Human trafficking has been defined as 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.^[1]

Human trafficking is squarely located within the larger context of workers’ rights, immigrant rights, and human rights.^[2] According to the UNICEF Innocenti Insight, Kenya is a primary source of origin, transit, and destination for human trafficking.^[3] This may be indicative of a general lack of concern by the government to deal with the atrocity. This atrocity does not take place in social and political isolation. The government is tasked with the responsibility to ensure that this atrocity is nipped in the bud. When the social and political circumstances allow for and support the forceful theft of human labour, there is a need for deconstruction: a deconstruction of the laws that create this environment or an improvement of the same. In Kenya, there exist rampant and unfortunately severely overlooked situations; where minors from poverty stricken families are taken across county and country borders to work as domestic workers and do other exploitative odd jobs for little pay.^[4]

Furthermore, there have also been cases where Kenyan citizens have been abducted and taken to foreign countries^[5] and have faced torture in foreign countries. In the case of Beatrice Akomo Ongito v Republic^[6] a Kenyan defendant was charged with transnational commercial sexual exploitation. The complainant was said to have been transported to Tanzania and locked in a deserted house where she was beaten and sexually abused.^[7] Other reported cases include cases of trafficking for sexual exploitation.^[8] These cases mostly involve adults taking advantage of minors. An example of this is F.M.N v Republic.^[9] In this case, the defendant was charged with trafficking for sexual exploitation contrary to section 18(a) of the Sexual Offences Act.^[10]

Though Kenya is said to have shown marked improvement in its anti-trafficking efforts, there has been no indication by way of evidence of such effort. In fact, cases dealing with this heinous atrocity have shown a lack of coordination and oversight. This is arguably promotive of a conducive environment for trafficking.

The main law that currently deals with human trafficking is the Counter Trafficking in Persons Act that came into force in 2012. Prior to this, in order to address claims of perpetration of crimes of this nature, other legislations were relied upon. Sections of the Penal Code,^[11] Sexual Offences Act^[12] and Children´s Act^[13] partially addressed the issue. The Counter Trafficking in Persons Act, 2010, In Article 3(5) accords hefty penalties on persons found guilty of human trafficking. The perpetrator is liable to imprisonment for a term not less than 30years or to a fine of not less than Ksh.30 million or both and upon a subsequent conviction, to imprisonment for life. The Sexual Offenses Act also amerces harsh penalties with regards to trafficking in persons. However, despite there being such harsh penalties upon prosecution and conviction, the legislations, seem to have a few loopholes that allow for trafficking in persons. An example is in chapter 3 of the Constitution which provides that a child of under eight years and of an unknown nationality found in Kenyan is to be considered a citizen. This has arguably provided a leeway for children being smuggled into the country at this young age.^[14]

With regard to trafficking in persons, Kenya needs to implement fully the current legislations put in place to deal with this issue. The legislations also need to properly address the areas of prevention, protection and prosecution. While the current legislations are indicative of efforts to prevent human trafficking, an issue arises in implementation. There is laxity among stakeholders responsible for implementing the legislations and prosecuting the crimes.

[1]  United Nations, Protocol to Prevent, Suppress and Punish Trafficking in persons, Especially Women and Children, Supplementing the United Nations Convention against Transnational Organized Crime, Art. III (2000).

[2] Wolken C, ‘Feminist Legal Theory And Human Trafficking In The United States: Towards A New Framework’ 409.

[3] UNICEF, Innocenti Insight; Trafficking in Human Beings, especially Women and Children in Africa, Pg. 10-12.

[4]Kerry J, ‘Trafficking in Persons Report’, June 2014.

[5] Mwangi G, The Nation, Kenya, Aug. 29, 2004, www.religionnewsblog.com/8585/deya-babies-are-victims-of-trafficking.

[6] Beatrice Akomo Ongito v Republic (Criminal Appeal No.274 Of 2012)

[7] Beatrice Akomo Ongito v Republic [2013] eKLR.

[8]Zachary Ochieng, News Africa, August 2002, www.newsfromafrica.org/newsfromafrica/articles/art_854.html .

[9] F.M.N v Republic (Criminal appeal case 321 of 2007) eKLR.

[10] F.M.N v Republic [2009] eKLR.

[11] Chapter XXV, Penal Code 81 of 1948, Cap 63.

[12] Sexual Offences Act, 2006, Cap 62 a.

[13] The Children´s Act of 2001, Cap 141.

[14] M Kenan and O Nick, ‘Child traffickers using church’, 1 November 2011 http://www.standardmedia.co.ke/

ABOUT THE AUTHOR

TRACY ODHIAMBO

Tracy Odhiambo is a lawyer with an LL.B (Hons) From Strathmore University Law School. She is a budding freelance writer from Nairobi, Kenya. Her interests include legal writing, African literature and English fiction.