Fiona Atupele MwaleDeputy Chief Law Reform Officer

Malawi Law Commission

CrossroadsHotel, Lilongwe5 August 2009

Towards 2010 FIFA World Cup: National Dialogue

against Human Trafficking

Model Legal Framework

Concepts

The proposed anti-trafficking regime will have both legal and non legislative interventions. While we are focusing on the legal in this presentation, the non legal interventions are equally as important.

Legislative interventions

• These are interventions that can be translated into legal obligations. There are legal implications for failure to comply with the legal framework such as imprisonment or fines.

• Legal interventions are not just about creating offences but also set out legal mandate to establish institutions that will enforce the law, empower the persons or body that will enforce the law and also create a framework for care and protection of victims.

Non-legislative interventions• These include: • 1.      Poverty alleviation• 2.      Awareness raising (civic

education)-  raise awareness on victim identification and assistance.- target audience to include general public, end users of trafficked persons, shelter managers, counsellors, medical personnel, advocacy groups, refugee assistance organisations, hotline operators, and other caregivers.

Trafficking in Persons Bill

• Section 3:Scope of applicationOffence must have some link with

Malawi for it to be prosecuted here. e.g.:

(a)Committed inside Malawi(b)Committed by citizen/resident of Mw

or victim is from Mw(c)Committed outside Mw but

consequences felt in Mw

Offences

Section 15: Trafficking in PersonsThe offence is drafted as in the Trafficking

(Palermo) Protocol.The penalty is 14 years imprisonment without

the option of a fineSection 16: Trafficking in childrenThe offence is drafted as per Trafficking

Protocol.The penalty is 21 years imprisonment without

the option of a fine.

Offences contd.

Section 6: Aggravated form of commission of the offence

Some factors surrounding the way the person or child is trafficked can make the offence more serious and so the punishment will be more severe. Examples of these factors include:

(a)Legal processes such as adoption etc are used

(b)Offender is relative of the child(c)Offence is committed by many (an organized

criminal group)/ or there are many victims

Offences contd.

(d) Offender is public servant, religious leader/person acting on official duty (NGO can be closed or deregistered on conviction)

(e) Offence is committed for the purpose of removing body parts or extracting organs or tissue

(f) The victim dies, becomes insane, pregnant, forced to abort, is maimed, or is exposed to substantial health risk

Offences contd.Section 18+19:Trafficking = moral turpitude/

Prohibition against working with children

Conviction will make person ineligible to run for, MP, President or 1st and 2nd VP.

Section 21: Benefitting from services of exploited persons will result in imprisonment for 7 years

Section 23: Every person has a duty to report trafficking, failure will attract a 2 year sentence or K100,000.00

Section 14:International Commercial transporters have to verify that passengers have the correct travel documents (criminal offence 7 years imp. or Mk500,000 fine.)

Section 15: Other acts promoting trafficking• Leasing, subletting property, used for

trafficking,• Producing IEC materials promoting

trafficking,• Facilitating or assisting entry or exit using

false or fraudulently obtained documents• Preventing trafficked persons from leaving

or seeking redress

• (criminal offence 7 years imp. No option of a fine.

Investigation and proceedings

Sections 27-42• Enforcement officers to

investigate and carry out arrests. Obstruction is an offence, 5 years imp.

• There are powers of search and seizure and powers to confiscate property that can be traced to trafficking

• The victim can commence a civil action against the trafficker

• Victims of trafficking immune from prosecution.

• (The 3rd schedule has a screening identification form to ensure that victims are really victims)

Trafficking in Persons Board

Sections 4-14

The Bill creates an independent Board of about 14 members with powers to:

a)Formulate policies programmes etc to prevent and suppress trafficking

b)Initiate education and awareness programmes

c)Generally coordinate and oversee the implementation of the Act

Trafficking in Persons Fund

Sections 49-55• A Fund is specifically created to fund all

trafficking activities.• It is made up of funds appropriated by

Parliament, loans, grants or donations, confiscation, seizure or sale of assets of traffickers

• The Board is responsible for the Fund

Care and ProtectionSections 45-48• Protection officers in charge of

care and protection• Treatment of trafficked persons in

compliance with human rights standards

• Victims immune from prosecution• Immigration status of victims

regularized (Schedule 3- screening form for victims)

• The rights of victims, especially their dignity and privacy are to be observed during interview. Schedule 2 has guidelines for the conduct of interviews and the special treatment of women and child victims

Witness Protection

Sections 45-48• The Board and everyone working with

victims must keep information confidential, especially identity information – oath will be administered

• Witnesses may apply to court for special protection measures

• unlawful disclosure of information could lead to seven years imprisonment

• Media restricted on reporting on steps taken in relation to victims capable of identifying the victim and on victims identity without permission of the court – MK1 Million fine or 2 years sentence.

Civic Education

• As part of prevention, the Board has functions to-

• formulate policy, programmes and strategies to prevent and suppress trafficking in persons and children;

•  

• initiate education and awareness programmes on causes and consequences of trafficking in persons and children;

• formulate and oversee implementation activities aimed at the suppression of trafficking in person;

Incidental amendments

• Immigration Act is amended to regularize status of victims.

• The Extradition Act is amended to add trafficking offences with a sentence of 7 years and above as extraditable offences

• The Penal Code is amended to standardize penalties for offences with elements of trafficking with offences in the Trafficking in Persons Act

• The Tourism and Hotels Act is amended to add child sex tourism and sex tourism as a reason for closure institutions registered under that Act

Thank-you for your attention

The End