[Bill-Watch] Bill Watch 1/2014 of 8th January [Anti-Trafficking in Persons Regulations Gazetted]

[Veritas Bill Watch]

BILL WATCH 1/2014
[8th January 2014]
Both Houses of Parliament are in Recess until Tuesday 19th November
Anti-Trafficking in Persons Regulations Gazetted under Presidential Powers
(Temporary Measures) Act
On 3rd January, in Statutory Instrument 4/2014, the President gazetted the
Presidential Powers (Temporary Measures) (Trafficking in Persons Act)
Regulations.  These regulations are designed to give temporary legal effect
in Zimbabwe to Zimbabwe's obligations under the United Nations Protocol to
Prevent, Suppress and Punish Trafficking in Persons, Especially Women and
Children [commonly known as the "Palermo Protocol" and referred to as such
in the rest of this bulletin]. [SI available.  See addresses at the end of
this bulletin.]
Commencement of regulations
Apart from two provisions, the regulations came into force immediately, i.e.
on 3rd January.  The President will bring the remaining two provisions into
force later, on a date to be fixed by him by statutory instrument.   [See
further below.]
Period of validity of regulations
Being a temporary measure only, the regulations will be in force for a
maximum of 180 days, i.e., until midnight on 2nd July 2014.  Section 6 of
the Presidential Powers (Temporary Measures) Act, under which the President
made the regulations, lays down that regulations made under the Act "expire
and cease to have any effect immediately before the 181st day following
the(ir) date of commencement".   
Follow-up Bill essential  
To ensure the continuity of anti-trafficking provisions in our law, the
Government will have to introduce a Bill for a Trafficking in Persons Act to
replace these regulations - and the Bill will have to be brought to
Parliament in time for it to be passed by both Houses of Parliament and be
gazetted as law on or before 2nd July. 
Why Temporary Measures instead of an Act of Parliament?
The preamble to the regulations claims that the regulations are so urgently
needed that it is "inexpedient to await passage through Parliament of an Act
to deal with" the situation.  
Comment:  The urgency is self-created.  Parliament approved the Palermo
Protocol in July 2012.  But the Government failed to follow this up
promptly, and Zimbabwe's instrument of accession to the protocol was not
deposited until 13th December 2013, which means that the protocol will
become binding on Zimbabwe with effect from 12th January 2014.  
This extraordinary delay is regrettable and will need to be explained to
Parliament by the responsible Ministers [Home Affairs and Foreign Affairs].
Preparations for giving effect to this important international agreement
have been under way for years, and the necessary draft Bill was prepared
long ago.  The President told Parliament in 2011 that the Bill to
domesticate the protocol would be presented during the 2011-2012 session.
This did not happen, but when obtaining Parliament's approval of the
protocol in July 2012, the then co-Minister of Home Affairs Theresa Makone
told the Senate that she would be back with the necessary Bill during the
forthcoming 2012-2013 Parliamentary session.  [See Bill Watch 27/2012 of
18th June for notes on the protocol.]  
The Government will now be able, however, to claim progress when next
reporting to the UN Human Rights Committee, something likely to fall due
before a Bill can be taken through Parliament.
What the Regulations Say
The regulations are a hasty and slightly awkward adaptation of a draft Bill
for the eventual Act.  
Provisions that are in force from 3rd January 2014  
After a brief two-paragraph preamble citing the enabling Act, section 1 of
the regulations states the title of the regulations as set out in the first
paragraph of this bulletin.  Thereafter, without any real explanation, there
is set out the text of a Trafficking in Persons Act consisting of a
preamble, ten sections and two schedules.  The Second Schedule sets out the
text of the Palermo Protocol, without satisfactorily explaining whether it
constitutes substantive Zimbabwean law or, which is more likely, has been
included only for reference purposes or for assisting courts and
administrators in interpreting the provisions of the Act.
Definitions  Section 2 of the Act sets out definitions.
New offence of trafficking in persons  Section 3 of the Act, a long and
detailed provision, creates this new offence using words which adapt those
of the definition of "trafficking in persons" in the Palermo Protocol.  The
object is to create a specific offence for enforced or coerced exploitation
of persons for purposes of prostitution or other forms of sexual
exploitation, forced labour and similar practices.  Trafficking covers not
only transporting of individuals but also acts of recruitment, harbouring
and receiving of victims and  related conduct such as tampering with
identity or travel documents and production of false documents.  Internet
service providers operating in Zimbabwe must not allow any on their servers
any sites that contain information promoting trafficking.  Both cross-border
and internal or domestic trafficking is covered; this is important, as
trafficking is both a cross-border and domestic problem.
Factors which do not constitute a defence  It is no defence to a charge of
trafficking that the victim - or his or her parents or guardians -
consented, or that the victim had engaged in prostitution or pornography, or
that what was done was permitted by customary or religious practice.
Penalties  Mandatory penalties on conviction require a sentence of at least
ten years' imprisonment or life imprisonment, where the crime is committed
in "aggravating circumstances" [comprehensively defined] - unless there are
special circumstances [not defined].  Where there are no aggravating
circumstances or where the court finds special circumstances, the maximum
penalty is a fine of $5000 of imprisonment not exceeding ten years.   
Powers of law enforcement agencies  Section 4 lists the powers of law
enforcement agents, upon reasonable suspicion, to stop any person and vessel
and question any person to determine whether he or she is a trafficker or
involved in trafficking.  Premises and vessels may also be searched.
[Comment: The unexplained use of the term "vessel", in the absence of
references to other modes of transport, is likely to cause difficulties in
application and interpretation.]
Protection and compensation of victims  Section 5 provides for the
protection of victims by making applicable to victims of trafficking the
existing statutory provisions for protection of vulnerable witnesses and the
protection of privacy, reputation and other rights.  Also made applicable on
conviction of a trafficker are existing provisions for compensation of the
victim for property loss or damage, physical or psychological injury and
loss of income or support.
Forfeiture of proceeds of trafficking  Section 6 makes the confiscation and
forfeiture provisions of the new Money Laundering and Proceeds of Crime Act
applicable to convicted traffickers.
Extraterritorial jurisdiction of Zimbabwean courts  Section 7 makes
comprehensive provision for Zimbabwean courts to try crimes of trafficking
in persons even if committed outside Zimbabwe; for example: 
.        a Zimbabwean citizen or ordinary resident of Zimbabwean may be
tried in a Zimbabwean court even where he or she has committed the crime
outside Zimbabwe
.        a Zimbabwean court may try a Zimbabwean citizen or ordinary
resident for the crime of trafficking of persons, wherever the crime was
committed.
Provisions to be brought into force later
Sections 8 and 9 of the Act are to be brought into force later, presumably
when the Ministries concerned are in a position to complete the necessary
administrative arrangements and have been allocated the necessary financial
resources.
Centres for victims  Section 8 obliges the Minister of Labour and Social
Services to set up centres for victims of human trafficking, providing such
services as counselling, rehabilitation, reception and  care.  There must be
at least one centre per province.
Inter-Ministerial Anti-Trafficking Committee  Section 9 provides for the
eventual setting-up of an inter-Ministerial committee, with largely
advisory, educational and information-gathering functions.  Detailed
provisions for the functioning of the committee are made in the First
Schedule.
General Comment
If these regulations are an indication of the proposed contents of the Bill
that must come to Parliament, that Bill is going to need some improvements.
It is to be hoped that the responsible Ministry and Parliament will allow
ample time for interested parties to make the necessary representations,
taking due account of the need to have a permanent substantive Act in place
by the middle of this year .
Documents Available from Veritas
[see addresses below]
.        SI 4/2014 - the regulations discussed in this bulletin
.         Palermo Protocol 
.         Presidential Powers (Temporary Measures) Act
 
Veritas makes every effort to ensure reliable information, but cannot take
legal responsibility for information supplied
To subscribe or unsubscribe from this mailing list please email
<mailto:veritas at mango.zw> billwatch at mango.zw
If you wish to contact Veritas please email  <mailto:veritas at mango.zw>
veritas at mango.zw 
If you are requesting legislation please email  <mailto:veritas at mango.zw>
veritas at mango.zw or look for it on  <http://www.veritaszim.net>
www.veritaszim.net
-------------- next part --------------
An HTML attachment was scrubbed...
URL: http://mail.veritas.co.zw/mailman/public/bill-watch/attachments/20140109/53fe0986/attachment.html