Ignorance of the law is not an excuse for eSwatini police

BY INHLASE 

Behind the lack of urgency for action in the Royal Eswatini Police Service (REPS) to combat human trafficking crime lies a much bigger problem: the police and judicial officers’ insufficient understanding of the heinous crime that shatters lives, families and dreams.

This has been laid bare by the way in which a senior police officer mishandled a human trafficking case reported by *Jomo Dlakubi (60) at the Siteki Police Station in the eastern part of eSwatini. It also exposes the police insufficient understanding of the People Trafficking and People Smuggling (Prohibition) Act, 2009 which came into force on March 01, 2010. Its offences include deception, recruitment of a person for exploitation and taking advantage of a person’s vulnerability. It also rules out consent of the trafficked person as irrelevant. The United Nations on Drugs and Crime (UNODC) Issue Paper titled The Role of ‘Consent’ in the Trafficking in Persons Protocol states that a victim’s consent is irrelevant where it has been achieved by force, where a person has been deceived, or where the vulnerable position has been abused.

In an interview with Inhlase, Jomo, who hailed from the poverty-stricken rural area of Ngcina outside the sleepy Siteki Town, complained bitterly about the police’s failure to act on information he had given about the disappearance of his wife in August last year.  According to him, a female relative enticed his wife to cross to South Africa with a false promise of a well-paying job. 

Jomo further reported to the police officer that the woman who had allegedly trafficked his wife also owed him E2 500. Instead of following up on the information Jomo had given them, the police officer advised him to open a civil claim case against her to recoup the monies she owed him. Apparently, the police, who didn’t know what constitutes a human trafficking offence according to the law, assumed this was not a trafficking case, Jomo alleged.  

“I was shocked by the manner the police handled the matter. It made me realise that our country has no law. Previously, when I looked at a police officer…I saw someone who could protect me and my family. I trusted the police but now, I don’t trust them anymore. In fact, I will never trust them again,” he stressed. 

Yet the police service works closely with the Secretariat on Prevention of People Trafficking and People Smuggling set up in the Cabinet Office in 2010. While the Secretariat coordinates and monitors all anti-people trafficking and smuggling efforts, the law enforcement enforces the law that protects and assists the victims and prosecutes the offenders. 

Seeing that police were not assisting him, Jomo used his own contacts in South Africa to track down his wife. His old friends and former colleagues working in the mines came in handy in his mission to find his wife. His search also received a major boost when his stranded wife called and shared her exact location. 

“I then took my car and went to fetch her. I found her working in a grocery shop owned by an Asian businessman. The businessman did not give me any trouble when I arrived there,” Jomo said.

Before working at the grocery shop, Jomo discovered that his wife had been hawking second-hand clothes, a business owned by the family relative who had smuggled her into South Africa. She was duped into crossing the border with the false promise of greener pastures. Like many struggling housewives in rural eSwatini, she was susceptible to trafficking due to her poverty and search for a better life. 

Unbeknown to the trafficked woman that she was destined for hell as she would be locked in the cycle of exploitation across the border. When Inhlase asked to interview her, Jomo refused on the grounds of protecting her privacy and against stigmatisation. He accused the suspect of exploiting her by not paying her for selling the second-hand clothes. Having entered SA illegally, she suffered silently because she feared arrest and deportation. She subsequently fled the area where she had been placed by the alleged smuggler which was profiting from her exploitation. She later found a job at the grocery shop owned by an Asian businessman, and it was while working at the grocery shop that the wife got the opportunity to contact Jomo and disclose her whereabouts. 

Storm Simpson of The South African newspaper revealed that the 2022 Trafficking in Persons in South Africa Report produced by the Laser Pulse Project jointly with the United States Agency for International Development (USAID) ranked South Africa as a hub for human trafficking. It found that SA is a source, transit and destination for Trafficking in Persons (TIP). 

Sandwiched between Mozambique and South Africa, eSwatini is on the list of countries with a high number of victims of human trafficking found in South Africa. South Africa recorded 143 victims, followed by Malawi (105), Lesotho (54), Zimbabwe (43), Eswatini (21), Bangladesh (21), Mozambique (5), Ethiopia (3), Zambia (2), Nigeria (2), and unknown (1). Of the 176 people accused of human trafficking, 123 were men and 52 were women. The gender of one of the accused was unknown.

“The nationalities of the accused include South Africa (73), Nigeria (44), China (11), Bangladesh (10), Zimbabwe (8), Ethiopia (4), Mozambique (4), Lesotho (3), Pakistan (3), Malawi (2), Cameroon (2), Eswatini (1), Ghana (1), and unknown nationalities (10),” Simpson quoted the TIP report. 

According to the Private and Cabinet Office Annual Performance Report of April 2022 – March 2023, eSwatini continues to witness human trafficking and smuggling cases. Currently, there is one case of suspected people trafficking under investigation. Three others are still pending before courts dating back to 2018. The report found that the wheels of justice turn slowly for the victims. 

“The country continues experiencing challenges on the timely finalisation of cases. Reasons for the delays vary from COVID 19 restrictions to unavailability of presiding officers assigned other tasks and defence attorneys unavailability or lack of instructions,” reads the report.

Regionally, still pending cases in 2022 include the Manzini region case of 2019, Hhohho region case of 2019, High Court case of 2018 and Shiselweni region case of December 2022. The report also explains that the delay has mostly been caused by the Defence Counsels who have raised applications which have been filed at the High Court. The case will await the finalisation of the application filed at the High Court. The delay in finalisation of these cases are a threat to the country’s ranking in the 2023 Trafficking in Person (TIP) report according to the Cabinet report. 

“There are three cases pending before court. These cases commenced prosecution in the previous financial year; one was a domestic people trafficking case involving four children and is a Hhohho region case. One case was a suspected people trafficking case involving a female teenager of Mozambican origin and a Manzini region case. One case is pending continuation at the High Court,” the report reads.

The U.S. State Department’s trafficking in person report 2022 expressed concern over eSwatini government’s efforts to fight against human trafficking. This is despite the establishment of the The Prevention of People Trafficking and People Smuggling Secretariat in the office of the Prime Minister. 

“The lack of government coordination, leadership by the Inter-Agency Task Force for the Prevention of People Trafficking and People Smuggling and the Prevention of People Trafficking and People Smuggling Secretariat, dedicated funding, and specialised anti-trafficking training for front-line officers continued to hamper anti-trafficking efforts,” reads the US State department’s TIP report 2022.

As a result, last year the US Department of State reported that eSwatini had been ‘downgraded to Tier 2 Watch List’, a category of countries the Secretary of State deems ‘require special scrutiny during the following year’. 

Meanwhile, the International Organization for Migration (IOM), a key stakeholder in eSwatini government’s efforts to combat human trafficking states that victims of human trafficking in Africa are ‘predominantly trafficked within their region of origin.’ The World Migration Report 2022 recommends that criminal justice practitioners be capacitated to handle ‘the complexity of the crime of human trafficking’.

“Capacity-building thus traditionally constitutes one of the main measures taken to strengthen the criminal justice response to human trafficking. Beyond capacity-building, cooperation among the different stakeholders is essential in improving the prosecution of traffickers,” reads the report in part.

Additionally, the report notes that one of the major challenges in most countries is that cases of human trafficking are “not recognised as human trafficking and wrongly investigated as smuggling or as minor offences involving labour and immigration violations”

IOM further recognises human trafficking as a development challenge in the 2030 Agenda for Sustainable Development. It calls for the eradication of forced labour, modern slavery and human trafficking in its Target 8.7.2. Sustainable development and counter-trafficking require poverty eradication (goal 1), gender equality (goal 5), increased opportunities for decent work (goal 8) and access to justice (goal 16). 

With its roots in inequality, trafficking constitutes an obstacle to the development and   well-being of societies through the denial of people’s human dignity. Human trafficking, which is highly gendered, has negative economic and social impacts.

When Inhlase sought comment, Bertram Stewart, Principal Secretary in the Prime Minister’s Office said the matter is under investigation. 

However, National Commissioner of Police, Tsitsibala Dlamini, whose department also falls under the Prime Minister, refused to provide police data of human trafficking cases. He cited the Books and Newspapers Publishing Act of 1963 stating that “REPS, as a government department, can only work/deal with an entity or media house that has been fully accredited by the Ministry of Information, Communication and Technology (ICT).”  

Inhlase understands that the woman who allegedly trafficked Jomo’s wife is known to the police but she is yet to be questioned or formally charged.  

*not his real name