Posted: 11 March, 2025 Filed under: Zororai Nkomo | Tags: abuse of power, child trafficking, Convention against Transnational Organized Crime, desperate jobseekers, emotionally vulnerable, fraud, human trafficking, Palermo Protocol, profit, sexual exploitation, use of force, Zimbabwe, Zimbabwe’s Trafficking in Persons Act
Author: Zororai Nkomo
African Committee of Experts on the Rights and Welfare of the Child (ACERWC)
Introduction
In 2014 Zimbabwe domesticated the United Nations (UN) protocol that aims to prevent, suppress, and punish human trafficking, especially of women and children – the Palermo Protocol, through the promulgation and subsequent enactment of the Trafficking in Persons Act of 2014 ( TIP Act). The 2023 and 2024 Trafficking in Person Report shows that Zimbabwe is among Southern African countries still grappling with trafficking of children for labour exploitation. Young people are being exploited in the mining and farming sector. The recent United Nations Global Report on human trafficking revealed that there is a 25% increase in children being exploited globally. The most prevalent forms of trafficking children face are forced labour, sexual exploitation and forced criminality.
This article aims to analyse Zimbabwe’s TIP Act in addressing the growing trend of child trafficking. The author argues that, although the main reason for the promulgation and subsequent enactment of Zimbabwe’s TIP Act was to domesticate the Palermo Protocol, the current legislation does not offer enough comprehensive protection from child trafficking in line with the spirit and tenor of the Palermo Protocol. The article further illustrates what Zimbabwe can learn from South Africa and Kenya on how to craft comprehensive trafficking laws for effective prosecution, prohibition, protection and prevention of the scourge of child trafficking bedevilling the contemporary world.
What is human trafficking?
Human trafficking is an act of recruiting, transporting, transferring, harbouring and receiving a human being through the use of force, fraud, any form of misrepresentation, abuse of power, or taking advantage of someone’s vulnerability to have control over that person for purposes of exploitation. Article 3(b) of the Palermo Protocol provides that consent is irrelevant where force or any other form of misrepresentation is used to exploit another person. In cases which involve children consent is irrelevant even if no force or fraudulent means are used to exploit the child.
Traffickers target people who are vulnerable and easy to exploit such as children, poor and marginalised women, desperate jobseekers, and those who are psychologically or emotionally vulnerable. Trafficking can happen within the same country or across borders.
Is there any difference between human trafficking and human smuggling?
People often confuse trafficking and smuggling. While these two crimes share some similarities, the primary difference between the two is exploitation which is always part and parcel of trafficking in persons.
Legally, human smuggling and trafficking are regulated by two different United Nations Protocols. Human Trafficking is regulated by the Palermo Protocol, whereas human smuggling is regulated by the UN Protocol against the Smuggling of Migrants by Land, Sea and Air(Smuggling Protocol). Both protocols were crafted to supplement the 2000 United Nations Convention against Transnational Organized Crime.
Article 3(a) of the Smuggling Protocol defines smuggling as an act of payment or procuring for illegal entry into another country or state where the person is not a permanent resident or national. An example is what commonly happens at the Beitbridge border post where a lot of young people pay so that they can be illegally smuggled into South Africa in search of better opportunities. On the other hand Article 3(a) of the Palermo Protocol defines trafficking as the use of fraud, misrepresentation, deception, force, or fraud to exploit another human being for profit.
In essence, smuggling is a border crime where the person who is being smuggled consent and is an active participant in the commission of the crime, whereas trafficking is a crime against a person where the exploited person does not consent to the exploitation.
The purpose of human trafficking is to exploit another human being for profit, whereas the purpose of smuggling is to profit from illegal migration. Therefore trafficking has a perpetual effect because the trafficked person will continue to be exploited through coercion whereas smuggling is a once-off activity of illegally gaining entrance into another country.
However, it is important to note that many people who are smuggled into other countries end up being trafficked – they end up being exploited for labour or sexual exploitation. Thus, there is interconnectedness between trafficking and smuggling although they are different crimes.
Why is Zimbabwe’s 2014 Trafficking in Persons Act weak in combating Child Trafficking?
In 2014 the Zimbabwean legislator made efforts to domesticate the Palermo protocol to combat human trafficking. However, the act fails to comprehensively offer adequate protection for child trafficking which is a growing scourge affecting the country and the African continent.
The definition of trafficking by the Trafficking in Persons Act creates legal and interpretational challenges. Section 3(1)(a) of Zimbabwe’s Trafficking in Persons Act defines trafficking as the transportation of individuals outside or within Zimbabwe for unlawful purposes. This provision seems to suggest that for the crime of trafficking to happen there should be movement. Therefore if there is no movement taking place there is no crime of trafficking. However, trafficking can happen even without movement. Young people are being exploited in the mining and agriculture sector in Zimbabwe. They are being trafficked without movement or taking them from one point to the other. Child Labour Research has revealed that Zimbabwe is among African countries witnessing an increase in cases of child trafficking for labour exploitation which happens in mining and agricultural sectors. The majority of these young people who are exploited are not transported but are being trafficked in their areas of domicile. Consequently the Trafficking in Persons Act offers limited protection to young people in most communities.
Zimbabwe should draw inspiration from South Africa and Kenya on how to craft trafficking legislation which defines human trafficking in a manner which protects children from the growing scourge of child trafficking. For instance, section 4(1) of South Africa’s Prevention and Combating of Trafficking in Persons Act defines trafficking as a crime which can happen within or across borders. Similarly, section 3(1)(a) of Kenya’s Counter-Trafficking in Persons Act defines trafficking as a crime where a person recruits, transports, transfers, harbours or receives another person for exploitation using fraud, coercion or any form of misrepresentation for exploitation. Such definitions offer enough protection against child trafficking happening in communities within the country.
Zimbabwe’s Trafficking in Persons Act does not define child trafficking. The word child is mentioned in section 3(3) of the Act where it provides that trafficking is considered to be committed in aggravating circumstances when the victim is a child. This means that the concept of a child in the discourse of human trafficking as provided by the Act only matters as an issue to do with sentencing a convicted person. In criminal law aggravating circumstances are factors that increase the severity or culpability of a criminal act. Viewing children in terms of aggravating circumstances in human trafficking discourse rather than explicitly criminalising trafficking of children results in limited protection against child trafficking, even though young people are more prone to human trafficking. The main reason for the crafting of the Palermo Protocol was to fight trafficking, especially in women and children. Therefore, Zimbabwe’s Anti-Trafficking legislation was supposed to focus more on children by clearly defining child trafficking. The current legislation fails to provide needed protection to young people from various forms of child trafficking.
Conclusion
While the promulgation and subsequent enactment of Zimbabwe’s Trafficking in Person Act heralded the dawn of a progressive legal epoch in fighting human trafficking, Zimbabwe needs to align its human trafficking legislation to combat the growing incidents of child trafficking for labour and sexual exploitation.
About the Author:
Zororai Nkomo is a Human Rights Lawyer, Technical Assistant with the African Union’s Committee of Experts on the Rights and Welfare of the Child (ACERWC), Anti-human trafficking advocate, journalist and social justice activist. He can be contacted at zoronkomo@gmail.com
