by

AJIBOLU AFOLABI, LL.B, B.L, PRINCIPAL STUDIES FELLOW, STUDIES DEPARTMENT, NATIONAL JUDICIAL INSTITUTE, ABUJA (EMAIL: ajibolabi@yahoo.com, ajibolabi84@gmail.com.)

&

AKA FANEN, B.A. (FRENCH), PRINCIPAL RESEARCH FELLOW, RESEARCH DEPARTMENT, NATIONAL JUDICIAL INSTITUTE, ABUJA (EMAIL: faxrule@gmail.com )

 

INTRODUCTION

The new form of modern day slavery otherwise known as human trafficking is estimated to be a $150 billion global industry with Nigeria ranked 38 out of the 160 countries with the highest number of slaves, according to the 2023 Global Slavery Index. The National Agency for the Prohibition of Trafficking in Persons (NAPTIP), reported in 2021 that women who are eighteen years and above are the highest number of trafficked persons in Nigeria, which maintains its posture as a Tier 2 country on the United State of America State Department’s Trafficking in Persons Report (2022).

This rampant menace of human trafficking cuts across Nigeria’s neighbouring nations – Niger Republic and Chad to the North, Benin Republic and Togo to the East, Cameroon and Equatorial Guinea to the South. These countries not only serve as trafficking routes but also serve as countries of origin, transit and destination for victims of human trafficking within the West African sub region. These, coupled with the general factors that increase vulnerability to trafficking in Nigeria such as extreme poverty, lack of economic opportunities, corruption, conflict/insecurity, climate change which invariably led to irregular and dangerous  migration have resulted in an even more distressing dimension of human trafficking. There have been series of declarations, conventions, bills of rights, charters and other statutes both at the international and domestic levels prohibiting trafficking in human beings, yet this crime goes on.

Nigeria has ratified and is a signatory to a number of international conventions which are directly or indirectly related to trafficking. Some of which include- The United Nations Universal Declaration of Human Rights; Forced Labour Convention, 1930; Worst Forms of Child Labour Convention (no. 182) 1999; the Convention on the Rights of the Child; Convention on the Elimination of all Forms of Discrimination Against Women (CEDAW); African Charter on Human and People’s Rights; ECOWAS Declaration and Plan of Action Against Trafficking In Persons (2001). There is also the Memorandum of Understanding between Nigeria and Republic of Benin on cross-border crimes, smuggling, human trafficking and drug trafficking, signed on 14th August, 2003, which mandates parties to the Memorandum of Understanding to collaborate on sharing information and delegating resources to fight cross-border crimes particularly human trafficking and drug trafficking. However, in light of the ECOWAS Declaration and Plan of Action against Trafficking in Persons which ECOWAS States signed in the year, 2001; it became imperative for ECOWAS member states to create special units to combat human trafficking in the region, thus NAPTIP was established by the Trafficking Act of 2003.

It is on record that Nigeria is the first African country to enact a specific anti-human trafficking law. Nevertheless, prior to the passage of the Trafficking in Persons (Prohibition) Law Enforcement and Administration Act, 2003, Nigeria did not have specific anti-human trafficking law explicitly set aside to combat human trafficking. Similarly, before the enactment of the Child Rights Act in 2003, Nigeria had no comprehensive special law protecting the rights of children, noting however, that children are vulnerable and largely fall victims of human trafficking.

  • THE LEGAL FRAMEWORK FOR COMBATING TRAFFICKING IN PERSONS (TIP) AND SMUGGLING OF MIGRANTS (SOM) IN NIGERIA

Several other laws provide for the prosecution of trafficking in persons, for clarity some of these laws are reproduced as follows:

In light of the discussion above, it is important to further shed light on the provisions of the Constitution of the Federal Republic of Nigeria, 1999 (as amended); which contains provisions which clearly outlaw slavery and forced labour or compulsory labour, sexual exploitation and deprivation of personal liberty of Nigerians (see Sections 17, 34 and 42 of the Constitution of the Federal Republic of Nigeria, 1999 (as amended). These relevant constitutional provisions which outlaw forced labour and slavery are very unambiguous.

In addition, it is interesting to note that a victim or victims of trafficking can challenge the infringement of the above mentioned rights under Section 46 of the 1999 Constitution (as amended). Section 46 states that “any person who alleges that his or her fundamental human rights has been or is being or likely to be contravened in any State in relation to him may apply to a High Court in that state for redress”. Also, Section 254C (1) (i) of the Third Alteration of the Constitution provides that the “…National Industrial Court shall have and exercise jurisdiction to the exclusion of any other court in civil causes and matters – connected with or related to child labour, child abuse, human trafficking or any matter connected therewith or related thereto”.

 

In discussing the Criminal Code, there are various provisions against ‘slave dealing’ which could be used to prosecute trafficking in persons and prostitution. Section 223 provides that: “Any person who – (1) procures a girl or woman who is under the age of eighteen years and is not a common prostitute or of known immoral character to have unlawful carnal connection with any other person or persons, either in Nigeria or elsewhere, or (2) procures a woman or girl to become a common prostitute, either in Nigeria, or elsewhere; or (3) procures a woman or girl to leave Nigeria with intent that she may become an inmate of a brothel elsewhere; or (4) Procures a woman or girl to leave her usual place of abode in Nigeria, with intent that she may, for the purpose of prostitution, become an inmate of a brothel, either in Nigeria or elsewhere; is guilty of a misdemeanor, and is liable to imprisonment for two years.”

 

Section 224 further provides that any person who by threats, intimidation, false pretense or by administering drugs, with intent to stupefy or overpower a woman or a girl or girls in order to enable any man to have unlawful carnal knowledge of her is guilty of misdemeanor and is liable to imprisonment for two years. Sections 365, 366 and 369 of the criminal code cover the field with regard to some of the main methods of intimidation used by traffickers. For instance: Section 365 deals with unlawful confinement or detention against a person’s will while Section 366 covers compelling someone to do something by threats, surveillance or other intimidation and is punishable by one year imprisonment.

The Criminal Code in Section 369 of the Criminal Code outlawed slave dealing and defined same as purchasing, selling, dealing with or transferring persons so they may be treated or held as slaves or placed in servitude as a pledge or security for debt or entering into a contract or agreement in furtherance of these purposes. This is punishable by imprisonment for up to fourteen (14) years under the criminal code.

The Penal Code which is applicable in the Northern States has similar provisions to the Criminal Code, with the term “trafficking” not however expressly defined. The term ‘slave’ is used and the relevant sections are Sections 275, 278, 279, 280.

The Nigeria Immigration Act, 2015 prohibits all forms of smuggling of illegal migrants. The Act also gives effect in the Federal Republic of Nigeria to the provisions of the Protocol Against the Smuggling of Migrants by Land, Sea and Air, thereby supplementing the United Nations Convention Against Transnational Organised Crime. Relevant sections are as follows: S. 64 which prohibits all forms of smuggling migrants in Nigeria, S. 65 creates a number of offences relating to SOM, S.66 prohibits the abuse of the vulnerability of the smuggled migrant, S. 67 proscribes enabling illegal residence, S. 68 proscribes the procurement of fraudulent travel or identity documents, Aiding and abetting of smuggling migrants is captured under Ss. 69 & 70; while escape and aiding and abetting escape is under Section 73.

The Child’s Rights Act, 2003 prohibits the exposure of children to the use, production and trafficking of narcotic drugs under Section 25, while section 26 generally prohibits the use of children for criminal activities of whatever nature. The penalty for breach is fourteen (14) years imprisonment. All forms of sexual abuse and exploitation of children below the age of eighteen (18) years are equally prohibited by Sections 31 – 32 of the Act. Sanctions include life imprisonment and fourteen (14) years imprisonment respectively.

  • TRAFFICKING IN PERSONS (PROHIBITION AND ENFORCEMENT) ADMINISTRATION (TIPPEA) ACT, 2015

 

In view of the need to combat human trafficking and the illegal smuggling of migrants, amendments were introduced to the Trafficking Act of 2003 in 2005 and the 2005 legislation has now subsequently been modified vide the TIPPEA 2015. The recent amendments enable relevant agencies to exercise some powers to rescue victims of human trafficking both within and outside Nigeria. In addition, the recently enacted Trafficking in Persons (Prohibition and Enforcement) Administration (TIPPEA) Act, 2015 provides for the role of the judiciary in combating human trafficking as well as giving powers to NAPTIP aimed at combating human trafficking and the illegal smuggling of migrants.

Sections 1, 2, 3, 4, 5, 6, 7, 8, 9, 10 and 11 of TIPPEA, 2015 address the powers, functions and administration of NAPTIP. The Act established different departments comprising investigation, legal, public enlightenment, counselling and rehabilitation, as well as other relevant units within NAPTIP to enable the agency carry out its functions effectively. As regards investigation and prosecution, Section 6, subsection (a) of TIPPEA, 2015 empowers NAPTIP to investigate whether any person, body or entity has committed an offence under the Act or the offence of trafficking under any other law. By virtue of Section 6, subsection (c) of the TIPPEA, 2015; and without prejudice to the powers of the Attorney General of the Federation (Sections 174 and 211 of the Constitution of the Federal Republic of Nigeria 1999 (as amended) to discontinue proceedings, NAPTIP is empowered to arrest, detain and prosecute offenders under the Act or any other law on trafficking in persons in Nigeria.

According to Section 36 of the Act, it confers on the High Court, jurisdiction to try and punish all offences created under it and Section 82 defines Trafficking or traffic in persons as ‘the recruitment, transportation, transfer, harbouring or receipt of persons by means of threat or use of force or other forms of coercion, abduction, fraud, deception, the abuse of power of a position of vulnerability or the giving or receiving of payments or benefits to achieve the person having control over another person or debt bondage for the purpose of placing or holding the person whether for or not in involuntary servitude (domestic, sexual or reproductive) in forced or bonded labour, or in slavery-like conditions, the removal or organs or generally for exploitative purposes;”

  • INNOVATIVE ROLES OF THE JUDICIARY UNDER TIPPEA, 2015

Generally the judiciary is conferred with the constitutional responsibility of interpretation of the law vide section 6 of the 1999 Constitution (as amended) however, there are roles assigned to the judiciary under the TIPPEA, 2015. Additionally, Judges in line with constitutional provisions have the powers to grant or refuse bail applications (see section 36 (5) 1999 constitution (as amended). Furthermore, it is trite to note that the innovations of the TIPPEA, 2015 have gone a long way in combating the crime of human trafficking. For example, the innovative provision for witness protection under the TIPPEA 2015 encourages witnesses especially persons who have been trafficked, to come forward to give their testimony in court against traffickers.

In addition, there is a novel innovation of the Act which must not be ignored and this is the aspect of the creation of a victims’ trust fund. This innovation is novel as assets of persons convicted of human trafficking are forfeited to the state and its proceeds used to cater to victim(s) of human trafficking. Consequently, it is important to adumbrate some of these innovations of the TIPPEA 2015; and also highlight the powers given to judicial officers under the Act. These innovations are (but not limited to):

  • Witness protection private proceedings to be managed by the judge (see Section 47 TIPPEA, 2015)
  • Forfeiture of asset to victims’ trust fund (see Section 67 and 68, TIPPEA, 2015)
  • Adoption of measures to avoid delays and abuse of court process (see section 37 TIPPEA 2015)
  • Adjudicate over requests from foreign states for mutual legal assistance (see Section 69 TIPPEA, 2015)
  • Sentencing which is the judgment of a court is also the exclusive preserve of judges and is a constitutional role of judges not just in TIP/SOM cases but generally in criminal cases. Under the TIPPEA 2015, where any person is convicted of an offence under the Act, any punishment which the court imposes in passing its sentence must equally be accompanied by an order of forfeiture to the Victims of Trafficking Trust Fund, the properties which facilitated the commission of the offence or properties acquired with proceeds of any unlawful activity under the Act. (Section 36 (2) TIPPEA 2015).
  • Furthermore, where it is established that any convicted person has assets or properties in a foreign country, acquired as a result of any of the offences under the Act, such assets or properties subject to any treaty or arrangement with such foreign country, shall be forfeited to the Victims of Trafficking Trust Fund (See section 50 (1) TIPPEA 2015).
  • Interim attachment order after seizure of property (see Section 55 TIPPEA, 2015)
  • Final order of forfeiture (see Section 56 TIPPEA, 2015)
  • Freezing order on banks or other financial institutions. (see Section 60 TIPPEA, 2015)
  • RECOMMENDATIONS

With the above innovative roles of Judges as per the TIPPEA 2015, it is important to note that there is more to be done on the part of judges in protecting trafficked persons. These recommendations are based on provisions under the TIPPEA 2015 which though not expressly stated as responsibilities of judges, should be taken up by Judges to ensure effective implementation of TIPPEA, 2015 and delivery of substantial justice to victims. It is therefore recommended that Judges should:

  • ensure that trafficked persons and smuggled migrants should be assisted with information on relevant administrative and court proceedings (see Section 63 TIPPEA, 2015),
  • ensure adequate protection for particularly vulnerable victims such as children, disabled persons, victims of sexual abuse and so on ( 61 and 62 TIPPEA 2015)
  • in smuggling cases; inter alia: provide for some special rights of smuggled migrants (Ss. 61 and 62 TIPPEA 2015)
  • ensure the protection of victims of smuggling cases from reprisal, intimidation or threat,
  • ensure that the rights of trafficking victims to compensation or restitution by the trafficker are protected (section 65 TIPPEA 2015)
  • objectively assess trafficking cases devoid of technicalities
  • CONCLUSION

The menace and ills of human trafficking have been brought to the knowledge of the average Nigerian on the streets via awareness and sensitization campaigns carried out through the media and consultative forums between stakeholders and communities. The judiciary plays a vital role in this fight against human trafficking and should be encouraged to ensure that incidences of human trafficking in Nigeria are brought to the barest minimum if not completely eradicated. Finally, it can be deduced that the innovations of the TIPPEA 2015 are novel and same will encourage speedy dispensation of justice for victims of human trafficking.

 

NOTE: The section on legal Briefs is a forum for frank and open scholarly notes by research staff and guest contributors. Views expressed in these notes are personal to the authors and are not to be attributed to the Centre.

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