National Consultation on Women’s Human Rights and Elimination of All Forms of Violence Against Women and Girls in preparation

National Consultation on Women’s Human Rights and Elimination of All Forms of Violence Against Women and Girls in preparation for the 47^th Session of the Commission on the Status of Women.

Summary Report

(Version dated February 26, 2003)

This summary report presents the main conclusions and decisions arising out of the national consultation on women’s human rights and elimination of all forms of violence against women and girls, organized in preparation for the 47^th Session of the Commission on the Status of Women, by the Office on the Status of Women. The meeting was held on 24^th February 2003 at the Silver Lakes Conference Centre and was attended by 8 participants drawn from government departments, parliament, NGOs and the Commission for Gender Equality.
This report provides a summary of the themes and issues emerging from discussions and debates, key decisions taken and in annexure, a list of the participants and contact details.

THEMES AND ISSUES

The participants identified as a key aspect of trafficking of women the issue of prostitution and the discriminalisation of prostitution. The debate centred around the issue of "choice" exercised by sex workers as opposed to the situation in which women who were trafficked find themselves. In most cases women are forcibly moved from one country into another where they are exploited sexually. However the participants also raised the issue of cases where women are brought into a foreign country under false pretences of work opportunities and are then subjected to sexual exploitation. Women who are arrested for prostitution in the foreign country and found to be without legal permits in the country may be deported to the point of origin. The participants identified that the legislations in place were therefore not addressing the instances of trafficking arising in such situations. The meeting thus concluded that gaps exist in the current legislation on prostitution and this therefore impacts on the trafficking of women.
The issue of the definition of trafficking in general and particularly that relating to women and girls was identified as a contentious issue with regard to the parameters within which it is presently looked at. At the international level, the definition was identified as being too wide and the language used as being too ambiguous. This poses problems in terms of successfully prosecuting perpetrators of trafficking.
The area of witness protection was identified as an area of contention with regard to the protection of the victim of trafficking. Most national legislations provide protection for its own citizens and in the instance of trafficking of women, a victim in a foreign country may not have access to legal aid in that country. The participants raised the point that the trafficker, by virtue of citizenship, may actually be more likely to obtain legal aid in the country than the victim.
The participants noted that there is insufficient information with regard to the actual situation of trafficking in South Africa . The questions raised were:
Is South Africa a point of reception for international trafficking;
Is South Africa a point of origin for international trafficking; or
Is South Africa a point of transition in trafficking?
What is the situation with regard to internal trafficking, i.e. within South Africa itself.
1.7 The issue of recourse for victims of trafficking was identified as a problem because trafficking is regarded as an element of organized crime and the legislation pertaining to it is thus fragmented.

MAIN RECOMMENDATIONS

There is a need for a clear definition of trafficking - if defined too broadly it is difficult to prosecute or address occurrences.
Countries should have dedicated legislation addressing trafficking, paying specific attention to the matter of trafficking of women and children.
In the South African case, there is a need to understand the scope of trafficking and its different forms e.g.
Are we a receiving country for trafficking;
Are we a country of origin for trafficking; or
Are we a transit point?
Are there other forms of trafficking of women taking place – e.g. intra-country trafficking.
Key concerns include the discriminalisation of prostitution and the criminalisation of the consumers of the sex work.
The absence of dedicated legislation presents major obstacles. Most cases are addressed as organized crime issues and therefore, the special needs of women who are trafficked are not addressed.

LEGISLATION FRAMEWORK

South Africa signed the United Nations Convention against Transnational Organised Crime and the Protocol to prevent, Suppress and Punish Trafficking in Persons, especially Women and Children in December 2002. The Protocol supplements the United Nations Convention against Transnational Organised Crime.
Other relevant conventions and legislation include:-
The United Nation Convention on the Rights of the Child and its Protocol, which addresses trafficking of children.
However, as in most countries there are no dedicated services and measures addressing the protocol.
Article 6 on The Exploitation Of Women in the CEDAW document.
The Beijing Declaration and Platform for Action - Strategic Objective D.3 – Eliminate trafficking of women and assist victims of violence due to prostitution and trafficking.

THE CASE FOR A DEDICATED STRATEGY AND LEGISLATION ADDRESSING TRAFFICKING

Various pieces of legislation deal with aspects of trafficking. There is no single legislation dedicated to trafficking. The legislation currently dealing with the issues are administered by various departments, for example, Justice, SAPS, Home Affairs, etc.
The legislation is fragmented and there is no dedicated legislation addressing the issue of trafficking. Even though South Africa has signed the above international instruments addressing the trafficking of humans beings broadly and women and children in particular. The internal legislation which is used where cases of trafficking occur include, The Child Justice Bill, Sexual Offences Act, The crime of abduction, The Migration Bill, etc. At government implementation level the initiatives seem also not to be integrated, if they exist. These would be existing as a natural progression of implementation of the existing legislation. The same prevails at the level of NGOs.Although at this time some NGOs have raised the matter of trafficking in their campaigns and activities, currently none addresses the matter systematically or on an ongoing basis.

PROCESSES CURRENTLY IN PLACE

In terms of section 5(1) of the Act the Law Commission must from time to time draw up a programme in which the various matters which in its opinion require consideration are included in order of preference, and must submit such programmes to the Minister of Justice for approval.
In a memorandum dated 19 December 2002, which reached the Minister on 27 December 2002:
The Law Commission recommended to the Minister of Justice inclusion of an investigation into trafficking in persons with an "A" priority rating in the Commission’s programme.
The Minister approved the recommendation on 21 January 2003.
The Law Commission is therefore, currently investigating separate trafficking legislation to promote holistically for the prosecution of all forms of trafficking.

THE CASE FOR CORE MEASURES AND STRATEGY

The participants identified the following aspects as important for measures and strategies to be put into place for women and girls who have been trafficked:
Legal aid for the victim in any country.
Witness protection programme for the victim and the victim’s family members.

KEY DECISIONS

The participants agreed to constitute themselves as a Reference group that would feed into the Law Commission’s efforts at defining trafficking. The reference group will comprise civil organizations, the Gender Commission, government departments, parliament and NGOs. The issues that can be part of the mandate were identified as :-
Deciding on meeting dates
Identifying up-coming court cases and looking into the same.
The brief on the issue paper from the Law Commission with regard to the definition of trafficking.
Discussion documents on trafficking
Input into drafting a holistic legislation on trafficking, particularly with regards to women and girls.
The report is to be extended to those organizations and departments that were unable to be present and to the following identified organizations:
Department of Education
Detective services
CSVR
Department of Social Development
Department of Home Affairs
The Men’s Forum
WOWA
Men for Change
Department of Labour
SWEAT
SHEP
The participants requested the Office on the Status of women to put together a package which is to be made available to the participants of the reference group.