not appear to be a problem and has been rooted out through effective law enforcement but trafficking still presents a challenge given the situation of Zambia in the region. Although laws, regulations and global declarations against child labour have grown in number and received international recognition, there can be little doubt that, due to multiple contextual and structural factors, children—especially girls—are continually entering domestic work. Moreover, as suggested in this report, it is possible, if not probable, that as more women (mothers and wives) enter the labour market, as middle-income households grow in number, and AIDS continues to take its toll, there may be an even greater demand for inexpensive, malleable domestic care-takers. Measures to support the financial and familial needs of children who are most vulnerable to these practices must be well-considered and well-implemented. While instant eradication is not a reasonable option,

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important advances can be made in protection and response mechanisms, which are on the pathway to eradication.

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ZIMBABWE

Legal framework

The government passed the Trafficking in Persons Act in 2014.100 It provides for the prohibition, prevention and prosecution of crimes related to trafficking of persons.

Forms of forced labour and human trafficking in Zimbabwe

According to the TIP 2015 report Zimbabwe is a source, transit, and destination country for men, women, and children subjected to sex trafficking and forced labor 101 . Women and girls from Zimbabwean towns bordering South Africa, Mozambique, and Zambia are subjected to forced labor, including domestic servitude, and sex trafficking in brothels catering to long- distance truck drivers on both sides of the borders. Zimbabwean men, women, and children are subjected to forced labor in agriculture and domestic service in the country’s rural areas, as well as domestic servitude and sex trafficking in cities and towns. Family members recruit children and other relatives from rural areas for work in cities where they are subjected to domestic servitude or other forms of forced labor; some children, particularly orphans, are lured with promises of education or adoption.

Children are forced to labor in the agricultural and mining sectors or to carry out illegal activities, including drug smuggling. Additionally, the practice of ngozi, giving a family member to another family to avenge the spirits of a murdered relative, creates a vulnerability to trafficking.

Although many Zimbabwean women and some children willingly migrate to South Africa, they are vulernable to exploitation by the taxi drivers who transport them aas well as others and are sometimes transferred to criminal gangs that subject them to abuse, including forced prostitution in the cities of Musina, Pretoria, Johannesburg and Durban.

Zimbabwean migrants desparate for work are lured into exploitative labor situations in agriculture, construction, information technology, and hospitality largely in neighboring countries; some subsequently become victims of forced labor, and some women become victims of forced prostitution. Many Zimbabwean migrants to South Africa subjected to forced labour in conditions in which they work for months, often seasonally, on farms, at construction sites, in factories, or in mines, without pay.

Men, women, and children predominantly from East Africa are transported through Zimbabwe en route to South Africa; some of these migrants are trafficking victims. Refugees from Somalia and the Democratic Republic of the

100 https://www.newsday.co.zw/2014/03/14/iom-applauds-anti-trafficking-law-enactment/.

101 http://www.state.gov/j/tip/rls/tiprpt/countries/2015/243566.htm

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Congo reportedly travel from Zimbabwe’s Tongogara Refugee Camp to Harare, where they are exploited and, in some cases, forced into prostitution. Chinese nationals are reportedly forced to labor in restaurants in Zimbabwe. Chinese construction and mining companies reportedly employ practices indicative of forced labor, including verbal, physical, and sexual abuse, and various other means of coercion. Mozambican children are subjected to forced labor, including in street vending, in Zimbabwe.

Law enforcement

The Trafficking in Persons Act was passed in June 2014 but does not comply with the international definition of trafficking in persons under the Palermo Protocol. Instead, according to the TIP 2015 report, the act serves in effect to prohibit transportation-based crimes. In January 2015, it established an inter- ministerial antitrafficking committee, although it did not report on any action taken by the committee during the year.

The government did not report any anti-trafficking law enforcement efforts during the reporting period. Official complicity in trafficking crimes remained a concern. The government made minimal efforts to protect trafficking victims, instead relying on NGOs to identify and assist victims.

Law enforcement authorities did not employ procedures—such as formal written guidelines—to proactively identify victims or refer them to protection services. The Anti-Trafficking Act required the government to establish centers in each of Zimbabwe’s 10 provinces, providing counselling, rehabilitation, and reintegration services for “trafficking victims,” it remained unclear if child and adult victims of forced labor and sex trafficking would benefit from protections under the law, given its inaccurate definition of trafficking crimes. Moreover, the centres are yet to be established by executive decree.

The government may have detained and deported potential trafficking victims due to a lack of proactive victim identification procedures. The government did not provide foreign trafficking victims with temporary or permanent resident status or any other legal alternatives to their removal to countries where they might face retribution or hardship.

Prevention and protection

In November 2014, officials participated in a national action planning workshop, but this does not seem to have resulted in development of a national action plan to address trafficking in persons. In January 2015, the government established an inter-ministerial anti-trafficking committee, under the leadership of the Ministry of Home Affairs. However the committee appears not to have met or undertaken anti-trafficking activities since its establishment.

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Comments from ILO Supervisory Bodies

The CEACR made a Direct Request to Zimbabwe in 2013 102 relating to compliance with articles 1(1) and 25 of Convention 29 requesting information on progress with adoption of the anti-trafficking law ( which was subseqently passed). It urged the Government to take measures to ensure that all victims of trafficking are adequately assisted and protected, and to provide information on the number of persons benefiting from these services. The CEACR also expressed concerns regarding certain provisions of the Vagrancy Act (Cap. 10:25), under which any person suspected of being a vagrant, defined as any person who has no settled or fixed place of abode or means of support and who wanders from place to place, or any person who maintains himself by begging or in some other dishonest or disreputable manner (section 2(a) and (b)), is subject to being arrested by a police officer, taken before a magistrate and subsequently detained in a re-establishment centre, where such persons may be maintained and afforded the occupation, instruction or training requisite to fit them for entry into or return to employment (section 7(1)). The CEACR observed that the provisions of the Vagrancy Act are worded in such general terms as to lend themselves to application as a means of compulsion to work. In this regard, the Government indicated that it was engaged in consultations with relevant ministers concerning amending the Vagrancy Act. The CEACR also requested information regarding the freedom of career military personnel to leave the service, which request it had made repeatedly.

Article 2(2)(a). Services exacted from a person in place of service as a member of a disciplined force. The Committee previously referred to section 14(2)(c) of the Constitution of Zimbabwe and to section 4A(2)(c) of the Labour Act, as amended in 2002, under which the term “forced labour” does not include any labour required of a member of a disciplined force in pursuance of his duties as such or any labour required of any person by virtue of a written law in place of service as a member of such force. In this connection, the Committee recalled thatArticle 2(2)(a) of the Convention exempts from its provisions only work or service exacted in virtue of compulsory military service laws. The Committee notes the Government’s statement that the new Constitution abolished forced labour on all persons without distinction. In this regard, the Committee notes that article 55 of the Constitution of 2013 states that no person may be made to perform forced or compulsory labour, and that this provision does not contain any

102 Direct Request (CEACR) - adopted 2013, published 103rd ILC session (2014) Forced Labour Convention, 1930 (No. 29) - Zimbabwe (Ratification: 1998)

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exceptions. Taking due note of the Government’s statement that the Labour Act will be amended accordingly, the Committee requests the Government to provide a copy of the amended Labour Act, once adopted.

Article 2(2)(c). Prison labour exacted for the benefit of private individuals. In its earlier comments, the Committee noted that section 71 of the Prisons (General) Regulations, 1996, prohibits prisoners to be employed for the private benefit of any person, except on the order of the Commissioner. It also noted the Government’s indication that no prisoners had been used for private benefit in contravention of the Convention, and that discussions were ongoing with a view to establishing a rehabilitation framework for prisoners which respected ILO principles. The Committee noted the Government’s statement that section 71 of the Prisons (General) Regulations will be amended in the process of aligning laws with the new Constitution. Recalling that Article 2(2)(c) of the Convention expressly prohibits prisoners from being hired to or placed at the disposal of private individuals, companies or associations, the Committee requests the Government to take measures to ensure that section 71 of the Prisons (General) Regulations is amended in this respect. It requested the Government to provide, in its next report, information on the progress made in this regard.

Article 2(2)(e). Minor communal services. The Committee earlier noted the Government’s repeated statement in its reports that participation in communal work programmes is entirely voluntary. The Government subsequently indicated that the work performed in communal work programmes is normally in the interest of the community concerned, and relates to cultivation of land in times of food scarcity for vulnerable members of the community or labour for developmental projects, such as the construction of tanks, clinics and schools and environmental reclamation activities. The Committee requested the Government to provide further information on the communal work programme in practice. The Committee noted the Government’s statement that this communal work consists of minor activities that members of the community voluntarily render to the community, underpinned by the communal values which form part of the culture of the people concerned.

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Conclusion : What needs to be done?

It is clear from the country reports that SADC member states face numerous challenges in meeting their obligations under Convention No.29. Progress varies between countries like Zambia that have made significant interventions in enhancing law and policy frameworks to address forced labour and human trafficking, resulting in visible progress, to nations such as Swaziland where the ILO supervisory bodies have repeatedly urged progress. Thus compliance with the obligations under Convention No. 29 is still lacking and many countries fall short, not because of the complex contractual arrangements that are emerging in the global economy as forms of labour change, but due to the lack of legal frameworks and institutional mechanisms to underpin them. This, whilst most countries have draft laws regulating forced labour and human trafficking, and many have passed such laws, enactment and enforcement of legislation remains a key challenge.

Whilst there is significant cooperation and coordination in the SADC region, much still needs to be done particularly to address the vulnerabilities created by cross-border migration including its resultant discrimination and stigmatization. The complete eradication of forced labour and human trafficking for forced labour requires intensified and coordinated efforts, involving social partners and all stakeholders, and increased accountability of business for adverse human rights impact. It means that categorically, those who accept these obligations have to demonstrate the political will, followed by dedication of fully-fledged institutions and resources, to fulfill these obligations. Trade unions and employer organisations need to contribute their respective organizational, strategic and financial resources to the struggle to eliminate forced labour and combat human trafficking in the region. The increasing trend of the trafficking in women and children, as well as men, for the purpose of forced labour stands out as the most urgent problem of the twenty-first century in relation to Convention No. 29. It has reached the level of being one of the major activities of transnational organized crime. The

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nature of this scourge requires the cooperation of all States and stakeholders as part of urgent, global solution as all the regions of the world are affected.

The significance of the new international labour standards in this context cannot be undermined. In this regard, “the power of normative pressure against those who still use or condone the use of forced labour is essential. These new standards ensure that there can be no excuse for non-compliance, and given the comprehensive framework that now exists, national legislation needs to be strengthened to intensify the initiatives to combat forced labour and impose strict penalties against those who profit from it.” (Profits and Poverty, page iii)

Law enforcement is critical to ensure success with meeting the challenges. This requires resources, capacity, training and building of institutions to underpin implementation of laws. A crucial basis of the law enforcement machinery is an effective judicial system, which is a key element in the efficient prosecution of traffickers and the strict application of penal sanctions, as required by the Convention.

Prevention and protection measures are the most important, and it has been noted by the CEACR 103 that the “effective protection of the victims of trafficking can contribute to the enforcement of the law and the punishment of perpetrators”.

Strengthening the capacity of labour inspectorates is a key requirement to unravel the often hidden forms of exploitation encompassed with the practices and institutions of forced labour and human trafficking.

Urgent preventive and protective action must be taken to put an end to these abuses, and prevention is a key strategy. Trade unions secure workers' rights

103 2007 General Survey page 192…Check the page reference

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and ensure decent working conditions, so they are key partners in combating forced labour and trafficking

Bilateral and multilateral cooperation is key to combating and eliminating trafficking, as it is a crime that frequently crosses borders and jurisdictions (UN Secretary-General 2008: para. 15)

In the SADC region, the lack of data on the scope and prevalence of forced labour and human trafficking is a key challenge limiting the development of national action plans and other key policies to address the issue.

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