Combating Trafficking In Persons Act Criminology Essay
As observed in the preceding sections, there exist certain limitations in the legislations present in Mauritius governing the scourge of human trafficking. Consequently, the purpose of this dissertation was to make an analysis of the laws in Mauritius and try to propose some recommendations to remedy the situation. This dissertation has accounted for issues dealing with historical background, definition, types, and causes as well as contrasted human trafficking with migrant smuggling. It also consecrated a part to an overview and analysis of the laws governing human trafficking in Mauritius. Finally, chapters 4 and 5 have contributed in putting forward an overview of the situation in Mauritius while also proposing some recommendations respectively. This part will take into consideration mainly those recommendations which shall help in improving the present situation of human trafficking in Mauritius, followed by some concluding remarks.
First of all, given that the legislator established a weak and lacking definition of human trafficking, the latter must be further refined so as to widen the scope of its legal jurisdiction. This measure is imperative in case an offence constituting human trafficking has been committed but the law does not provide for it as a crime. This reasoning can be found in Article 11(2) of the General Declaration of Human Rights, which states that; “no one shall be held guilty of any penal offense on account of any act or omission which did not constitute a penal offense under national or international law at the time when it was committed”. This will also to prevent an offender from receiving a lesser penalty under another statute than as provided by the CTPA. Additionally, the crime of human trafficking must be introduced into the Criminal Code Act, since it only provides for the penalty of procuring, enticing or exploiting prostitutes. Besides, as required by the Palermo Convention, a clear line of demarcation must be drawn between the offenders and victims of human trafficking so as to improve the enforcement of the law as well as to enhance the protection of human rights.
The OSCE-ODHIR also recommends governments to establish and apply penalties for human trafficking, which have a deterrent effect and consequently reveal the seriousness of the crime and human rights violations (Office for Security and Co-operation in Europe-Office for Democratic Institutions and Human Rights [OSCE-ODIHR], 2001, p.43). In this way, the present penalties must be rendered more stern by providing for ‘aggravating circumstances’, for example by amending either the Judicial Provision Act or the CTPA itself to incorporate these circumstances to increase the sentence, which shall amplify the present provisions especially to prevent traffickers from getting out with too light punishment and Mauritius from becoming a safe haven for them.
Furthermore, the Combating Trafficking in Persons Act has to be modified for the reason of providing for the prosecution liability of legal entities in cases of trafficking in person, as recommended by OSCE-ODHIR. This is because the prosecution of the individual may not be adequate to reach the main protagonists and these entities may continue business with other management. The penalties for such companies may include “fines, confiscation of assets, closure of establishments, exclusion of the entitlement to public aid or tax benefits, placement under judicial supervision and disqualification from the practice of commercial activities” (OSCE-ODIHR, 2001, p.43). Thus, the present legislation must recognise that persons may become human trafficking victims of bogus companies and other organisations.
With regards to the doctrine ‘nullen crimen, nulla poena, sine lege’, there is a need for words drafted in law in order for a person to be declared guilty of a crime. In other words, the principle clearly states that to criminalise an attempt to commit an offence of trafficking in person, it must expressly be provided by statutes. This is due to the fact that criminalization of attempting is crucial to ensure that traffickers are prosecuted, although the trafficking cycle is incomplete. This may be the case whereby the trafficker who intended to receive victims in the destination country, does not do so since they succeed in fleeing or get arrested by police beforehand. Further, the complicity or default of state officials must clearly be provided for. This could be for example, trafficking committed by the omission to act or default by officers, who are not actually part of the criminal group, like an immigration officer who turns a blind eye to the traffickers entering or leaving the territory (OSCE-ODIHR, 2001, p.47). Additionally, in order to ensure the effective prosecution, there is extreme need to provide for a clause enabling action against any person who tries to obstruct the application of the sections of the CTPA. Thus, criminalization of all these acts related to trafficking must be taken into account.
Moreover, other related piece of legislations, like the Immigration Act, that go in hand with the CTPA must be amended. These amendments are fundamental for instance to accord for a wider discretion and authority to immigration officers as well as for the establishment of more sophisticated and concise procedures in case of national and international human trafficking and human smuggling.
The legislator must revise the law so as to provide for a far more comprehensive assistance to the victims as is the case in Texas in the US where assistance is offered to domestic victims of human-trafficking with a landmark law. This section of the legislation establishes not only a ‘state-wide Human Trafficking Prevention Task Force’ but also brings in training Programs for law-enforcement officers. Additionally, it also funds a program with a view to connect services to trafficking victims as well as it allows grant program to organisations which secure domestic trafficking victims with assistance. Therefore, it is not only fundamental to penalize the offence but it is also imperative to ensure that there are enough and well trained enforcers so as to assist victims and to prevent such offences. Besides as empirically seen from the research performed that there is no close collaboration between the Passport & Immigration Office and NGOs’ like Amnesty International and IOM. They even neither utilize the CTPA nor have any program for human trafficking in Mauritius. Further, even the G/TIP (2010) in its report highlighted that there is no coordinating body or mechanism to facilitate cooperation between the various ministries, law enforcement entities and NGOs’. Hence, there is also a necessity to seek the assistance and work with the various NGO’s and train them with the most knowledgeable information alongside the ability to help combat such scourge, as rightly highlighted by article 6 al 3 and 9 al 3 of the Palermo Protocol, because very often they are the ones present on the field.
Payment of compensation constitutes a form of justice for the victims for the sufferings and distress they endured. In this way, the compensation has got restorative and preventive effects as it may reconstruct the lives of the victims by assisting in their country of origin. Consequently, in the event compensation cannot be guaranteed, for instance, if the offender does not have the means or these cannot be located, the State may compensate the victims. According to the National Referral Mechanism Handbook, countries may create funds from which victims may claim for compensation (OSCE-ODIHR, 2004, p.107). The OSCE Action Plan on Combating Trafficking in Human Beings as well as the Council of Europe Convention on Action against Trafficking in Human Beings also recommend either the setting up of such compensation funds or that trafficking victims been allowed access to funds provided for violent crimes victims (Trafficking in Human, 2007).
The ‘non-renewable period’ accorded to victims of human trafficking must be incremented to provide for renewal in case of utmost necessity to provide for proper investigations. A ‘recovery and reflection period’ as proposed by the Palermo Protocol must be presented to encourage fuller participation of the victims who have been undergoing severe trauma. Mauritius must also provide trafficked victims with ample health and social services while in the country; ensure that they return to their country safely; and co-operatively work for complete implementation of the Standards. Explicit words must be incorporated that trafficking victims must not be subject to any legal trial or punitive actions, like detention preceding their repatriation.
In addition, the present ‘Non disclosure of identity of denunciator’ should be enhanced by incorporating a ‘National witness Protection’ so as to promote denunciation of any case of trafficking and prevent retaliation by traffickers on victims and their families as the case of the Italian boss. It is only reported cases that will trigger investigation and prosecution of culprit else they will perpetuate their business in the shade of ignorance.
Subsequently, to promote these measures collaboration with NGOs will be a must to develop information programs on Mauritian laws, trafficked persons’ rights and health protection as well as the actions necessary to gain care or assistance and in like manner. Such programs should also take into account the cultural characteristics of the populations concerned and rely on suitable implementation methods. Information and awareness sessions for professionals who may come in contact with trafficked persons, notably police and customs officers will also be required.
It is an irrefutable fact that there has been commendable effort to sensitise the public about prostitution and other forms of child abuse but one major constraint lies in the fact that the majority of people is not even aware of the new legislations on human trafficking. It is high time that just like campaigns on the “16 rights of a child” was broadcasted, similarly advertisements on what constitute human trafficking as such and the penalties as well as protection provided to the victims are aired for the mass population. This measure is imperative because "ignorantia juris non excusat"; the ignorance of law is no excuse.
From an analysis of the situation, it is clear that there is a lack of concrete data on the phenomenon of human trafficking. The current situation indicates prosecution of some reported case but what happens to those, still occurring clandestinely whereby the victims’ voice are suppressed and nobody really willing to get involved by denunciating such practices. The stunning part is the last available figure is that of 2600 child prostitutes reported in 2002 since then no other research were carried out but there may be thousands more under the grip of trafficker. Kelly & Regan (2000), cited by UNDOC (2006, p. 44), affirmed that even the IOM faced difficulty to produce accurate estimates and in one of its report on trafficking in women; it concluded that “it was not possible with any level of accuracy”. For this reason, some researchers have come with extrapolation techniques to try to provide a more realistic picture of the situation.
Consequently, a vast amount of research needs to be performed in order to cultivate an enhanced comprehension of the problem and to identify the actions that are most likely to tackle the arising needs. Hence, research must be conducted on the various types of human trafficking which have not yet been documented but occur in the country as well as the magnitude of their occurrence. An evaluation of the issue of human trafficking and the means present to combat it will be of great help. It is also elementary that victims’ needs at the diverse phases of their affliction as well as propositions by NGOs  in Mauritius for combating human trafficking be considered.
Trafficking in person must not be regarded in isolation since it is often linked to other criminal activities. It is a fact that traffickers not only force the victims into prostitution but also into selling drugs and pick pocketing (Guonatilleke 1994, Richard 1999, Kendall 1999, and Brown 1967, cited by Aronowitz 2001, p.177). A posteriori, it is paramount for the security and welfare of the population as well as the image of Mauritius on the international scene that the legislation on human trafficking is further enriched. A lot of documentation and assessment need to be carried out to understand the degree of the problem. The Combating of trafficking in persons Act, as it is, tackle many legal issues but unfortunately it overlaps in other areas.
As stated by Ban Ki Moon (End Slavery, n.d); “millions of our fellow human beings continue to live as contemporary slaves, victims of abominable practices like human trafficking, forced labour and sexual exploitation. Countless children are forced to become soldiers, work in sweat shops or are sold by desperate families. Women are brutalized and traded like commodities. Entire households and villages labour under debt bondage. For this reason, people must raise their voice and feel concerned about this scourge since countless victims are deprived of their liberty and dignity.
Haiti, where Child trafficking already constitutes a quandary to the country; annually 30,000 children are shipped to the Dominican Republic, following the earthquake many missing children have gone missing.
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