Dedicated to Nigeria's socio-political issues
October 3, 2007 - December 2, 2007
THE RIGHTS OF CHILD DOMESTICS AS VICTIMS OF HUMAN RIGHTS VIOLATION AND TRAFFICKING IN NIGERIA.
DR. MUHAMMED TAWFIQ LADAN
HEAD OF DEPARTMENT OF PUBLIC LAW,
FACULTY OF LAW, A.B.U., ZARIA, NIGERIA.
A PAPER PRESENTED AT A TWO-DAY WORKSHOP FOR JUDGES, MAGISTRATES AND PROSECUTORS.
ORGANISED BY THE ANTI-TRAFFICKING
AGENCY (NAPTIP) ABUJA IN COLLABORATION WITH UNICEF, NIGERIA.
DATE:- 21-22 SEPTEMBER, 2005
VENUE:- COUNTRY-HOME HOTEL,
JOS, PLATEAU STATE.
In April 2001, the Nigerian registered freighter the MV Etireno had set out from Cotonou, Benin republic, Just before Easter and was reported to have 250 children heading into slave labour1. The children, according to press reports, were being sold into the labour markets of West Africa, mostly into child domestic service but also into other work on cocoa and cotton farms. Since the freighter was at sea, there was no way to verify the story. And, when the boat finally docked and its human cargo was found to comprise 139 adults and just a few children accompanying them, there was speculation that the ship’s captain must have thrown the ‘slave’ children to the sharks.
The newspapers story may have been over-dramatized but the reality is not much less chilling. Every year hundreds of West African Children are trafficked into various forms of labour, sometimes because their parents genuinely believe they will have a chance to be educated by a more affluent family, sometimes because their parents cannot afford to raise them and so place them with extended family in the hope they will have a better life there.
Sometimes the children place in this way are looked after and helped to attend school. More often than not, however, they are seen as a family servant, condemned to work long hours cooking, cleaning, and looking after children and old people in the family. They may have to work in the family business too, and are often given inadequate food, poor sleeping quarters, and no or little pay. They may be beaten when they are tired and slow or unable to accomplish task that are too hard or heavy. In some cases girl-children may be sexually abused and in all cases they are vulnerable to sexual harassment and both physical and psychological violence2.
It is against this background that this paper seeks to realize the following objectives:-
To provide conceptual clarification of selected key terms:- child abuse, child labour, child trafficking, victims of crime and human rights violation;
To examine the nature and scope of child domestic service or labour;
To determine why, how and when child domestic service becomes a human rights violation, and
To identify the role of judges and prosecutors in the protection of victim’s rights;
To conclude with some viable options for Nigeria.
1. Conceptual Clarification of Key Terms
This part of the paper seeks to provide conceptual clarification of the following key terms:-
1.1 Child abuse3
Child abuse has emerged as one of the serious social problems that has engaged the attention of Scholars, professional social workers, law enforcement officials, legislators, policy-makers and the public over the past three decades. Different people are concerned with the problem of child abuse and neglect for various reasons. Many people are concerned about child abuse because they see it as a violation of the rights of children, as well as a hindrance to their welfare. Others are concerned about the problem because of the purported correlation between child abuse and aggressive/violent behaviour or crimes. These latter individuals are anxious that children who are either abuse or neglected today would become tomorrow’s murderers and perpetrators of other crimes of violence, if they survive. These disparate concerns which have engendered a proliferation of legislation on the control of child abuse, and encouraged child abuse research can only be described as the beginning of efforts to understand, prevent and control child abuse.
Child abuse and neglect convey different meanings to different persons depending on their regional, environmental and cultural backgrounds. The definition and interpretation of what constitutes abuse and neglect must, therefore, take into consideration these cultural perspectives or else, the proponents of child abuse may find themselves prescribing therapy for situations which the recipients do not identify as a need.
Data on child abuse and neglect in Nigeria is scanty and unreliable. Consequently, estimates of the incidence and prevalence rates of child abuse in the country are non-existent. The police statistics in this area are unreliable, partly because of under-reporting, poor classification and lack of institutional attention to the development of a reliable statistical system in the country.
Society be held culpable for cases of child abuse and neglect. Besides the society, however, we can locate other agents that are likely to engage in child abuse. They include parents, guardians, relations, teachers, custodial officers, older siblings, older students or inmates of institutions, and so on. It also means that children are mostly likely to be abused at home, school, and in boarding facilities. In developing measures for preventing and controlling child abuse, it is important that the various agents and contexts of child abuse are recognized in order to develop appropriate strategies.
Over the past three decades, several causes of child abuse by parents have been identified. They include:- lack of failure of mother-child bonding; low self-esteem; depression/aggression, emotional arousal and distress, and withdrawal; inter-generational transmission of child abuse/violence, that is, people who were abused as children grow up to become abusive parents; stress, that is, parents become more abusive when they are stressed; low educational social isolation, that is, a sparse network of social support from relatives, friends, and so on; and cultural legitimation or accommodation of injurious violence against the child.
These factors relate to the parents. It has also been observed that children who are disabled or manifest behavioural problems may be susceptible to abuse. These factors are not mutually exclusive. Indeed, what they point to is that parents who experience emotional, cultural, family, social and economic deprivations are likely to abuse their children by resorting to projection, displacement and scapegoating. Therefore, the prevention and control of child abuse and neglect is tied to the fundamental cultural, political and economic structures and policy-making in society.
There are several dimensions of child abuse or maltreatment. Generally, the problem of child abuse can be considered under the following headings:-
a) physical abuse; verbal and emotional abuse; (b) child labour; (c) sexual abuse; and (d) child-neglect in the economic, health, educational, affection and emotional contexts.
Of these components, physical abuse, child labour and sexual abuse are more amenable to objective analysis. The analysis here, therefore, pertain to these three dimensions of child abuse.
The correction and discipline of children by beating, hitting and ridicule are widely practised and accepted in Nigerian cultures. In determining physical abuse, therefore, it is necessary to determine the cultural or normative threshold of abuse; that is the point at which legitimate correction and discipline end, and abuse begins. For though, theoretically, objective criteria for determining whether or not corporal punishment is injurious to children may be established, the application of such criteria may be affected by the norms of a society. This is because, child abuse is a community-defined phenomenon which must be viewed in the context of community norms and standards governing the appropriate conduct of adults in their interactions with their own and others’ children. Therefore, the analysis and explanation of child abuse must be sensitive to the normative aspect of the definition of the problem, which varies across cultures, professions and researches.
Child labour is viewed in some societies as a form of child abuse. However, this view remains controversial. In many societies, including Nigeria, some types of child labour are considered as part of the training required by the child for adult roles and vocation. Besides, child labour is considered as a necessary means of imparting the virtues of hardwork and dignity of labour to children. Consequently, it is important that a discussion of the relationship between child labour and child abuse should identify and apply empirical criteria to determine whether or not particular types of labour are injurious to the health, social and physical well-being and development of the child.
Child labour, will become an abuse if it is intensive, energy-sapping, exploitative, oppressive, and injurious to the health, educational, sexual and physical development and welfare of the child. To determine whether child labour becomes child abuse, therefore, the following factors must be considered:- age of the child; nature of the work; duration of engagement and work; environment in which the work is undertaken (location, hygiene and safety of work place); energy-input requirement; impact on the education, and other developmental needs of the child, impact on his life-chances, that is life-time socio-economic and health implications.
Child labourers may suffer health, moral, physical, psychological and sexual hazards. For example, child hawkers in Nigeria are vulnerable to sexual molestation, vehicular accidents, and enlistment into delinquent values and careers, including prostitution.
Child sexual abuse, unlike child labour, is generally condemned in most cultures. The severity of child sexual abuse has generally been considered relative to the following criteria:- age of the child victim relative to the abuser; relationship between the child victim and the abuser; the extent of violence, threat, manipulation, inducement employed by the abuser; frequency of abuse; and injury associated with the abuse.
Sexual abuse of the child raises health, bio-psychological, developmental and moral concerns. Despite the widespread academic and professional concern about child sexual abuse, the definition of the problem remains controversial.
Researchers have discovered that children who are sexually abused suffer long-term physical, psychological, and social traumas. Sexually abused children, according to the literature, manifest a range of behaviorual disorders and performance deficits such as:- development of new fears, such as fears of sleeping alone, dark places, strangers, or particular adult; changes in usual behavioural patterns, such as loss of appetite, bedwetting, increased irritability, sleep disturbances, or sudden worry about keeping clean; overt expression of sexuality, compulsive masturbation, excessive interest in sex, or seductive behaviour with peers and adults; changes in school performance, such as not being able to concentrate, sudden decline in performance, hints to teachers about sexual activity or fears, or refusal to participate in previously enjoyed activities; and strained relationships with parents, in which the child talks of running.
In view of the wide ranging conditions stated above, it is cautioned that though these behaviour may be indicative of sexual abuse, no pattern of behaviour is necessary or sufficient evidence per se without additional verification from the child or other evidential sources.
Sexual relations within a marriage are not generally considered to amount to sexual abuse in Nigeria, so long as the bride has attained puberty. It is doubtful whether the mere-fact of marriage eliminates the psychological trauma of engaging a developmentally immature child in sexual activity. There is no doubt, however, that early sexual relations are physically harmful to the girl child as witnessed by the phenomenon of Vesico Vaginal Fistula (VVF) and child marriage also gives rise to other deleterious consequences such as the disruption of education.
In conclusion, three dimensions of child abuse have been examined. They are child abuse, child labour, and child sexual abuse.
In order to control the incidence of child abuse in the country, there is a need to address socio-economic conditions under which children are reared. It has been found that stressful life experiences such as poverty, unemployment, family dis-organisation, are important causes of child-abuse. Laws may be enacted to assist in defining and enforcing appropriate behaviour toward children, but effective social and welfare programmes will be needed to induce such behaviour from parents and caregivers. Furthermore, there is a need to embark on public enlightenment on the nature and consequences of child abuse.
1.3 Nature and Scope of Child Domestic Service or Labour
As far as can be ascertained, domestic employment did not constitute wage employment until during the colonial period (Oloko, 1992, 1995)5. In the colonial times, British households usually included adult domestics such as stewards, cooks, drivers and so on, as well as young domestics known as ‘small boys’ and ‘baby nurses’. Baby nurses took care of British officers’ children. In the colonial era, only very few elite Nigerians who were concentrated in the then capital, Lagos, emulated the tradition started by the British to employ adults as well as young domestics. Those who did so were highly educated and westernized. They emulated British aristocratic life and lived the concept of ‘noblesse oblige’. Most of them were repatriates from Sierra Leone, Brazil and Cuba. As put by a historian of Lagos society:-
The educated elite, both black and white could be considered as members of the same social group. They lived like Victorian gentlemen, their entertainment consisting of numerous ‘conversazienes’, ‘soirees’, ‘levess’, at ‘home’, ‘tea fights’ and concerts of the works of Bach, Beethoven Handel and so on. All the elite seemed to lack was snow”. (Cole, 1975, p. 43)6
Of course, such high level of living needed the service of domestics. Even as late as the 1930s and 1940s, informants reported that it was a privilege to serve as domestics in elite homes in view of the relatively high wages and opportunity to imbibe a Western life style which were socially esteemed.
The remainder of the elites who could not afford domestics obtained the assistance of their older and younger relatives. Up till the early 1950s most educated women who worked in structurally differentiated settings and therefore required assistance with respect to domestic chores and child care relied on the assistance of their adult and young relatives who also were remunerated in a system of reciprocity and did not involve a cash nexus. The young relatives were usually fostered by them.
The Role of Fostering
Fostering, defined as the assumption of rights and duties of parenthood by adults who are not the child’s natural parents without the latter surrendering their full rights, was prevalent in traditional society and was still a strong practice even in the early post colonial period. Since children were usually fostered to successful and prominent relatives and even non-relatives, foster-parents were educationally, and economically better placed to provide benefits to children. In exchange for providing domestic and sometimes economic assistance, the future prospects of children were ensured. Such benefits included provisions of primary and sometimes secondary education, some form of occupational training mostly in craftwork, provision of appropriate work-equipment and for girls, enhancement of marriage prospects.
The participation of children in domestic work was protected by expectations that foster children be treated like their own children. Ideally, good foster parents ensured that foster children were not palpably discriminated against in the household. In the average household, domestic work was equally shared among foster and natural children. Moreover, foster children were rarely discriminated against with respect to food, clothing, and leisure. The fostering institution was so successful that in some instances girls did not leave their foster parents before marriage neither did the boys depart until they were ready to set up their own workshops. As a matter of fact once a system of reciprocity was entered into the relationship endured, sometimes for more than one generation.
Unfortunately, the fostering institution has undergone much change, although, rural parents who give their children to middlemen who subsequently traffic them internally and externally, believe that they are still participating in the traditional and benign fostering arrangement.
Domestic Employment in the Present Day
Several factors in the recent decades militate against the ability of educated women to have their younger relatives provide them with domestic assistance. The Universal Primary Education Scheme (UPE) launched nationally in 1976 has made it difficult for educated women to obtain domestic assistance from their relatives who began to attend school in large numbers in some regions.
Moreover, educated women found it increasingly difficult to meet their own basic needs as well as the demands made by the extended family members who provided them with young relatives. Furthermore, educated women who desired the independence of the conjugal family began to realize that once reciprocal obligations were entered into between the nuclear and extended families, the former could not justify the claim to be an exclusively private and independent group (Oloko, 1992)7.
In view of the above factors, educated women who worked in structurally differentiated settings began to employ children from rural areas as young domestics especially from the 1970s. Other factors which necessitated the employment of young domestics include inadequacy of creches, large family size, the tendency of women to work when they have pre-school children; lack of mechanization in households, scarcity and costliness of time and effort saving commercial products, unavailability of specialized household-related services which are available to traditional women, the tendency of spouses not to be routinely involved with house-chores and the tendency for their own children to be preoccupied with homework assignments and remedial studies.
Present Work-Conditions of Young Domestics
The findings of a UNICEF supported survey of Children in Especially Difficult Circumstances (CEDC) in five towns namely Lagos, Oshogbo, Kaduna, Calabar and Bauchi in 1992 which included as one of the six sub-samples, domestics and their employers, indicated that young domestics were far from being in the priviledged position accorded to foster children as previously discussed.8 In addition to childcare and routine house chores some young domestics were found to double as street traders and shop minders. The foregoing finding was supported by another one from the employer sample, in which women including teachers, nurses, secretaries and office assistants indicated that their young domestics assisted them with their side employment.
The survey found that the specific volume of work which young domestics did depended on the size of the family they served, the number of domestics employed, the extent to which the employers children assisted them as well as the availability of labour-saving gadgets. Some of the findings of the survey are particularly worrisome. Firstly, about 37% of young domestics reported that they never had any work-free days except when it was absolutely necessary. The mentioned trend agreed with the findings from the employers sample. About 33% of employers reported that they gave young domestics time off only on a monthly basis whilst 54% indicated that they gave their employees work-free days on weekly basis and 15% gave it on a fortnightly basis. For young persons who worked an average of about 12 to 15 hours a day, the reported rest pauses were adjudged to be inadequate.
Secondly, the turnover rate among young domestics was found to be high. As high as 25% of female domestics interviewed reported that they left their first and second employment in less than 6 months, whilst 21% remained with the mentioned categories of employers for a duration of 6 to 12 months. The finding was congruent with that obtained from the employers sample in which only 35% of employers reported that they have ever had domestics who worked for them for one or more years. The high turnover rate among young domestics is attributable partly to work condition especially to the tendency for them to be overworked as well as factors associated with middlemen. About two-fifths of young domestics reported that they were brought to the cities by middlemen, who especially in Lagos and Kaduna, tended to abandon them to their fate except to collect part of their wages when these become due.
Apparently, middlemen deliberately destabilised young domestics from their employment for economic gains. They were reported to dream up heart-moving stories to justify premature departure of domestics whom they promptly contracted to unsuspecting new employers form whom they collected fresh transport allowance as though the domestics had just emerged from rural areas.
It is noteworthy from the perspective of future intervention programmes that the young domestics in five cities, originated form Abia, Akwa Ibom, Imo, Anambra and Oyo States although at least 15 other states were represented among states of origin of domestics. As it is to be expected, each city had a slightly different profile of the origin of domestics. For example, in Lagos, one third originated from Akwa Ibom, Anambra and Imo whilst another one third originated from Oyo and Ondo. In Kaduna, half of the domestics studied were from Abia while the rest came from others states.
Thirdly, the income of young domestics was paltry. The finding that young domestics were paid paltry sums is of major concern in view of the fact that employers complained that many domestics tended to steal. Young domestics, who perceived their future as bleak, erroneously attempted to accumulate property for the future by stealing from their employers in the hope that when they leave a particular employment they would at least have some personal belongings. Perhaps, if employers addressed the future prospects of their servants as was done in the old fostering arrangement, domestics would not have felt the need to help themselves to some of their belongings. Overworked, sometimes abused and exploited, young domestics perceived themselves to be in a class warfare against their employers whom they perceived to have surplus of alluring goods and consequently should not mind that they were losing some. Rather than earn them benefits, the habit of stealing lead to domestic being stigmatized and persecuted.
Fourthly, young domestics were more subject to punishment in their jobs than in their homes. Even though the children experienced physical beating and verbal abuse from their parents, the availability of some mechanisms in traditional settings regulated the severity of these modes of punishment, so that they were not as intense as those administered by their employers.
Fifthly, young domestics were educationally disadvantaged vis-à-vis children of their employers. All the children of the employers, except 6.9% of them, who were aged 1 to 3 years old, were attending schools at various levels. Children aged 4 to 5 years who constituted 18.8% of children of employers were in pre-primary institutions.
Most of the elite children – 31.9% - were in secondary schools, whilst 14.8% were in tertiary institutions. In view of the quality of the schools which elite children were attending, it is expected that they will manifest prolonged schooling and thereby maintain the socio-economic status of their parents in the future. Most unfortunately young domestics were rarely sent to school by their employers who recognised the value of education enough to send their own children to school.
Apart from young domestics being worse off than their fostered counterparts who did similar work in the past they were also found to experience greater relative deprivation compared to other groups of working children.
1.4 Child Domestic Service as a Human Rights Violation and Trafficking.
Generally from large poor rural families, child domestics are invisible child labourers as they are often confined to their employer’s house and have very little contact with the outside world. At the beck and call of their employers on a 24 hours basis, these children are highly vulnerable to abuse and exploitation.9
Child domestics toil mostly for working and middle-class families. Although this is a less inherently dangerous form of child labour the conditions under which it is generally performed lead to its classification as a worst form of child labour.10
The working environment is often characterized by long periods of isolation and long working hours, leading to physical and psychological trauma. It is estimated that many children in the child domestic service sector work between 14 to 18 hours a day. It is also true that many are not properly paid, as some employers charge for the food and accommodation given to the children. Sometimes payment is only in kind (e.g second hand clothes). Many girls aged between the age of 9 and 15 who migrate largely from rural to urban area are employed as domestic servants. These girls also risk physical and sexual abuse by employers or their family members.11
Working largely in the sphere of private households, domestic workers experience a degree of vulnerability that is unparalleled to that of other workers. Domestic work per se is of course not forced labour. But it can degenerate into forced labour when debt bondage or trafficking is involved or when the worker is physically restrained form leaving the employer’s home or has his or her identity papers withheld. The worst situations involve violence, sometimes extending to rape and/or torture12.
Even under less dramatic circumstances, working in forced labour circumstances can be particularly harmful, as when, primarily in developing countries, most often girls and sometimes boys spend long days toiling in private households instead of attending School. This phenomenon can be most common in urban areas, with children been lured from poor rural areas, as reported in Benin Republic (1000,000 children), Haiti (250,000 children), and Nepal (83,000 children).13
Once on the job domestic workers tend to work in isolation, creating ample opportunity for disregarding labour legislation, if it applies to them in the first place. Indeed domestic workers suffer prejudice on account of their frequent exclusion from the coverage of labour legislation (in developed and developing countries alike), and the obstacles they face in exercising freedom of association. This combination makes it all the more difficult for them to extract themselves from situations involving forced or compulsory labour. Some countries, such as Switzerland, have adopted special legislation on administrative measures intended to provide proper contracts of employment for domestic workers as a means of avoiding such a fate.14
Under the ILO Worst Forms of Child Labour Convention, 1999 (No. 182), the trafficking of children is considered a worst form of child labour. But the situation of the working children of West Africa may also be considered a worst form even if the children are not trafficked but are:- under the minimum legal age for that type of work, as defined by national legislation in accordance with international standards; in work that endangers their physical, mental or moral well-being, either because of the nature of the work or because of the conditions under which it is performed; or in a situation that can be defined as slavery or bonded labour15.
Of the more than two hundred million children working in the world, it is impossible to know how many are exploited in domestic service. The ILO estimates that more girl-children under 16 years are in domestic service than in any other category of work or child labour.16 Because child domestic service takes place in a private sphere or home and is therefore ‘hidden’, there is no accurate breakdown of the figures17.
However child domestic labour is a long established tradition in West Africa. Children are trafficked not only internally but between Benin, Burkina Faso, Cameroon, Coted’ Ivoire, Guinea, Ghana, Mali, Niger, Nigeria and Togo18.
While boys in Africa are sometimes trafficked to work as house boys and on plantations and in other exploitative labour, it is clearly girls who are most vulnerable to trafficking, not only into child domestics service but also into sexual exploitation.
According to a recent UNICEF Fact sheet on child Trafficking in Nigeria,19 the volume of trafficking reveals:-
About eight million Nigerian Children are engaged in exploitative child labour, putting them at great risk of human trafficking; as 43% of them are based in the southern border towns of Calabar, Port Harcourt and Owerri.
Approximately 19% of School children work after school in exploitative and dangerous environments.
It is estimated that 80% of children trafficked to Italy are from Africa and 60% of these are Nigerians.
Boys are mostly trafficked from the south eastern part: Imo, Abia and Akwa-Ibom States into Gabon, Equitorial Gunea and Congo, while those from Kwara move to Togo and as far as Mali to work on the plantations.
Further, in terms of types of trafficking, the fact sheet indicates that children are trafficked both internally and externally. Internal child trafficking occurs with movement from state to state, originating from fostering and extended family systems, coupled with inability of the child to trace family members. Middlemen and women cheat employers by receiving money in advance but do not allow the children to settle in one family or employment. Payment for the children’s services often never reaches the poor parents.20
Furthermore, major factors responsible for external trafficking of children to Mali, Gabon, Sudan, Italy and Saudi Arabia include, widespread poverty, unemployment, illiteracy and poor standard of living high School drop out rates, weakened extended family safety net, and limited capacity of law enforcement agencies, making the borders very porous in terms of effective monitoring, reporting and interception of cases.21
Child domestic service in Nigeria today becomes violative of children’s rights if it is deprivative of the rights of the child to be given protection and care necessary for his/her well-being; deprivative of the rights of the child to survival and development, to freedom of movement and from discrimination; deprivative of the family union, to human dignity, to leisure and recreation, to parental care, protection and maintenance, to free, compulsory and universal primary education; etc, as provided by sections 2-15 of the Child Rights Act, 2003.22
Further, child domestic service becomes a human rights violation issue in Nigeria when it is in contravention of:- Section 28 of the Child’s rights Act, 2003, which prohibits any child forced or exploitative labour, including employment of a child as a domestic help outside his or her own home or family environment.23
Furthermore, section 30 of the Child’s Rights Act prohibits the buying, selling hiring or otherwise dealing in children for the purpose of hawking or begging for alms or prostitution, or domestic or sexual labour, unlawful or immoral purpose, slavery, trafficking, debt bondage, forced or compulsory labour or for the purpose of depriving the child of the opportunity to attend and remain in school as provided for under the compulsory, free Universal Basic Education Act.24
Protecting Domestic Workers
Migrants working in domestic service, many of whom are children and women, are especially at risk of becoming victims of forced labour because domestic service occurs mostly in the informal sector and in the private sphere. Therefore it tends to remain outside the scope of regulation, monitoring and inspection. To avoid human rights abuses in this sector, ‘domestic workers must be covered by the labour laws in the countries of destination. This means that domestic work as paid employment in the “informal sector” must be taken out of its currently private, individual realm and regulated publicly. Currently, domestic workers are not covered under the labour laws in many countries.25
Children are particularly vulnerable to exploitation in domestic service. Some children may be subjected to the worst forms of child domestic Labour as a result of trafficking and/or debt bondage. They may be sexually abused or exploited, suffer practices similar to slavery or be forced to undertake hazardous works.26 Hence all worst forms of child domestic labour are unacceptable and must be eliminated.
1.5 The meaning of Victims of Crime and Abuse of Power
The UN Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power (otherwise known as Victims Declaration)27 defines as “Victims of Crime:-
“Persons who, individually or collectively, have suffered harm, including physical or mental injury, emotional suffering, economic loss or substantial impairment of their fundamental rights, through acts of omissions that are in violation of criminal laws operative within Member States, including those laws proscribing criminal abuse of power.”28
In Article 18 of the Victims Declaration, a definition of “Victims of abuse of power” is given:-
Persons who, individually or collectively, have suffered harm, including physical or mental injury, emotional suffering, economic loss or substantial impairment of their fundamental rights, through acts or omissions that do not yet constitute violations of national criminal laws but of internationally recognized norms relating to human rights.
The Declaration further states that a person may be considered a victim regardless of whether the perpetrator is identified, apprehended, prosecuted or convicted and regardless of the relationship between the perpetrator and the victim.29
The notion of victim is subsequently extended to the immediate family or dependants of the victim, as well as to persons who suffered harm intervening on the victim’s behalf.30
The victims Declaration does not distinguish between male and female victims, nor does it address the specific vulnerabilities and needs of female victims of crime and abuse of power.
1.6 Defining “Violations of Human Rights”
A right is an entitlement. It is a claim which one person can bring against another to the extent that by exercising that right, he or she is not preventing someone else from exercising theirs.31 “Human rights” are legal entitlements which every person, as a human being possesses.32 They are universal and belong to everyone, rich or poor, male or female.33 Such rights may be violated but they can never be taken away.
Human rights are legal rights because they are part of the various international legal instruments which guarantee civil, political, economic, social, cultural, environmental and developmental rights and which provide for redress should such rights be violated.34 It is also important to note that human rights are, in addition, protected by the constitutions and domestic laws of most countries of the world, Nigeria inclusive.35
In principle, there are two ways to address the issue of violations of human rights. From the victim’s standpoint, the Declaration of Basic Principles of justice for Victims of Crime and abuse of power proposes two definitions for such violations. The first characterizes them as “a violation of criminal law operative within Member States, including those laws proscribing criminal abuse of power”.36 Central to such violations is the individual or collective harm and suffering caused to persons, including physical or mental injury, emotional suffering, economic loss or substantial impairment of their fundamental rights, through acts or omissions that can be imputed to the State. The second definition concerns those “acts and omission (imputable to the State) that do not constitute violations of national criminal laws but of internationally recognised norms relating to human rights.”37
The word “recognised” must be understood to refer to norms contained in human rights treaties, norms that form part of international customary law, or norms that form part of principles of law as recognised by civilised nations.
1.7 Defining “Trafficking” as a crime and a human rights violation.
Article 3 (a) of the UN Protocol to prevent, suppress and punish trafficking in persons, particularly women and children,38 contains three separate elements in its final definition of “Trafficking in Persons’ namely:-
1. An action, consisting of:- Recruitment, transportation, transfer, harboring or receipt of persons;
2. By means of: Threat or use of force or other forms of coercion, abduction, fraud, deception, abuse of power or position of vulnerability, giving or receiving payments or benefits to achieve consent of a person having control over another;
3. For the purpose of: Exploitation (including, at a minimum, the exploitation of the prostitution of others, or other forms of sexual exploitation, forced labour or services, slavery or practices similar to slavery, servitude, or the removal of organs).
All three elements must be present for the protocol39 to become operational within a given fact- situation. The only exception is for children for whom the requirements relating to means are waived40.
In its final version, the protocol does not define the terms slavery, forced labour, practices similar to slavery, or servitude. In relation to the first three of these, it may be assumed that accepted definitions contained in other international legal instruments will be applicable.41
The concept of servitude has not been so defined42 and the final text of the protocol inexplicably omits a definition negotiated by the Ad-Hoc Committee and included in the draft43 right up to October 2000. A proposal to include organ removal as an end purposes of trafficking was made very late in the negotiations44 and survived despite rather curious objections that the protocol was dealing with trafficking in persons, not organs.
The UN Anti-Trafficking Protocol (otherwise known as the Palermo Protocol), with its definition of trafficking, considered above, provides useful guidance for law reform and the CRIMINALIZATION of this practice as part of state Parties’ obligations thereunder.
TABLE ON STATUS OF RATIFICATION OR SIGNATURE BY NIGERIA OF INTERNATIONAL AND REGIONAL LEGAL INSTRUMENTS RELEVANT TO WOMEN AND CHILDREN’S RIGHTS.
It is evident from the above table that Nigeria is yet to ratify the two optional protocols to the CRC signed since 2000. It means that they are not legally binding on Nigeria, even though the protocols appear quite significant for a holistic protection of children in both peace and armed conflict situations.
Similarly, Nigeria is yet to sign and ratify the following instruments:-
1. Convention for the suppression of the traffic in persons and of the exploitation of the prostitution of others (1949/51)
2. Convention on the Nationality of married Women (1957/58).
3. Convention on consent to marriage, minimum age for marriage and registration of marriages (1962/64).
4. Convention on Maternity Protection, revised (1952).
The above instruments seek to promote universal respect for, observance of, human rights and fundamental freedoms for all without distinction as to sex. They further seek to protect the girl child and women from exploitative and discriminatory practice, policies and customs.
1.7.1 “Trafficking” as a crime punishable in Nigeria.
In accordance with the useful guidance for criminalisation of trafficking in persons provided by the UN anti-trafficking protocol, the Nigerian trafficking in persons (Prohibition) Law Enforcement and Administration Act No. 24 of 2003, adopted the Protocol’s definition and the three separate elements with a slight modification. Hence under section 50 paragraph 9 of the Act45, the term “Trafficking” includes”:-
1. All acts and attempted acts involved in the recruitment, transportation within or across Nigerian borders, purchases, sale, transfer, receipt or harboring of a person;
2. By means of: deception, coercion or debt bondage;
3. For the purpose of:- Placing or holding the person whether for or not in involuntary servitude (domestic, sexual or reproductive) in force or bonded labour, or in slavery-like conditions.
Further, under sections 11-32, 34, 44 and 47 of the anti-trafficking Act, the following offences and punishments are prescribed respectively:-
i. Exportation of persons out of Nigeria and importation of persons in to Nigeria
Punishment: Liable on Conviction to imprisonment for life.
ii. Procurement of any person for illicit intercourse with another person.
Punishment: Liable on conviction to imprisonment for 10 years without option of fine.
iii. Causing or encouraging the seduction or prostitution of any person under eighteen years.
Punishment: Liable on conviction to imprisonment for 10 years.
iv. Procurement of any person under eighteen years to have unlawful carnal knowledge with any other person either in Nigeria or outside Nigeria.
Punishment: Liable on conviction to 10 years imprisonment.
v. Procurement of any person for prostitution, pornography and use in armed conflict
Punishment: Liable on conviction to imprisonment for 14 years without an option of fine.
vi. Any person who promotes foreign travel, which promotes prostitution.
Punishment: Liable on conviction to imprisonment for 10 years without an option of fine
vii. a) Any person who conspires with another to induce any person under the age of 18 years by means of any false pretence or other fraudulent means, permit any man to have unlawful carnal knowledge of such person.
Punishment: Liable on conviction to imprisonment for 5 years.
b) any person who detains a person under the age of 18 years in any premises for the purposes of being unlawfully carnally known by any man.
Punishment: Liable on conviction to imprisonment for 10 years.
viii. Procuring the defilement of any person under 18 yeas by threats, fraud or administering drugs.
Punishment: Liable on conviction to 10 years or a fine not exceeding
ix. (a) Kidnapping from Guardianship.
Punishment: Liable on conviction to imprisonment for 14 years without an option of fine.
(b) Compel by deceitful means.
Punishment: Imprisonment for 10 years or a fine not exceeding N200,000.00
(c) Confines or detains another person in any place against his will.
Punishment: Imprisonment for 5 years or a fine of N100,000.00 or both.
(d) Unlawfully takes an unmarried person out of the custody or protection of the parents.
Punishment: Imprisonment for 10 years without option of fine.
x. Kidnapping and abducting in order to commit culpable homicide, body laundering.
Punishment: Liable on conviction to imprisonment for life.
xi. Buying and selling a person for a purpose.
Punishment: Liable on conviction to imprisonment for 14 years without option of a fine.
xii. Unlawful forced labour outside Nigeria.
Punishment: Liable on conviction to imprisonment for 5 years or to a fine not exceeding N100,000.00
xiii. Traffic in slaves.
Punishment: Liable on conviction to imprisonment for life.
xiv. Slave dealing.
Punishment: Liable on conviction to imprisonment for life.
xv. Where a person is convicted abroad for offences relating to trafficking in person.
Punishment: Liable on conviction to imprisonment not exceeding 2 years and forfeiture of assets to the federal government.
xvi. Seduction or prostitution of persons under the age of 18 years by an alien.
Punishment: Liable on conviction to deportation after serving the term of imprisonment.
xvii. Attempt to commit any of the offences under the Act.
Punishment: Shall be liable on conviction to 12 months imprisonment or to a fine of N50,000.00 or both.
xviii. (1) An offence under this Act committed by body corporate on the instigation, connivance of or attributable to any neglect on the part of the Secretary of the body corporate, director or manager.
Punishment: Shall be liable on conviction to 3 years imprisonment or to a fine of N200,000.00 or both
(2) A body corporate convicted under this act.
Punishment: Liable to a fine of N2 million in addition to winding up of the company and forfeiture of its assets and properties to the Victims of Trafficking Trust Funds.
xix. (1) Commercial carrier that knowingly carries any person in contravention of the Act.
Punishment: Imprisonment for 2 years or fine of N2million.
(2) where the offence is committed on the instigation of the Manager, Secretary etc.
Punishment: Imprisonment for 3 years or to a fine of N2million.
xx. Any tour operators, travel agents or airline who violates the provision of section 30 and 31 commits an offence.
Punishment: Liable on conviction to a fine not exceeding N200,000.00.
xxi. Conviction for any of the offences under the Act.
Punishment: The passport of the person convicted shall be forfeited to the Federal government of Nigeria.
xxii. Obstruction of the Agency authorised officers.
Punishment: Liable on conviction to imprisonment for a term not exceeding 5 years or to a fine of N50,000.00 or both.
xxiii. Offences committed in any place outside Nigeria by a Nigerian or a person granted permanent residence in Nigeria.
Punishment: Dealt with in respect of such offences as if it was committed in Nigeria.
1..7.2 “Child Trafficking” as a violation of human rights in Nigeria.
The trafficking of children is one of the gravest violation of human rights in the world today. Children and their families are lured by the empty promises of the trafficking networks:- promises of a better life, of an escape route from poverty, and every year, hundreds of thousands of children are smuggled across borders and sold as mere commodities. Their survival and development are threatened and their rights to education, to health, to grow up within a family, to protection from exploitation and abuse, are denied.45
Important international legal instruments, to which Nigeria is either a party or a signatory, are already in place, particularly the UN Convention on the Rights of the Child and its Optional Protocol on the sale of children, Child Prostitution and Child Pomography, the supplementary Protocol to the International convention on Organised Crime to Prevent, Suppress and Punish Trafficking in Persons;
Especially Women and Children and the new ILO Convention 182.
However, the implementation of these standards requires a proper understanding of the problem and a clear commitment to its elimination.
What then is child trafficking? How is it an issue of human rights voilation both under international law and Nigerian Law?
(a) What constitute “Child Trafficking” ?
Under Article 3(a) of the UN Anti-trafficking Protocol47, trafficking in persons, is, therefore, envisaged as the transfer of persons by fraudulent means for exploitative purposes.
On child trafficking, sub-paragraph (c) of the same article goes further, in that it is not deemed necessary for fraudulent means to be used for a situation to be classified as child trafficking:-
“The recruitment, transportation, transfer, harboring or receipt of a child for the purpose of exploitation shall be considered ‘trafficking in persons’ even if this does not involve any of the means set forth in sub-paragraph (a) of this article.”
This definition is of fundamental importance in West and Central Africa, where child trafficking often occurs with the consent of the parents and, sometimes, of the children themselves.48
In the light of the definition of ‘the child’ adopted by Article 1 of the UN Convention on the Rights of the Child (CRC), these principles apply to anyone under 18 years of age. Articles 2 of the African Union Charter on the Rights and Welfare of the Child49 adopted the same definition.
The reference to an exploitative purpose establishes a clear distinction between the phenomenon of trafficking in persons referred to in these instruments and the trafficking in migrants. In West and Central Africa this is a fundamental distinction. This sub-region is criss-crossed by migration, some of it dating back centuries. This new definition, therefore, compels states and their partners to distinguish between child trafficking and the seasonal migration of child workers and the situation of immigrant children exposed to exploitative labour.50
It is interesting to compare the definition in the Inter-American convention on International Child Trafficking, adopted by the Organisation of American States in March 1994. Article 2 sub-paragraph (b) defines Child trafficking as the abduction, transportation or the retention of a child or the attempt to abduct, transport or retain a child, for illegal purpose or by illegal means.
This definiiton covers a wide range of situations. If the means used to transfer the child are illegal, the legal status of the purpose of the transfer becomes immaterial. This convention addresses child trafficking for adoption, where the aim may be legal but the means are fraudulent.
The Protocol to the CRC on the sale of children, child prostitution and child pornography gives a broad definition of the sale of children that covers many constituents of child trafficking. This makes it possible to prosecute intermediaries as well as employment agents and employers. Article 2(a) of the Protocol defines the sale of children as any action or transaction that transfers a child from one person or group of persons to another for remuneration or any other benefit. Article 3(1) (a) calls on state parties to make it a criminal offence to offer, deliver or accept, by whatever means, a child for the purpose of sexual exploitation, transfer of organs of the child for profit, or engagement of the child in forced labour.
In Nigeria, child trafficking constitutes any of the following actions relating to a person under the age of 18 years:-51
(a) Exportation out of or importation into Nigeria any under 18 year old person for prostitution by means of force or seduction.
(b) Procurement by any person of such person for illicit purpose with another person, by means of deception, coercion, debt bondage or any means whatsoever;
(c) Causing or encouraging the seduction or prostitution of any person under 18 years,
(d) Procurement of any person under 18 years to have unlawful carnal knowledge with any other person either in or outside Nigeria;
(e) Promotion of foreign travel, of a person under 18 years, which promotes prostitution;
(f) Procuring defilement of any person under 18 years, either in or outside Nigeria, by threats, fraud or administering drugs;
(g) Kidnapping from guardianship of any person under 18 years;
(h) Buying or selling any person of under 18 years for the purpose of employment or immoral purposes;
(i) Unlawful forced labour of any person under 18 years outside Nigeria;
(j) Trafficking in slaves and slave dealing,
(k) Seduction or prostitution of person under 18 years by an alien;
(l) Attempt to commit any of the offences under Act is also punishable.
(b) Why and how child trafficking constitutes a human rights violation in Nigeria?
It is evident from the above mentioned ingredients of child trafficking that, it is a complex protection issue including the removal of a child from his or her family environment, the child’s transportation, illegal reception or sale, and placement into an exploitative context (Labour, sexual or economic).52
The widespread perception of child trafficking solely, as a child labour phenomenon, misses the point. This is so because, trafficking violates the rights of children, under both internationally recognized and national legal instruments, long before their actual labour begins. First, there is the separation of a Child from his or her family environment. Then there is the time spent in the so-called ‘care’ of the traffickers while the child is transported to the eventual workplace:- a process that presents its own dangers and abuses. Then there is the illegal reception or sale of the child and, ultimately the child’s final dstination.53
Understandably among the Nigerian populace, there is a little perception that trafficking is, first and foremost, a violation of human rights, particularly, the rights of the child to be protected from any form of labour, economic and sexual exploitation, to preserve family relations and to grow up in a nurturing family environment54
Based on current knowledge of the scale of the problem of child trafficking, the volume, types, major causes, suppliers and receivers, limitations and challenges, as well as the fact that Nigeria is now a major supplier, consumer and also a transit route for human trafficking, especially, children and women,55 the Federal Government promulgated into law, the Child’s rights Act of 2003. This Act seeks to set out the rights and responsibilities of a child, specifies the obligations of parents, governments and other authorities, organizations and bodies, domesticates the four broad clusters of rights of a child to survival, development, protection and participation guaranteed under the UN Convention on the Rights of the Child and the African Union Charter on the Rights and Welfare of the Child; provides for a system of child Justice Administration, and the care and supervision of a child, amongst others; finally, it gives muscle to the various state and federal legislations dealing with individual aspects of child protection, including the prohibition of:- Child labour and child trafficking, child hawking and begging, child marriage and betrothal, withdrawal of children from schools, mainly for commercial or marriage purposes.56
Under the interpretation section 277 of the CRA, 2003, the “age of majority” means the age at which a person attains the age of 18 years; whilst a “child” means, a person under the age of 18 years.
Under sections 1-2 (Part 1), the Act provides that the best interest of the child shall be of primary or paramount consideration in all actions to be undertaken whether by an individual, public or private body, institutions or courts of law, administrative, executive or legislative authority. Further, the Act provides that necessary protection and care shall be given to the child for his or her well-being, taking into account the rights and duties of the child’s parents, legal guardians and other bodies legally responsible for the child.
Part II (Sections 3-20) of the Act provides for the rights and responsibilities of a child in Nigeria. Accordingly, it entrenches, among others the following fundamental rights for the child:- the rights to survival and development, to private and family life, to freedom from discrimination, to dignity of the child, to health and health care services, to parental care, protection and maintenance, to free, compulsory and universal primary education, as well as encouragement of the child to attend and complete secondary education. The Act also guarantees the right to special protection measures of a child in need of such protection as is appropriate to his or her physical, social economic, emotional and mental needs and under conditions which ensures his/her dignity, promote the child’s self-reliance and active participation in the affairs of the community, as well as the provision to a child with such assistance and facilities necessary for the child’s education, training, employment, rehabilitation and recreational opportunities in a manner conducive to the child’s overall development.
Part III (Sections 21-40) of the Act provides for the Protection of the rights of the child against child trafficking, labour, sexual and other economic exploitative, discriminatory and harmful practices through the prohibition of:- child marriage, child betrothal, exposure to use, production, trafficking, etc of drugs and psychotropic substances, use of children in any criminal activity, abduction and unlawful removal and transfer of a child from lawful custody, forced, exploitative or hazardous child labour, including outlawry of employment of children as domestic helps outside their own home or family, buying, selling, hiring or otherwise dealing in children for the purpose of hawking, begging for alms, prostitution, unlawful sexual intercourse, other forms of sexual abuse and exploitation prejudicial to the welfare of the child.
Part V. (sections 50-52) of the Act provides for additional protection of children in need of care and protection from physical or moral danger.
Further, under section 17 (f) of the 1999 Nigerian Constitution, all levels and arms of government are obligated to ensure that:- “Children and young persons and the aged are protected against any exploitation whatsoever, and against moral and material neglect.”
In support of the position that trafficking is a human rights violation issue, three international legal instruments ratified by Nigeria affirmed as follows:-
i. Convention No. 182 of the ILO on the Worst Forms of Child Labour (1999), which in article 3
(a) recognises child trafficking as one of the worst forms of child labour:- “all forms of slavery or practices similar to slavery, such as the sale and trafficking of children, debt bondage and serfdom and forced or compulsory labour, including forced or compulsory recruitment of children for use in armed conflict,” and calls for action by member states to eliminate them.
ii. The 1989 UN Convention of the Rights of the Child (CRC), its general principles and its specific provisions, particularly article 35 which calls on state parties to:- “take all appropriate measures to prevent the abduction of, the sale of traffic in children for any purpose or in any form,” and article 32, which recognizes the child’s rights to be protected from economic exploitation.
iii. Under the African Union Charter on the rights and Welfare of the child, article 15 seeks to protect African children form all forms of child labour and economic exploitation, article 16 protects children against child abuse, neglect, maltreatment and torture, whilst article 27 seeks to protect children from all forms of sexual abuse and sexual exploitation as well as the use of children in the production and trafficking of narcotics and other illicit drugs, article 29 urges State Parties to take appropriate measures to prevent the sales of, or traffic in children and their abduction for any purpose or in any form, by any person including parents or legal guardians.
1.8 Who is a Victim of Trafficking?
Under section 50 paragraph 10 of the Nigerian Anti – Trafficking in Persons Act, a victim of trafficking means any trafficked person.
It is evident from the earlier analysis of victim of crime, abuse of power and of human rights violation, as well as trafficking as a crime and a violation of human rights under both Nigerian and International Laws, that there are three categories of victims of trafficking:- trafficked children below the age of 18 years (boys and girls), trafficked adult women, who are above the age of 18 years, and trafficked men, who are adult males or above the age of 18 years.
This categorization was taken care of when the earliest drafts of the UN Trafficking Protocol limited its application to trafficking in women and children. At the very first negotiation session, States, intergovernmental organizations, and NGOs argued that this approach was unnecessarily restrictive and failed to take into account the fact that men were also trafficked. Following a recommendation of the Ad-Hoc Committee, the UN General Assembly subsequently agreed to modify the mandate of the committee’s mandate so as to enable that the scope of the proposed protocol be expanded to cover trafficking in persons:- especially women and children.57
In Nigeria, any child, woman or man that is recruited, transported within or across Nigerian borders, purchased, sold, transferred, received or harboured by fraudulent means or by the use of deception, coercion or debt bondage for exploitative purpose or for the purpose of placing or holding the person in servitude in force of bonded labour, or in slavery – like conditions, is a victim of trafficking.58
Further, since trafficking is a crime and a human rights violation, all trafficked children, women and men are essentially therefore, victims of crime, of human rights violation and of trafficking.
1.9 What is a victim initiated criminal process?
Although the criminal process is victim initiated, and there can be no determination of guilt and conviction without victim participation, the punishment of the offender pays very little regard to the inherent dominant participation of the victim. According to Karibi-Whyte, J.S.C. (as he then was):- “The sentencing policy in both the Criminal Procedure Act, and the Criminal procedure Code, pays very little and indeed less than marginal emphasis on the participation of the victim. The sentencing policy demonstrates a tendency towards deterrent, retributive and little rehabilitative punishment. The punishment attached to the offence by the Criminal and Penal Codes are determined by its nature and gravity and its effect on the political and economic fortunes of the society.59
The participation of the victim in our criminal process is limited to his/her role as a witness for the State in the prosecution of the offender. This passive role has been criticized as unsatisfactory and not sufficiently demonstrative of the interest of the victim in the prosecution of the offender. The view is that victims, offenders and their communities should be involved at the earliest stage and to the fullest extent possible in the administration of the criminal Justice process.60 It has also been suggested that victims who along with the state have suffered injury from the conduct of the offender, should be allowed to file separate criminal or civil actions in respect of the injury. Individuals of course have suffered more from such injuries than the state. In Austria, Belgium, Denmark, France, Portugal, Spain and Germany and in most civil systems of administration of Justice, victims are allowed to join civil claims for damages with criminal prosecutions.61 In Russia, the victim is allowed to initiate criminal prosecutions in minor cases, such as minor assault and battery and defamation.62 Apart from the fact that victim participation in the above described methods results in speediest criminal process, and are considerably less expensive than civil process,63 it accords the victim an official role. It is also a recognition of the interest of the victim in the prosecution of the criminal offender. This is an affirmation of the fundamental principle that crime is an act against the individual, the community and the state. But more important, it accentuates and clearly distinguishes the interest of the individual victim from that of the state.
The nature of victim participation will depend upon the nature of the Judicial process, the cultural and social content of the subject population and most important of the observance of the fundamental requirements of the principles of Justice. According to Karibi-Whyte, J.S.C. (as he then was):- “It seems to me that in considering provisions from victims participation, the essential elements of Justice in the prosecution of the accused should still remain dominant. The special interest of the victim should only be a relevant factor after the offender had been adjudged culpable and guilty. Hence in our adversary system it will be clearly inconsistent with our concept of Justice and fairness to make the victim of the offence a co-operator. Strictu sensu, there is only the victim in respect of who the offender is liable thereafter and not before there had been a determination of guilt. It is therefore obfuscating the criminal process and polluting the pure stream of Justice by the assumption of his guilt before he was so adjudged after due process of the law.”64
The above perception of limited victim’s role in our adversarial system has prompted the argument that the rights and legal position of victims of crime and abuse of power are very poorly protected, especially in comparison with the range of rights which are extended to offenders (in theory at least).65
2. Protection of the Rights of Victims of Human Rights Violation and Trafficking.
Trafficked Persons as basically Victims of crime and human rights violations, the UN Victims Declaration,66 sets out provisions relating to access to justice and fair treatment, restitution, compensation and assistance, stating the following rights which victims of crime and abuse of power should be able to exercise:-
2.1 Right of Access to Justice and Fair Treatment
(a) Access to Justice means that where people do need help, there are court and other mechanisms of Justice which are accessible, affordable, comprehensible, fair and equitable legal framework, and dispense Justice speedily without fear or discrimination.67
Hence victims of crime of trafficking have the right:- to access mechanisms of Justice and to prompt redress; to the establishment of fair, inexpensive and accessible procedures of redress, both formal and informal, to be informed of such mechanisms, the scope, timing and progress of the proceedings and the disposition of their cases, especially in cases of serious crime and where such information was requested; to have their views presented and considered at appropriate stage of the proceedings where their personal interests are affected; to be provided with proper assistance throughout the legal process; to protection of their privacy, and to measures to ensure their safety and that of their families from intimidation and retaliation, in order to minimize inconvenience to victims; to avoidance of unnecessary delay in the disposition of their cases and the execution of orders granting awards to them; to have access to informal mechanisms for the resolution of disputes, including mediation, arbitration and customary practice, which should be used where appropriate to facilitate conciliation and redress for victims.68
(b) Victims’ right to fair treatment means right to be treated with compassion and respect for their dignity.69
Under the Nigerian Anti-Trafficking in Persons Act, a trafficked person shall not be subjected to discriminatory treatment in practice on any account whatsoever, including his or her status as a victim of trafficking or having worked in the sex industry; a person, in certain circumstances, shall not be detained, imprisoned or prosecuted for offences relating to being a victim of trafficking, including non-possession of valid travel stay or use of a false travel or other document.70
2.2 Right to protection of Privacy
Under the Nigerian Anti-Trafficking Act,71 victims of trafficking shall have their identity protected; that investigation, detection, gathering and interpretation of evidence are conducted in such a manner as to minimize intrusion into the personal history of a trafficked person; the use by any person’s history of being trafficked to discriminate or cause harm to any trafficked person, his family or friends in any way whatsoever, particularly with regards to freedom of movement, marriage or search for gainful employment shall not be encouraged.
2.3 Right to protection against traffickers and to institute action for remedies including compensation, restitution and recovery.
Under the 2003 Anti-Trafficking Act, a trafficked person and his family shall be protected from intimidation, threats, and reprisals from traffickers and their associates including reprisals from persons in authority.72
Further, a trafficked person, irrespective of his/her immigration status, shall have the right to institute a civil action against a trafficker and any other person including a public officer who have exploited or abuse him/her, and such a victim shall be entitled to compensation, restitution and recovery for economic, physical and psychological damages to be met from the assets, if any, of the convicted trafficker, forfeited and paid into the Victims of Trafficking Trust Fund.73
With regard to restitution and compensation, a number of principles are set out in Articles 8 to 13 of the Victims Declaration:- Offenders or third parties responsible for their behaviour should make fair restitution to victims, their families or dependants, where appropriate. Such restitution should include the return of property or payment for the harm or loss suffered, reimbursement of expenses incurred as result of the victimization, the provision of services and the restoration of rights.
Governments should review their practices, regulations and laws to consider restitution as an available sentencing option in criminal matters, in addition to other criminal sanctions.
Where public officials are the offenders, the state should be responsible for restitution to victims.
Further, where compensation cannot be obtained from the offender or other sources, the states are encouraged to provide such compensation. The establishment of particular funds to that end is encouraged.
2.4 Right to Assistance.
Under Articles 14-17 of the Victims Declaration, victims should receive the necessary materials, medical, psychological and social assistance through governmental, voluntary, community-based and indigenous means.
Victims should be informed of the availability of health and social services and other relevant assistance and be readily afforded access to them.
It is recommended that police, Justice, health, social service and other personnel concerned should receive training to sensitize them to the needs of victims, and guidelines to ensure proper and prompt aid.
Under the Nigerian Anti-Trafficking Act, a trafficked person should have access to adequate health and other social services during the period of temporary residence; a trafficked person shall also have access to the embassy or consulate of which he is a citizen or any diplomatic representative to protect the victim; a trafficked person shall not be denied temporary residence visas during the pendency of any criminal, civil or other legal action.74
According to the NAPTIP Victim Manual, a victim of trafficking is entitled to a shelter if he/she so desires for a period not exceeding two weeks for his or her psychological and vocational counseling. A victim is also entitled to rehabilitation and reintegration programme of the NAPTIP to enable the victim acquire prerequisite skill in any vocation of the victim’s choice and also if necessary formal education. Moreover, a victim on request is entitled to micro-credit facilities provided by NAPTIP’S partners to enable victims of trafficking complete the process of reintegration into the society.75
2.5 Right of trafficked person to remain in the receiving country and to return to state of origin safely.
Under Article 7 (1) and (2) of the UN Protocol on Trafficking in persons, a state party is to consider adopting legislative or other measures permitting victims of trafficking to remain in their territories temporarily or permanently in appropriate cases with appropriate consideration being given to humanitarian and compassionate factors.
By virtue of Article 8 of the UN TRAFFICKING Protocol, state parties of origin are to facilitate and accept, without undue or unreasonable delay, the return of their trafficked nationals and those who have a right of permanent residence within their territories with due regard to the safety of those persons. In order to facilitate repatriation, states parties shall communicate with each other in verifying nationalities as well as travel and identity documents. In returning a trafficking victim to another state party, the returning state party is similarly required to ensure that such return is with due regard both for the safety of the trafficked person and the status of any legal proceedings relating to the fact of that person being a victim of trafficking. The Protocol notes that return shall preferably be voluntary.
Similarly, section 36 of the Nigerian Anti-Trafficking Act provides that a trafficked person is entitled to return home safely, if he/she wishes and when the victim is able to do so. That a trafficked person shall not be denied temporary residence during the pendency of any criminal, civil or other legal actions.
3. Role of Prosecutors and Judges in the Protection of Victim’s rights and the Criminal Justice Administration.
The administration of Criminal Justice is an exceedingly complex process that involves a large number of formal and informal agencies concerned with different aspects of the problems of crime and delinquency. The police, the courts, the prisons and the Office of the Director of Public Prosecutions in the Ministry of Justice are examples of formally organized agencies.76
The aim of the criminal Justice has been aptly summarized thus:- It is to sustain the Rule of Law by preventing crime wherever possible; by detecting the culprit, when crimes are committed; by convicting the guilty and acquitting the innocent; and by dealing adequately and appropriately with those who are guilty and by giving proper effect to the sentence and orders which are imposed.77
From the perspective of the Criminal Justice system, the significance of the adoption of a federal system of government lies in the division of legislative powers between the various tiers of government within the Federation. In other words, which tier of government is vested with the power to render an act or omission a crime? Which tier of government has the power to prosecute a crime? These have led to the distinction between federal and state offences.78
Both the federal and state governments have the legislative competence to enact criminal laws. However, certain subject matters are reserved exclusively for the Federal Government under the Exclusive Legislative list of the 1999 Constitution.79 Prohibition of trafficking however, is within the competence of both governments.80
Human rights in the administration of criminal Justice, therefore, refers to what institutional arrangements exist for protecting the rights of individuals in their most vulnerable circumstances, that is, as suspects or offenders or victims. This is irrespective of whether they are aware of their rights or not.
However, Just as citizen’s awareness of his right is an extremely important element in ensuring the observance of such rights, so is the recognition of the fact that organs for the administration of criminal Justice that respect human rights thus reap benefits which advance the very objectives of criminal justice, while at the same time building a law enforcement and criminal justice structure that does not rely on fear and raw power, but on honour, professionalism, legality and fairness to all.81
It is against this background that the role of prosecutors and Judges will be examined.
3.1 Role of Prosecutors82
A prosecutor is a person who instigates, institutes or causes to be instituted a Judicial proceedings against a person, in a court of law or competent tribunal, for the determination of liability, right, etc.83
Prosecutors, as essential agents of the administration of Justice, shall at all times maintain the honour and dignity of their profession, and be made aware of the ideals and ethical duties of their office, of the constitutional and statutory protections for the rights of the suspect and the victim, and of human rights and fundamental freedoms recognized by national and international law. Thus contributing to fair and equitable criminal justice and the effective protection of citizens against crime.
On the role of prosecutors in criminal proceedings, the UN Guidelines on the role of prosecutors,84 adopted by the 8th UN Congress on the Prevention of Crime and the Treatment of Offenders, 1990, provides, among others as follows:-85 That prosecutors shall perform an active role in criminal proceedings, including institution of prosecution and, where authorized by law or consistent with local practice, in the investigation of crime, supervision over the legality of these investigations, supervision of the execution of court decisions and the exercise of other functions as representatives of the public interest.
Prosecutors shall, in accordance with the law, perform their duties fairly, consistently and expeditiously, and respect and protect human dignity and uphold human rights, thus contributing to ensuring due process and the smooth functioning of the Criminal Justice System.
In the performance of their duties, prosecutors shall, among others:- carry out their functions impartially, protect the public interests, act with objectivity, take proper account of the position of the suspect and the victim, and pay attention to all relevant circumstances, irrespective of whether they are to the advantage or disadvantage of the suspect; consider the view and concerns of victims when their personal interest are affected and ensure that victims are informed of their rights in accordance with the Victims Declaration.
In order to ensure the fairness and effectiveness of prosecution, prosecutors shall strive to cooperate with the police, the courts, the legal profession, public defenders and other national human rights institutions or government agencies.
3.2 Role of Judges
In administration of Justice, the critical role of Judges is that of the guardian of the Rule of Law and enforcer of fundamental rights of suspects, offenders and victims in any politically organized society. It is the function of courts of law to open their doors for aggrieved parties to seek redress. They have Jurisdiction to do Just that. They do not have the Jurisdiction to shut out aggrieved parties coming for remedies. As a matter of law, the entire essence for establishing courts of law is to adjudicate upon disputes between parties and come to a clear decision one way or the other. Judges have no legal right to stand by the fence and see litigants fighting or in altercation without looking at the merits of the matter and taking a decision. That may result to self-help on the part of the aggrieved party, a situation which may give rise to anarchy or despotism or injustice. In either case, the social equilibrium and the stability of the society is disturbed, if not destroyed, and that will not be good for both the society and the courts.86
Generally, the courts have the last and the most authoritative say in the determination and pronouncement of what Justice demands in every situation involving claims and counter-claims to legal rights and duties. But the Justice meted out by the courts is human and not divine. It is a product of a fair, impartial and consistent application of domestic and international laws to facts in dispute as adduced in evidence by the parties.87
Therefore, in the context of administration of Criminal Justice, Justice is not a one-way traffic. In the words of Justice Oputa, in Josiah v. The State, “Justive for the appellant accused of a heinous crime of murder; Justice for the victim, the murdered man, the deceased, whose blood is crying to heaven for vengeance, and finally Justice for the society at large, the society whose social norms and values had been desecrated and broken by the criminal act complained of.”88
These words express the Judicial view of penal policy. Thus in the criminal law, Justice envisages the doing of right not only to the offender, accused, of breaking the law and violating the approved social norms, but also justice to the victim of such conduct, constituting a crime and a human rights violation, and the society whose treasured values have been violated.
It is evident from the above analysis that given the numerous instruments that set out to protect the rights and welfare of suspects and accused persons, the fact that there is little or no legal foundation protecting those of victims of crime and abuse of power offers a disconcerting view of priorities. It does not seem fair or just that their rights and position are so poorly protected in comparison with the levels of protection extended to offenders.
While the situation of all victims of crime and abuse of power is a matter of concern to all the organs for the administration of criminal Justice, victims of trafficking deserve particular attention for the very fact that the violation in question has been committed by unscrupulous and heartless individuals or group of individuals in an organised setting, through their official collaborators, at times, to debase the human dignity of trafficking victims.
Accordingly, the following viable options are proposed.
(a) Judicial and administrative mechanisms should be strengthened where necessary to enable victims to obtain prompt and adequate redress through formal and informal procedures that are expeditious, fair, inexpensive and accessible.
(b) Need to educate the public about the rights and duties of suspects, offenders, victims and the state as stakeholders in the criminal justice system. This is with a view to ensure a meaningful balance in addressing the needs, concerns, hopes, fears, and aspirations of all citizens in the society
(c) Need to further re-examine our criminal justice administration with a view to addressing the problems created by our inheritance of a colonial system which extols the theory of law and state to the point that recognizes only the state and the offender as the “parties” to criminal proceedings, and to the attendant neglect of the rights and welfare of the victim.
(d) There is the need for further inter-agency and international coordination and collaboration to combat effectively the menace of trafficking; need to strengthen the capacity of NAPTIP and other law enforcement agencies on developing programmes that seek to assist victims of trafficking physically, psychologically, educationally, economically and for ultimate social re-integration into the society.
ENDNOTES AND REFERENCES
1. See the Economist, 19 April 2001.
2. For more on the situation of children in domestic labour in the world, see J. Kane:- Helping hands or shackled lives? Understanding Child Domestic Service and responses to it, (Geneva, ILO-IPEC, 2003).
3. See Ladan M. T., Dimensions of Child abuse in New Nigerian Newspapers. Kaduna, September 10 and 17, 2001, at p. 5 each.
5. See Oloko, S.B.A. (1992) Situation analyses of Children in Especially Difficult Circumstances (A UNICEF Report in collaboration with J. Shindi, A Olowu, R. A. Mohammed, B., Arikpo and O. Soyombo.
6. See Cole, P. D., (1975) Lagos Society in the 19th Century, Lagos:- The Development of an African City. Longman, Nigeria, P. 43.
7. Oloko (1992) Op. cit.
8. Oloko (1992) Supra, note 5.
9. See Endnote no. 2 Supra.
12. See ILO, Geneva (2001):- Stopping Forced Labour, P. 30.
13. Ibid, at Page 31.
14. Ibid, P. 31.
15. Trafficking, slavery and bonded labour are considered ‘unconditional’ worst forms of child labour, that is, there are no mitigating factors that can be taken into account. The unconditional worst forms also include forced recruitment into armed conflict Prostitution, promography or illegal activities such as the sale and trafficking of drugs.
16. See helping hands or shocked lives, op. cit P. 14.
17. Refer to ILO-IPEC, Geneva, (May 2000):- South Africa – Child domestic workers:- A national report, P. 28.
18. See ILO-IPEC, Geneva, (May 2000):- combating trafficking in Children for labour exploitation in Central and West Africa, Synthesis report.
19. UNICEF Fact Sheet:- Nigeria, June 2002, at p. 2.
20. Ibid. P. 2.
21. Ibid, Pp. 2-3
22. See the Child’s Rights Act, 2003, Federal Republic of Nigeria, Official Gazette, No. 116. Vol. 90, Act No. 26:- (Sections 2-4, 8-15).
23. Ibid, Section 28, Child’s Rights Act, 2003.
24. Section 20 CRA, 2003, Ibid.
25. See Blockett, A., (1998), Making domestic work visible:- the case for specific regulation.
26. See ILO Recommendation No. 192 which supplements ILO Convention NO. 182.
27. Adopted by UN General Assembly Resolution 40/34 of 29 November, 1985.
28. Section 13 of the UN Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power.
29. Ibid, section 2.
30. Section 2, Ibid:- Victim’s behalf here means:- “Intervening to assist victims in distress or to prevent victimization.”
31. See Opua JSC, in Kuti v. A. G. Federation (1985) 8 NWLR (Pt. 6) 211.
32. See the first, identical, sections of the Preambles to the Universal Declaration of Human Rights of Decembers 10, 1948, and of the two international Covenants of civil, political economic, social and cultural rights of 1966.
33. See Vienna Declaration adopted by the World conference on Human Rights (1993), Part I, paragraphs 5, 18-30.
34. See Ladan M. T. (ed.), Law, Human Rights and the Administration of Justice in Nigeria, (2001), A.B.U., Press, Zaria, at pp. 66. 88.
35. See Cap. 4 on Fundamental Human Rights under the 1999 Constitution of Nigeria, also See Osita N. O., Human Rights Law and Practice in Nigeria, (1999) CIDJAP Press, Enugu, pp. 68-309.
36. Article 1, Victims Declaration, supra notes 12 and 13.
37. Ibid, Article 18.
38. Supplementing the UN Convention against Transnational Organised Crime (CCTO of 15 November 2000).
39. The Anti-Trafficking Protocol was adopted by the UN General Assembly in November 2000 and opened for signature at a high-level intergovernmental meeting convened in Palermo, Italy in December 2000.
40. Ibid, Article 3(c).
41. See Article 1 of the 1927 Slavery Convention which defines Slavery, The 1930 ILO Convention No. 29 concerning Forced or Compulsory Labour defines forced Labour; and Article 1 of the 1957 Supplementary Convention on the Elaboration of Slavery, the Slave Trade and Institutions and Practices similar to Slavery:- refers to the institutions and practices and debt bondage, serfdom, servile forms of marriage and exploitation of children which are held to be similar to slavery.
42. Both the UDHR of 10 December 1948 and the International Covenant on Civil and Political Rights adopted on 16 Dec. 1966, entered into force on 23 March 1976, stipulate that no person shall be held in servitude. While not defined in either instrument, the term is generally seen to be broader than slavery, referring to “all conceivable forms of domination and degradation of human beings by human beings,” See Nowak, M., UN Covenant on Civil and Political Rights:- CCPR Commentary 148 (1993).
43. According to the 7th draft revised of the protocol, the term “servitude”, as used in the definition of trafficking: “shall mean the conditions of a person who is unlawfully compelled or coerced by another to render any service to the same person or to others and who has no reasonable alternative but to perform the service, and shall include domestic service and debt bondage.” See Revised draft Protocol, UN doc. A/AC. 254/4/Add.3?Rev./(2000.art. 2 bis(c).
44. UN doc. A/AC. 254/4/Add.3/Rev. 6(2000), supra note 43. It is widely accepted that trafficking in organs necessitates the trafficking of the orgn’s host.
45. The Act came into force following the assent of Mr. President on 14 July 2003, and the NAPTIP agency came into being on 8 August 2003.
46. UNICEF Nigeria *2000):- Child Trafficking in Nigeria:- Analysis of Nigeria’s response to the Libreville Platform of Action (2000) pp. 1 to 39.
47. Supra note 24.
48. See UNICEF Nigeria, Fact Sheet on Child Trafficking, supra note 6.
49. Adopted by the OAU Assembly of Heads of State in 1990.
50. See Oloko S.B.A., Child Work and Child Labour in Nigeria:- Continuities and Transformation (2003), University of Lagos Press, Lagos.
51. See Anti-Trafficking Act, 2003, supra note 9, Sections 11-32 respectively.
53. See UNICEF Fact sheet, supra note 6.
54. Refer to Ladan M. T., “The Nigerian Child’s Rights Act, 2003 – Rationale, Structure and contents’, in Nigerian Bar Journal, Abuja, Vol. 2, 2004, at pp. 219-240.
55. UNICEF Fact sheet, supra note 6.
56. Ladan M. T. supra note 39.
57. UN Gen. Ass. Res. 54/126 (1999) For additional details on this issues, see UN Doc. A/AC.254/30 (2000). E/CN.15/2000/4(2000), 1.34.
58. See the combined effect of Article 3(a) UN Trafficking Protocol and section 50 of the Nigerian Anti-Trafficking in Persons Act, supra notes 9 and 24.
59. See compensation and Remedies … Supra note 3, at p. 259.
60. See Van Ness:- “A Restorative Future for Criminal Justice”, Paper presented at the Conference of the society for the Reform of the Criminal Law, August 1988 in Ottawa, Canada.
61. Dunkel, F. “Reparation and Victim – Offender Conciliation etc.” in European and North-American Juvenile Justice Systems:- Aspects and Tendencies” (1986) pp. 303-327.
62. Terril, R. J. “World Criminal Justice Systems:- A Survey” (1984) Cincinatti
63. See Vodopivee, K. (1978 “Restitution to Victims of Criminal Offence”, in Slovenia International annals of Criminology, 17 at pp. 147-166.
64. See Merryman, J. H. and Clark, D. S. (1978)” Comparative Law; Western European and Latin America Legal Systems”, Indianapolis.
65. Karibi-Whyte, in supra note 3, at pp. 281-2.
66. Ladan M. T., Capacity-Strengthening … Supra note 6.
67. Victims Declaration, supra note 13.
68. Ladan M. T. “Women’s Rights, Access to, and Administration of Justice under the Sharia in Nigeria,” in Sharia Implementation in Nigeria (2003):- Ezeilo, Ladan and Afolabi (ed.), WACOL., Enugu and WAARD C. Lagos, at. P. 19.
69. Articles 4-7 of Victim Declaration. Op. cit.
70. Ibid, Article 4.
71. See Sections 36 and 37 of the Act.
72. Ibid, Section 36.
73. Ibid, Section 38.
74. Ibid, Section 36
75. NAPTIP, Abuja:- Victims Support Manual, pp, 3-5.
76. See Ladan M. T., supra note 1, p. 187.
77. Ibid, at pp. 187-8.
78. For the analysis of the development of Criminal Justice administration in Nigeria, See Ajomo and Okagbue:- Human Rights and the Administration of Criminal Justice in Nigeria 1991) NIALS, Lagos, Cap. 2.
79. Section 4 of the Constitution
80. See e.g. Section 207 – 239 of Zamfara State Sharia Penal Code Law, 2000.
81. Ladan M. T., supra note 1.
82. On the structure of Prosecution in Nigeria, see Ajomo et.al., supra note 64 at pp. 30-34.
83. See Inchi, supra note 2 at p. 261.
84. Adopted at Havana, Cuba, 27 August to 7 September 1990.
85. See Articles 10-17, Ibid.
86. See Ladan M. T., Law, Human Rights and Administration of Justice in Nigeria (ed) (2001), A.B.U. Press, Zaria, Nigeria.
87. See Ladan M. T., supra note 1, at pp. 313-415.
88. (1985) 1 NWLR 125.
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