Sex trafficking is a particularly degrading form of human trafficking, defined generally as recruiting, enticing, harboring, transporting, providing or obtaining either: (1) an adult for commercial sex by force, fraud or coercion, or (2) a juvenile for commercial sex, regardless of the means.
On 30thMay 2020, the Anti-Human Trafficking and Child Protection Unit (AHTCPU) raised a red flag over the alarming and sudden spike in online sex trafficking, recruitment and exploitation of children in Kenya, with concerns that the trends will continue for as long as children are at home and exploring the internet amidst online learning.The Head of the AHTCPU, Mueni Mutisya was worried that after the President ordered the dusk to dawn curfew and cessation of movement, intelligence reports reveal that human traffickers are capitalizing on the online platform to recruit, groom and exploit children and lure adults feeling the pinch of the emaciated economy as a result of COVID-19. Recently, Mr. Thomas Sheller, a German, was charged with seven counts for sodomising four teenagers aged between 10 and 13 years in Kisumu and Nairobi.
Human trafficking is not a loud crime, and as such, victims rarely cry out for help, leaving many cases unnoticed. Instead, victims of human trafficking are usually considered to be criminals owing to their illegal entry in destination states. If the plight of these victims is not addressed, they will continue to be dejected unto the abyss of the unknown. Protection of the victims is even more important now, as the world grapples with the scourge of the infectious disease, Covid-19, which has intensified the vulnerabilities exploited by human-traffickers.
The United Nations Children’s Fund (UNICEF), Regional Advisor Rachel Harvey estimates that a third of internet users are children below 18 years with internet usage increasing by half (50%) following the stay- at- home orders adopted by most countries to help suppress the spread of COVID-19. Harvey warning that it has put children at risk of online sexual exploitation. Harvey cautions that before COVID-19, it was estimated that they were 750,000 people looking to connect for with children for sexual purposes online at any one time. With limited physical interaction, global trends further single out increased and growing demand for child abuse material. This has given traffickers opportunities to devise new venues of animating the ‘lucrative’ business of sex trafficking/tourism by leveraging on the online space to prey on susceptible and unwitting users.
Sex trafficking continues to occur across the globe at an increasingly alarming rate. Despite misconceptions that sex trafficking requires transportation across State or country borders, the majority of victims are domestically trafficked within their own country by persons of the same nationality.
It involves taking the VOT back to his/her community/society. Return and re-integration can be both in-country for victims of internal trafficking and out of country for victims of international trafficking. The purpose of this process is to foster, nurture and strengthen the rehabilitation process of the victim into his/her community or host community so as to live a normal life. Family tracing, verification and reunification should only take place after the victim has undergone the reflection and recovery period. Support is to be given to victims from the time of being rescued to the time they are taken back to their families and monitoring done after they have been taken to their families and communities.
Factors to consider before reintegration
- The best interest of the victim, taking into account his/her age, sex, security and disability;
- Respect for the victim’s human rights and dignity throughout the process;
- Obtaining the victim’s informed consent before reintegration;
- Maintaining confidentiality at all times and disclosing information only on a need-to-know basis;
- The cultural/religious values of the victim;
- Developing an individual reintegration plan for each victim;
- The medical condition of the victim;
- Family tracing;
- Family and community preparedness to receive the victim;
- Availability of other service providers in the area that can assist the returned victim.
Human Trafficking: Kenya’s Legal Framework
Kenya has enacted a number of statutes to protect victims of sex trafficking
- The Constitution of Kenya, 2010.
- Children’s Act 2001 (under review).
- Sexual Offences Act 2006
- Kenya Information and Communications Act
- The Victim Protection Act, 2014
- Computer Misuse & Cybercrime Act 2018
- Counter Trafficking In Persons Act, 2010
- Data Protection Act, 2019
- Film and Stage Plays Act
The Counter-Trafficking in Persons Act provides detailed assistance, structures and funds for victims of trafficking. Section 15 provides for the following: return to and from Kenya, resettlement, re-integration, appropriate shelter and other basic needs, psychosocial support, appropriate medical assistance, legal assistance or legal information, including information on the relevant judicial and administrative proceedings and any other necessary assistance that a victim may require. However, there is need for adequate mechanisms as discussed herein to be put in place by government and stakeholders to ensure that the law is fully implemented. The Counter-Trafficking in Persons Act too, provides a framework to guide and create awareness creation and development of standards for all stakeholders.
Chapter 4 of the Constitution on the Bill of Rights contains fundamental rights and freedoms, some of which can be the basis for protecting the victims of trafficking in persons. These include the right to life; equality and freedom from discrimination right to human dignity; protection against slavery, servitude and forced labor and freedom of movement and residence and protection of victims of offences.
Article 59 (2) (g) under this Chapter also sets up a Commission that promotes, respects and develops a culture of human rights in Kenya. One of the principal functions is to ensure compliance with obligations under treaties and conventions relating to human rights.
All the above rights cover a cross-section of abuses that are notorious with the acts of sex trafficking and human trafficking generally; such as, torture, inhuman or degrading treatment, discrimination, restriction of movement and many are killed as a result of violence or from diseases incurred from their sexual victimization.
Current Practice and gaps
Law Enforcement effort
The Directorate of Criminal Investigations (DCI) – Anti Human Trafficking and Child Protection Unit is part of a Multisectoral Technical Working Group on Online Child Protection with the aim of strengthening collaboration among state and non-state actors working in online child protection.
Establishment of the DCI Anti-Human Trafficking and Child Protection Unit which has a specialized Cyber division dealing with Online Child Sexual Abuse and Exploitation (OCSE). It refers to crimes committed by offenders who use internet to facilitate the sexual abuse of children. They do so by:
- investigation and prosecution of online offenders
- Receives cybertiplines from National Center for Missing and Exploited Children. (The nation’s centralized reporting system for the online exploitation of children).
- victim support
- Sharing of information (via linkage to Interpol).
- Hosts Internet Watch Foundation reporting portal launched on 27th January 2021. A new reporting portal will provide a direct link to Kenyan law enforcement to report criminal images and videos of child sexual abuse to expert analysts to support them in their fight again online child sexual exploitation.
The Government of Kenya does not fully meet the minimum standards for the elimination of sex trafficking but is making significant efforts to do so. The government has demonstrated overall increasing efforts which include significantly increasing the number of victims identified, utilizing the victim assistance fund, launching a cybercrime center to investigate child sexual exploitation and child sex trafficking cases, enhancing law enforcement coordination with other countries on trafficking cases, and improving efforts to regulate recruitment agencies and support and protect migrant workers.
However, the government reported a decrease in investigations, prosecutions, and convictions. Kenyan authorities continued to treat some victims as criminals and the availability of protective services for adult and foreign national victims remained inadequate, which contributed to quick repatriation of foreign victims due to lack of available shelters. The government also sometimes tried trafficking cases as immigration or labor law violations rather than crimes under the anti-trafficking law, which resulted in traffickers receiving less stringent sentences. The Counter-Trafficking in Persons Act continued to allow fines in lieu of imprisonment for sex trafficking offenses which remained incommensurate with other serious crimes.
In Kenya, under the Constitution 2010, Article 49(1) (H) provides that all offences are bailable unless there are compelling reasons for the accused person not to be released. In practice, some sexual offenders are usually released on bail, putting the victim’s security at risk and some have ended up being killed. Further, the judiciary sometimes take long to hear such matters and the more they take long the more the victims of sexual violence get traumatized.
It is important to note that in some cultures it is still a taboo to talk about issues of sexual violence hence some sex trafficked victims choose to keep quiet.
Victims of sex trafficking face major problems in being reintegrated into their home communities when they are freed from the situation into which they were trafficked. They include: Social stigma, bullying, rejection, trauma etc. The government and organizations of goodwill have developed some procedures and standards as they work.
Meaningful reintegration requires a lot of time and financial resources. Most organizations operate on a limited budget and a fixed timeframe dependent on donor requirements. Before a survivor of trafficking is taken back to her/his family and community, there is need to take care of her/his wellbeing which includes medical care, counseling and some finances to help her/him begin a better life. Residential assistance requires well trained and competent staff and a budget for operational costs. Some survivors may have complex cases especially where it is not safe for them to return to their homes. The process of looking for alternative living arrangement may take longer than the period funds are available for. Once a survivor has been taken to his/her original family and community there is need for regular follow-ups which must include home visits. The costs of doing follow-up may be out of reach for many organizations.
Reintegration programmes are yet to actively and meaningfully involve survivors of sex trafficking, their families and communities in the whole programme cycle. Programmes go through inception, planning, implementation and evaluation with the input from the government, organizations and their donors.