Thank you for giving us an opportunity to make a submission on the Children’s Bill as discussed by the Parliamentary Portfolio Committee on Social Development especially at this late stage.

Molo Songololo is a child rights organisation that has been in existence since 1979. Its primary functions are to lobby and advocate for the rights of children, for the protection, safety and care of children and to place children’s interests at the centre of the organisation’s work.

We will begin by stating in principle that we commend the legislator for the chapter 19 of the Children’s Bill on trafficking in children and its attempts to provide provisions that criminalise trafficking in children.

Recognising the international obligations the Republic of South Africa has agreed to fulfil;

Bearing in mind the importance of the Children’s Bill as the single most important law with regards to children;

Noting that until such time as South Africa has comprehensive anti –trafficking legislation the provisions of chapter 19 in the final Children’s Act will regulate and provide a framework for legal matters with regard to trafficking in children;

Being mindful that Section 28(2) of the Constitution of the Republic of South Africa has a ground breaking provision regarding children’s best interests;

The simple yet alarming reality that the present articles 280 to 284 of the Children’s Bill as submitted to the Portfolio Committee for Social Development are not sufficient has to be acknowledged.

Chapter 19 of the Children’s Bill "Trafficking in Children" is not able to provide for real or practical solutions neither when it comes to preventing a child from being trafficked, nor for protecting such a child while trying to escape his/her situation nor with regard to psycho-social or physical recovery or reintegration. The provisions also do not adequately deal with the issue of criminalising trafficking in children.

First of all it has to be recognised that the United Nations Protocol to Prevent Suppress and Punish Trafficking in Persons, Especially Women and Children ratified by the Republic of South Africa on 20 February 2004 is not a self-executing international instrument. Its articles need to be transferred and concretised in domestic law to entitle the people who have undergone trafficking experiences to justiciable rights. This protocol calls upon a national legislator to make new regulations. To give it force of law does barely change anything in the life of a trafficked child. It is hardly more than a corroboration of the ratification of the Protocol and will not enable a child to receive what she/he needs nor a judge to decide on whether the trafficked person has a right to support. The Children’s Bill has to give clear orders to the government to do prevention, protection, recovery and reintegration work as well as to criminalise the perpetrators in the area of Trafficking in Children in order to fulfil the obligations of articles 5, 6 and 9 of the Trafficking Protocol, but also to give effect to the Convention on the Rights of the Child ratified by the Republic of South Africa on 16 June 1995 and its Optional Protocol on the Sale of Children, Child Prostitution and Child Pornography ratified on 30 June 2003.

Chapter 19 does not deal with the issue of prevention of trafficking in persons. We strongly recommend that the Bill should make provision for this aspect. Consequently article 144, "Purposes of prevention and early intervention" might be amended and the following subsection added:

144.(1) Prevention and early intervention services or programmes must focus on:

In order to protect child victims of trafficking we suggest, that article 284, "Victims of Trafficking found in the Republic" be complemented with the following sub-sections:

284.(1) Any child who is the victim of trafficking and who is found under circumstances which indicate that he or she is a child contemplated in section 150

Furthermore to protect South African children in the same way the following section should be added:

Otherwise the title of the article should be changed to: Victims of Trafficking found in or sent back to the Republic.

As Section 1(a) of article 284, "Victims of child trafficking found in Republic" refers to article 150 of chapter 10 "child in need of care and protection" we recommend that a list of rights of the victims be included in article 156. "Orders when a child is found to be in need of care and protection". We suggest amendments to subsection (i) of section (1) and recommend the following wording:

156. If a Children’s Court finds that a child is in need of care and protection the court may make any order which is in the best interest of the child, which may be or include an order -

As a Text supplementing the United Nations Convention against Transnational Organised Crime, the Protocol to Prevent, Suppress and Punish Trafficking in Persons applies to Trans-national cases of Trafficking in Persons that is perpetrated by Organised Crime Groups. However the definition of trafficking in persons as provided for in Article 3 of the Protocol does not restrict the commission of the crime to cross-border activities. In addition the Convention against Trans-national Organised Crime provides in Article 34 that governments should consider legislation that prohibits in-country trafficking in persons. It should also be borne in mind that foreign victims of trafficking in persons, including children are also trafficked inside a country. It is recognised internationally that trafficking in persons does not only occur trans-nationally but also in-country. See for instance Molo Songololo’s 2000 report; "The Trafficking of Children for the Purpose of Sexual Exploitation". Trafficking is not only Trans-national. A number of children have been brought from Kwa-Zulu-Natal and the Eastern Cape to the metropolitan areas of Gauteng and the Western Cape.

In order give effect to the provisions of the Protocol in respect of in-country child victims of trafficking in persons we recommend that article 281,"UN Protocol to prevent Trafficking in Persons to have force of law" should be supplemented with the following:

281.(2) The provisions of the UN Protocol to Prevent Trafficking in Persons where applicable shall also apply to trafficking in children that occur within the borders of the Republic and also apply to in-country trafficking activities and offences related to trafficking in children.

We accept that the prosecution of a perpetrator is not the considered aim and function of the Children’s Bill. Still, Trafficking in Persons, especially children is a serious crime, which violates children’s right to safety and freedom from harm, exploitation, abuse and neglect and is contrary to provisions in Section 28(1) of the Constitution of the Republic of South (1996). We therefore call for an amendment of Article 283, "Trafficking in children prohibited" where a new section 2 should be added. We recommend the following wording:

We acknowledge that the time remaining to amend the present draft of the Children’s Bill, Section 75 is very limited. However our recommendations are restricted to 4 modifications in articles 281, 283 and 284, the amendments concerning prevention and recovery having to be made in Section 76. We hope that these limited recommendations will receive favorable consideration.

We thank the Portfolio Committee on Social Development and hope that our recommendations will be given due consideration and incorporated into the Children’s Bill to address the needs of child victims of trafficking in persons and protect the rights of South African as well non-South African children alike.

Thank you for giving us an opportunity to make a submission on the Children’s Bill as discussed by the Parliamentary Portfolio Committee on Social Development especially at this late stage.

Molo Songololo is a child rights organisation that has been in existence since 1979. Its primary functions are to lobby and advocate for the rights of children, for the protection, safety and care of children and to place children’s interests at the centre of the organisation’s work.

We will begin by stating in principle that we commend the legislator for the chapter 18 of the Children’s Bill on trafficking in children and its attempts to provide provisions that criminalise trafficking in children.

Regrettably at present no provisions are included on restorative justice and compensation in favour of children victims of trafficking. Due to their experience of being trafficked these children are deprived of most fundamental elements for their physical, psychological and social well being and development and are due to their background of poverty not able to seek the support needed. Yet, it is clearly not their situation of poverty which sanctions our claim for a system of compensation but the situation of coming out of an experience as victims of trafficking that generates their needs for:

Medical support;

Emotional support;

Educational support;

An accurate place of safety with regards to their special situation;

Skills development;

Compensation for lost wages;

Compensation for travel expenses:

Etc.

Moreover, please note that compensation is a recognized civil right not a discretionary principle which is listed as a state obligation in article 6, paragraph 6 of the UN Protocol to Prevent Trafficking in Persons to which chapter 18 on trafficking in children of the children’s bill intends to give force of law.

Therefore Molo Songololo can only renew its claims made in its Report on The Trafficking of Children for Purpose of sexual exploitation: "Court orders should make provision for the award of compensation to victims of trafficking. With respect to restorative justice this report recommends that where the Assets Forfeiture Unit has confiscated the assets of traffickers and brothel owners, such assets should be disbursed in payment of all court orders for compensation, restitution and recovery due to the trafficked person."

Thus we repeat the suggestion made by the Task Team on Human Trafficking in its Joint Submission on the Children’s Bill of 27^th July 2004 and recommend that the following clause be inserted as subsection 5 of section 284 Trafficking in children prohibited:

We acknowledge that the time remaining to amend the present draft of the Children’s Bill, Section 75 is very limited. However International Instruments, case law and the experience of child victims of trafficking urge in favor of a system of compensation and restorative justice.

We thank the Portfolio Committee on Social Development and hope that our recommendations will be given due consideration and incorporated into the Children’s Bill to address the needs of child victims of trafficking in persons and protect the rights of South African as well non-South African children alike.