South Africa has an incredibly poor reputation for managing human trafficking and in the past lacked strong legislation to stop it. A new law implemented in 2015 promises to see more cross-border trafficking cases prosecuted, but it has been criticised for lacking a complete framework for tackling home-grown exploitation. So why was this incomplete law pushed through?
A young woman in a poor, Eastern European country sees an advert offering a glamorous job to waitress in Cape Town or Johannesburg, the City of Gold. Eager for a chance to work in a country where people can make their own destinies, she calls the number to arrange an interview.
She’s told that for R40,000, a company will take her to South Africa where she can claim her job. She’s also told she can pay back the money from her earnings and board the first plane out of Eastern Europe if she’s keen to snap up this amazing opportunity.
She excitedly boards the plane to South Africa, filled with promise and hope. However, she isn’t taken to a fancy restaurant or hotel; instead, she’s taken to a brothel, where she’s sold to the owner and forced to become a prostitute. She is told she must pay off that R40,000, in addition to her daily board and lodging. She’s alone in a country where she doesn’t know a soul, can barely speak the languages, where she has no official paperwork and where she’s been threatened with violence or death if she runs away.
This is the kind of story that plays out in most people’s minds when they think of human trafficking. This is also the kind of story that conflates sex work and human trafficking while perpetuating misconceptions of the crime and pulling focus from a potentially more important discussion – exploitation. This picture, while probably familiar, is frighteningly inaccurate and misleading; at least where South Africa is concerned.
South Africa has had an incredibly poor reputation for managing human trafficking and, in the past, lacked strong legislation to support this social quandary. South Africa is described on Wikipedia as “a source, transit, and destination country for trafficked men, women, and children.” It goes on to state “South African girls are trafficked within their country for the purposes of commercial sexual exploitation and domestic servitude, while boys are trafficked internally for use in street vending, food service, and agriculture.” This, coupled with alarming statistics such as “30,000 kids trafficked in SA” as reported by Times Live and Pretoria News, paints a gloomy picture of our beloved country – not only to the world, but also to us.
In January 2010, a Time Magazine article reported that “aid groups estimate that some 38,000 children are trapped in the sex trade [in South Africa] and an IOL News article estimated the number to be a little higher: “It is believed that 40,000 women and children were trafficked during the World Cup in Germany in 2006, and it is estimated that close to 100,000 could be affected next year [in SA]”. According to AfricaCheck “In May 2013, Margaret Stafford, the coordinator for the Salvation Army’s anti-trafficking campaign, reportedly told The Star: “In 2010, we had 20,000 to 30,000 children prostituted – now the figure stands at 45,000.” NGO Pulse insisted “the trafficking of women and girls for sexual abuse purposes is likely to increase in order to meet the expected rise in demand for sex.”
With statistics like this, it seems we have a very serious human trafficking problem in our country, right? I sat down with Rebecca Walker and Thea de Gruchy at a café in Melville to get their expert options and insights into the reality of human trafficking in South Africa. Rebecca Walker is a postdoctoral research fellow at the African Centre for Migration and Society (ACMS) at Wits and her current work focuses on researching the multiple vulnerabilities faced by migrant women who sell sex in South Africa. Thea is a researcher and doctoral candidate at the Wits African Centre for Migration and Society (ACMS) and is involved in research which is using the Trafficking in Persons Act of 2013 as a case study through which to try and understand how policy is made and influenced in South Africa.
THE NEW ACT IS PASSED
“The problem is the term ‘trafficking’ has become a catch-all for exploitation and is often used synonymously with cases of exploitation,” says Thea from behind her open laptop. It’s assumed that a migrant woman who chooses to sell sex, or a man who chooses to be smuggled across the border must have been trafficked. “Legally, you would never win a human trafficking case in these examples because ‘trafficking’ as a crime has a three-fold burden of proof” explains Thea.
In July 2013, South African president Jacob Zuma signed the Prevention and Combating of Trafficking in Persons Act into law. In order to be trafficked, according to the Act and the Palermo protocol trafficking definition, three things need to be proven:
1. Movement – A person has to be delivered, recruited, transported, transferred, harboured, sold, exchanged or leased within or across the borders of South Africa.
2. Coercion – There has to be a threat or use of force, coercion, abduction, fraud, deception, abuse of power or vulnerability, or payments or benefits to a person in control of the victim.
3. Exploitation – The victim has to be trafficked for the purpose of exploitation, which includes sexual exploitation, servitude, forced labour, child labour or the removal of body parts. The new act, passed in 2013 was implemented in August 2015. The act is less than a year in the running and promises to see significantly more cases of human trafficking identified and successfully prosecuted. Has the new act made a significant difference?
THE NEW ACT IS FLAWED
“The idea that getting the trafficking act passed as being a major win is very misleading” says Thea. While the new act comprehensively outlines what constitutes human trafficking, it doesn’t seem to cover any concrete procedure in dealing with the victims, nor do we have physical shelters or availability of public welfare for the supposed thousands of trafficked individuals. Thea further explains that in the operationalisation of the act there are specific groups within SAPS who have been trained to identify instances of trafficking. In the procedure for dealing with trafficked victims, SAPS are encouraged to alert certain authorities, take the victim to a shelter and ensure there are SAPS members to guard and protect the victims until they are safe. The reality is, if a case of human trafficking does occur, there won’t be a special task force assigned to bust in, arrest and prosecute a group of criminals; it’s more likely a standard SAPS officer who is instructed to add seeking instances of human trafficking to his or her long list of potential crimes to monitor in their daily work. This police officer may believe there’s no way a woman would choose to sell sex, so therefore the sex worker must have been trafficked. This brings us to a pertinent point about the act – it’s subjective and open to interpretation.
“It’s not likely you’ll encounter a person who has been kidnapped, shipped to a different country, tied to a bed and raped 27 times a day.” says Thea – certainly not without every journalist worth their salt milking the story for all the juicy details. This is the image, a sort of Liam Neeson Taken scenario, that most people have when they think of human trafficking; and police officers aren’t exempt. When an SAPS officer does encounter a case of human trafficking, they’re likely not to identify it because it doesn’t fit the image they have in their mind about what human trafficking looks like. This makes it much more difficult to successfully identify a case. Thea maintains, “once we get evidence of a trafficking trade, we’ll be much better equipped to inform police on how to successfully identify traffickers and how to find and properly care for the victims.”
“The problem with the act is that even if you were a victim of trafficking, or you identified a perpetrator of trafficking, I don’t think the act would help you. The sexual offences act might help you, or the labour legislation might help you.” Thea explains. A concern is how trafficking seems to be the only legitimate way to claim victimhood of exploitation. The trafficking act would be a great deal more effective if it were part of a group of acts crafted to eradicate exploitation. The trouble is it’s a small part of a much larger South African problem.
Anyone can be exploited in numerous ways without necessarily being trafficked. Should these individuals not still be able to access care and legal help regardless of the fact that they haven’t had the horrendous experience of being ‘trafficked’? Migrants experience xenophobia, domestic workers are mistreated and sex workers are abused every day; but because these experiences don’t fall under the strict and explicit definition of human trafficking, these cases aren’t treated with due seriousness. Sensationalising human trafficking contributes to silencing the voices of these victims of exploitation.
THE RAW DATA
I asked both Rebecca and Thea if they could share an example story about a victim of human trafficking. After a prolonged moment of silence, they both unequivocally said ‘no’. This is because victims are so few and far between, very few people have had a chance to even speak to a victim of human trafficking. Chandre Gould, senior researcher in the Crime and Justice Programme of the Institute for Security Studies spent a year tracking sex workers in Cape Town’s streets and brothels in 2008. From a sample size of around four or five hundred women she only unearthed two potential cases of human trafficking. You can find out more on her research in her book, Selling Sex in Cape Town: Sex work and human trafficking in a South African city.
Rebecca, in her many years’ experience in dealing with sex workers has come across countless cases of exploitation, often by police officers, though she has not once been exposed to a victim of human trafficking. Is this because the definition of trafficking is so rigid? Rebecca disagrees. “Just look at cross-border migrant sex workers, many of whom don’t cross the border to sell sex, but find selling sex to be the most viable option when they get here because they can earn well and the hours are flexible.” explains Rebecca from across the table. Cases like these can sometimes involve moving across the border without the correct documentation “given how hard it is for non-nationals to regulate their stay in South Africa” says Rebecca, and can involve exploitation and victim-hood.
However, this does not make them victims of trafficking. She goes on: “To argue so not only misinterprets trafficking and makes it a catch-all label but also misrepresents the experiences of those crossing borders and selling sex. Most often migrant sex workers do face exploitation and violence but not through trafficking but through the fact that sex work is criminalised and migrants are discriminated against.”
To try and present an accurate picture of trafficking in South Africa from what we know, Ms D Kohler-Barnard of the DA asked Malusi Gigaba, Minister of Home Affairs how many instances of child trafficking have been recorded from 2009 to 2015. The answer? A grand total of 43 with only one case of child trafficking reported in 2015.
Meanwhile, The International Organisation for Migration (IOM) reported assisting 306 victims of human trafficking in the Southern African region between 2004 and 2010. That’s 306 victims in 6 years. A far cry from the exaggerated 30 to 40 thousand victims per year as commonly reported.
Research organisation, Lexisnexis, claims to track cases of human trafficking but what they actually track are media reports. With thousands of mislabelled reports, the company comes out with extremely high and obviously incorrect statistics on human trafficking. These reports, really only a collation of secondary data, are used time and time again to drive conversations around human trafficking. So, even seemingly credible research reports are entirely inaccurate.
Hang on, aren’t these figures just the cases that have been found? A similar argument has been used for statistics on rape, inferring that rape occurs far more often than it is reported. Rebecca jumps in with a point: “The World Cup is a classic example, right. Prior to the [South African 2010] World Cup the media was reporting that something like 50 thousand women would be trafficked to South Africa for sex work. If you trace articles and news stories around other major sporting events like the Olympics and the World Cup in Rio, the same sorts of statistics are circulated.” Yet not one single case of human trafficking was reported during the South African World Cup. It’s very clear that these statistics are hugely exaggerated, even if you consider that not every case gets reported.
Thea goes on to elaborate “when people say maybe we just haven’t found [victims of trafficking] there are two issues: the first is that there are a huge amount of resources and energy poured into research with sex workers and with migrant labourers and still so few cases have been identified. It’s not as though in those spaces there’s no one doing research, so it’s unlikely that there’s potentially a massive illicit trade that we don’t know about. The second thing is, even if there is a massive trade of people that we don’t know about, we don’t know about it. Parliament shouldn’t be legislating when there is no solid evidence. When you legislate on ideas and myths without evidence, you have all your police out there looking for trafficking victims where there might not be any.” This is leads to a massive misuse of resources.
The problem comes in when powers-that-be make important decisions around policies in South Africa based on this inaccurate data. For example, Home Affairs, when bringing about the policy that required parents to travel with children’s unabridged birth certificates when leaving or entering South Africa, used these inflated human trafficking figures to justify their policy. Following challenges to these claims around trafficking figures as well as a drop in travellers coming to South Africa due to the inconvience the policy created, the policy has been repealed.
ILL LOGIC POLITICS
In the face of a lack of evidence, how did the act get passed? Thea offers an explanation: “The US in its role of the global watch-dog has really taken on human trafficking as its call to action. Globally, the State Department releases reports on human trafficking every year and ranks every country in the world according to their response to human trafficking. If we fall to tier three, which is the lowest rank, there’s potential for the US to suspend all aid….The US has definitely been involved in creating the pressure to legislate the act. South Africa also signed the Palermo Protocol on Human Trafficking, which is the UN’s protocol, in 2004. South Africa does have an image of being a human rights A-star child and a country that always endeavours to implement the right legislation. Once you’ve ratified the Palermo Protocol, you’re required to then generate this legislation. In a sense the act is a ticking of a box to fall in line with our country’s reputation.”
While the pressure from the US was instrumental, it is only part of the pressure leading to the act South African NGO’s, like Salvation Army and Molo Songololo, were just as influential as they are the ones that continue to spin the argument around high numbers of trafficking victims and misinterpret what the actual act defines trafficking to be. This can also be seen in the open letter to President Jacob Zuma from Madlala-Routledge; head of the Coalition Against Trafficking in Women South Africa and its Embrace Dignity Campaign in which she pleads “Mr President, South Africa must not become a pimp state.” The pressure from these NGO’s draws very strongly on moralisation and the idea of ‘saving’ victims – whether they want to be saved or not. Exaggerating these statistics and misinterpreting the trafficking definition greatly undervalues the impressive work these organisations have done in their fight for human rights.
Part of the problem with the evidence debate is that because media labels things as ‘trafficking’ when it’s actually a case of exploitation or abuse (terrible in and of itself), you get hundreds and thousands of Google results for this supposed problem in our country. But follow any of these stories and you’ll likely find the case doesn’t even make it to court.
Rebecca points out “Ironically, in March 2016 there was clear and legitimate case of 200 Zimbabwean women trafficked to Kuwait for domestic exploitation – and yet this story hasn’t hit mainstream media.” Of those who have been arrested and charged with trafficking is a former Kuwaiti ambassader to Zimbabwe. Given that Kuwait, like other Middle Eastern countries, has a notoriously bad track record when it comes to migrant labour and has yet to sign up to a number ofUN Human Rights Treaties, the UN seem have held held back on this case. The onus therefore has fallen on the Zimbabwean government to find the missing women and bring them back home, while shouldering the financial burden of their ‘rescue’. It has been reported that about half of the women have been returned but are still looking for the rest.
SEX WORK vs HUMAN TRAFFICKING
Rebecca illuminates on why differentiating sex work and human trafficking is vital: “The reason it’s so important to distinguish between sex workers and victims of human trafficking is that if you don’t, then you remove the power from the sex worker and you assume that he or she is a victim. You assume that they aren’t doing what they do by choice. Sex work is criminalised in South Africa so sex workers already face huge vulnerabilities, high levels of abuse and violence, structural and social discrimination and no access to support”. She goes on “migrant sex workers in particular are vulnerable to being arrested by the police. For example, they can be arrested for carrying condoms as this is used as evidence that an individual is selling sex. The impact of this is that a sex worker will carry no more than 3 condoms with him or her to avoid being arrested and yet this of course increases their vulnerability as it means if they have more than three clients they may have unprotected sex. Therefore, the way we currently treat sex workers as criminals means we not only force them to face many forms of violence but create risks that are not inherently about selling sex but rather about the context of criminalisation. Therefore, the sex worker conversation should be taking us is to decriminalisation, not to human trafficking.” By failing to differentiate between sex work and human trafficking, we are detracting from an incredibly important conversation around decriminalisation of sex work in South Africa while fuelling the sensationalism of a non-so sensational topic.
“By criminalising sex work, you’re not going to get rid of sex work; you’re just making it more dangerous for sex workers, so decriminalisation is the only logical solution.” insists Rebecca. In reference to other models that have been adopted by other countries and are often suggested as exemplars for South Africa, Rebecca and Thea are clear that decriminalisation remains the best option. For example, if you take the Swedish model were the client is criminalised Rebecca argues; “You’re not empowering the sex worker by criminalising the client; you’re simply making the job harder and increasing the risks faced by the sex worker”. She also points out “Legalisiation, the model they have in the Netherlands, is where sex work is controlled by the government in certain designated areas. The police would have levels of control over those spaces, allowing them to come in and check documents or impose health checks.” Sounds alright, what’s wrong with that? “The trouble is, it’s removing certain levels of human rights, isn’t it? You shouldn’t be forced to undergo health checks. It’s incredibly dis-empowering to the people who choose that line of work.” says Rebecca.
Thea adds: “In a case like South Africa migrants turn to sex work because you don’t require any documents and you can fly under the radar. With legalisation you would still have a whole illegal sex- trade going on under the surface so it’s counter-productive. And the other problem is, once you have legalisation, it brings up all sorts of problems that people go into sex work in order to avoid; for example you have to work in a certain zone, you have to apply for permits and register your brothel, which all costs money. If you’re a sex worker, you want to keep your costs low and not necessarily spend that money.”
Rebecca concludes “as long as the control relies on the authorities, you’re still creating a situation which perpetuates discrimination. Decriminalisation, though, removes all sex-work specific regulation, so sex work would be treated as any other kind of work. It would still be regulated the same way any other business is regulated but it’s not regulated with specific rules around sex work. To me, this is the only obvious solution.”
If we had to decriminalise sex work in this country, and we really did have a human trafficking problem, we’d actually be empowering the sex workers to work alongside the police to identify and successfully prosecute traffickers. Decriminalising sex work doesn’t mean that you would suddenly have hundreds and thousands more sex workers – you would instead just be making it safer for those who are involved and ensuring that their human rights are protected and respected.
A MORAL DIALEMA
Similarly to human trafficking, the biggest argument around sex work is morality. That’s what drives the discussion and ultimately drives legislation. Rebecca goes on to explain “What’s frustrating about discussions around whether or not sex work will be decriminalised in South Africa is that you hear ministers saying it will never happen because government would need public consensus and support for this legislation. However, if you think of other acts in South Africa, like same-sex marriages; this was not likely supported by the majority of South African citizens and yet the government deemed this a human right. But the same isn’t said for sex workers.”
Enter the issue of the exaggerated trafficking statistics in media reports – this pulls the wool over our eyes and keeps us misinformed about the real issues we face in South Africa. We, as a people cannot be expected to rally behind something as important as decriminalising sex-work when we’re fed the wrong information or no information at all. Thea goes on to say “It’s a case of human rights vs what the majority of the population want. In a constitutional democracy what this actually means is that your human rights should prevail. It doesn’t matter what 90% of the population think anyway.”
What is human trafficking pulling us away from discussing? What are we not talking about because of the noise the topic of human trafficking creates? As Rebecca puts it: “It’s not as sexy to talk about how farmers are exploiting their workers or that minimum wage is disgustingly low”.
“Trafficking is great example of arm-chair activism.” adds Thea. “Unlike exploitation or paying your domestic worker properly, you don’t constantly come into contact with human traffickers so you don’t have to analyse your own behaviour – I’m fairly certain I’m not a human trafficker, right, it’s a very clear line to draw. If I benefit from exploitative labour practices, for example, something far more complicated where there’s no clear line and where I have to start examining my own behaviour, it becomes much less convenient. The other thing is, there’s very little to actually do [about human trafficking]. There are a few shelters you could run for trafficking victims but, other than posting things on social media or attending a march, there isn’t much you can really do to end the trade of a person.” In a country rife with conflict and chaos, we have fatigue around examining our own behaviour so it’s very easy and much more convenient to have this currency of a social conscience from the comfort of our homes.
What’s so important is that we draw a distinction between sex work and human trafficking, and then take those two discussions in separate directions. Regarding human trafficking, we need to stop sensationalising the concept; we need to actively question statistics around trafficking and not use it as blanket term to encompass exploitation, especially in the media. The conversation around sex work meanwhile should be directed at recognising that our current model simply isn’t working and we need to push for decimalisation.
No one denies that even just one case of human trafficking is incomprehensibly shocking, but irresponsible journalism and exaggerated statistics are the antitheses of what we need to equip ourselves with the right tools to save that one victim. As consumers of news and media, should we not endeavour to seek the truth, rather than simply accept what is plausible? Perhaps the most important approach to any social issue is that of human rights. Even if you don’t agree with a decision a person makes regarding their work or lifestyle, human rights should always trump opinions.