When police stormed an erotic bar in Mombasa, Binsa (not her real name) was happy that help had finally arrived.
What she did not know was that she was being moved from human trafficking bondage to a police cell, a classic case of ‘out of the frying pan into the fire.’
Binsa and 11 other women had been trafficked from Nepal and India after being promised jobs. On arrival in Kenya, they were forced to become dancers in the erotic bar, entertaining male patrons who paid for their services.
Binsa and her fellow dancers were raped and sexually harassed countless times before they were ‘rescued’ by the police in April 2019.
The ‘rescue’ turned out to be an arrest, and the women were locked up at Nyali Police Station sparking an outcry from human rights groups led by Awareness Against Human Trafficking (HAART), which sued the government.
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Eventually, the State found shelter for the women before repatriating them.
Most available option
Unfortunately, police cells are the immediate and most available option for the police whenever they rescue victims of human trafficking and related crimes.
Though Kenya’s progress in responding to human trafficking is commendable, existing structural and procedural gaps continue to obstruct the wheels of justice leading to further violation of victims’ rights and creating loopholes for traffickers to walk free.
As a signatory to international conventions against human trafficking, Kenya is also obliged under the Counter-Trafficking in Persons Act 2010 to provide ‘appropriate shelter and other basic needs’ as well as ‘psycho-social support.’
However, the law has been criticised for glaring gaps that further violate the victims’ rights and give perpetrators the leeway to escape justice.
The Act recommends 30 years’ imprisonment or a Sh30 million fine, watering down the seriousness of the crime.
Since 2015, the Global Trafficking in Persons Report has ranked the country in the second tier – meaning that the country does ‘not fully meet the minimum standards for the elimination of trafficking, but is making significant efforts to do so.’
The dearth of State-run victim support services contribute to the poor ranking. This is because legal and structural loopholes expose victims, leaving them to be treated like criminals despite the horror suffered in the hands of traffickers.
Director of Public Prosecutions (DPP) Noordin Haji reckons that over-reliance on partner organisations to provide shelters for victims “is a big impediment to effective management of human trafficking, especially protection of victims”.
“We tend to rely more on civil society groups and other organisations like the United Nations. What we have seen in Kenya is that many of the people who are arrested are the victims themselves. The implication of taking the victims to a cell is traumatising – it is basically removing them from one hard situation to another,” he says.
Such a trend, Haji warns, runs the risk of merely disrupting a crime instead of going after the criminals and makes it difficult for victims to cooperate, reducing the chances of securing justice and dismantling local and international trafficking syndicates.
The DPP concedes that without winning the trust of the victims, successful prosecution and conviction is difficult. This is made worse by lack of adequate international cooperation in tracing the origin of the human trafficking syndicates.
Jacqueline Njagi, a senior principal prosecution counsel who heads the Sexual Gender Based Violence Division (SGBV) at the DPP’s office recalls an incident in 2019 when 13 children trafficked from Somalia were rescued in Nairobi’s Eastleigh estate.
The court directed that the children be taken to the Nairobi Children’s Remand Centre – a place set aside for children awaiting judgement over various crimes such as murder, theft and loitering.
“The case was taken to the children’s court, but before that, the question was where they would be kept. After talks with colleagues, I contacted a private shelter, where they were kept but we had to use our own resources to feed them for four days until the court committed them to the Nairobi children’s remand home,” recalls Ms Njagi.
Whereas it is easier to find shelter for children compared to adults, Trace Kenya Executive Director Paul Adhoch says Kenya needs to fast-track a solid legal framework for the provision of shelter for victims of human trafficking and related offences.
In the absence of a legislative framework, Adhoch says private rescue centres willing to take in victims face procedural and legal hurdles.
Such gaps have forced anti-human trafficking organisations and State organs to follow a lengthy legal processes to have victims placed in shelters.
Civil society organisations (CSOs) that offer rescue centres face capacity and resource challenges following a recent spike in the number of victims in need of shelter and safe houses.
Since the onset of Covid-19 in March 2020, Kenya has reported an increase in cases of violence against women, children and in some cases, men, leading to a sharp rise in the number of victims in need of protection.
The United Nations Office on Drugs and Crime (UNODC) and other international organisations have warned that the number of victims of human trafficking during the Covid-19 pandemic was on the rise.
“With Covid-19 restricting movement, diverting law enforcement resources, and reducing social and public services, human trafficking victims have even less chance of escape and finding help. As we work together to overcome the global pandemic, countries need to keep shelters and hotlines open, safeguard access to justice and prevent more vulnerable people from falling into the hands of organised crime,” says UNODC Executive Director Ghada Waly.
Most of the partner organisations relied upon by Kenya to offer shelter were set up to serve a variety of victims including orphans, SGBV and street children.
This, according to the DPP’s office, runs the risk of not providing complete aftercare services, which include security, healthcare, psycho-social support, integration of victims and provision of other basics such as food and clothing.
“It is time the government thought of having a safe house because private ones offer only shelter, which is not all rounded. You find they have one component and lack another,” says Njagi.
Seamless judicial process
According to Adhoch, such an arrangement will allow a seamless judicial process.
“Once you rescue a victim, you know where to take them and you are sure they will not be criminalised,” he says.
Whereas CSOs’ and NGOs’ role is to complement, anti-human trafficking crusaders believe it should be the government’s primary responsibility to provide shelter to secure victims and witnesses.
“A lot of times we feel that the national government’s duty begins and ends with the investigation and prosecution, but how do you ensure that your victim as the main complainant in this case is able to come to court, how do you ensure that he/she is not being further violated even if the case is not in court,” says Gitau, Equality Now’s Regional Coordinator for Africa.
Enhancing Africa’s Ability to Counter Transnational Crime researcher Mohamed Daghar advises Kenya and her East African counterparts to develop frameworks to address causative factors that increase vulnerability of victims, legal protection and operational hindsight and also the socio-economic challenges East Africans face that make them vulnerable to trafficking networks.
“This translates to having a national employment policy in place,” he says.
-The writer is a fellow of the Resilience Fund of the Global Initiative against Transnational Organised Crime