NAIROBI, Kenya Jul 2 – When police stormed an erotic bar in Mombasa, *Binsa was happy that rescue had finally arrived.
What she didn’t know was that she was saved from a perpetrator’s ‘cell’ into a legal cell, a classic application of ‘out of the frying pan into the fire.
Binsa’s sigh of relief turned into such a horrifying nightmare, that more than a year later, memories of the treatment she faced in a Kenyan police cell are fresh in her mind.
Her experience is similar to hundreds of other victims rescued from traffickers only to find themselves bundled into police cars straight into police cells, subjecting them to more trauma and anguish.
Binsa and 11 other women had been trafficked from Nepal and India under the guise of giving them jobs but on arrival in Kenya were forced to become mujra dancers to entertain male patrons who pay for services including sex against their will.
They were arrested in April 2019 and taken to Nyali Police Station sparking outcry of NGOs such as the Awareness Against Human Trafficking (HAART) which sued the government for the gross violation of the victims’ rights.
Unfortunately, police cells are the immediate and available option for the police when they rescue victims of human trafficking and related crimes.
“In cases where a child is for example, defiled by the father, the police have had to keep such victims within the police station or in some instances in the cell. They cannot return them home. They have been forced to keep also women who have come in- in the cells,” Judy Gitau, Equality Now’s Regional Coordinator for Africa explains.
“We also have instances where nurses -who have received victims and treated them – have had to take them home. We have a partner in Kisumu, as recently as two weeks ago, took a victim of rape to her own home, because where else do you turn her? Do you turn her to the street or back home where it is that she has been violated?”
Though Kenya’s progress in responding to human trafficking is commendable, existing structural and procedural gaps obstruct wheels of justice and lead to further violation of victims’ rights as well as create loopholes for traffickers to walk scot-free.
As a signatory to anti-human trafficking international conventions, Kenya is also obliged under the Counter-Trafficking in Persons Act 2010 to provide ‘appropriate shelter and other basic needs’ as well as ‘psychosocial support’.
However, the act has been criticized over staring gaps that further violate the victims’ rights and give perpetrators the leeway to escape justice.
The Act recommends 30 years of imprisonment and an option of paying a fine of Sh30 million watering down the seriousness of the organized crime.
With Kenya identified as a source, transit and destination of sex trafficking and forced labour, the Global Trafficking in Persons Report since 2015 to 2020 has ranked Kenya in the second tier – meaning that Kenya does ‘not fully meet the minimum standards for the elimination of trafficking but is making significant efforts to do so’
The dearth of state-run victim support services contribute to the poor ranking.
This is because legal and structural loopholes have exposed victims leaving them to be treated like criminals despite the horror suffered in the hands of their traffickers.
In an interview with Capital News, Director of Public Prosecutions Noordin Haji is expressing fears that over-reliance on partner organizations to provide shelters to victims, “is a big impediment in trying to deal with human trafficking especially protection of victims.”
“We tend to rely more on civil societies and other organizations like the United Nations. What we have seen in Kenya is a lot of people who are arrested are the victims themselves. The implication of taking the victims to a cell is traumatizing – it is basically removing them from one hard situation to another.”
Such a trend, Haji warns, runs into the risk of only disrupting a crime instead of going after the criminals and makes it ‘difficult for victims to cooperate’ reducing the chances of securing justice and dismantling local and international trafficking syndicates.
Without winning the trust of the victims, the DPP says, successful prosecution and conviction are difficult made worse by lack of adequate international cooperation in tracing the origin of the syndicates with deep and far-reaching roots.
Jacqueline Njagi, Senior Principal Prosecution Counsel who heads the Sexual Gender Based Violence Division at the Office of the Director of Public Prosecutions recalls an incident that occurred in 2019.
13 children trafficked from Somalia were rescued in Nairobi’s Eastleigh but the State had to grapple with “where to place them” until the court directed them to be taken to the Nairobi Children’s Remand Centre – a place set aside for children awaiting judgment over various crimes like murder, theft and loitering.
“The case was taken to the children’s court, but before that, the question was where they would be placed. After talks with colleagues, I contacted a private shelter, they were kept there but we had to use our own resources for them to be fed for four days until the court committed them to the Nairobi children’s remand home,” Njagi recalls.
The incident is similar to the Mombasa one in which the 12 women were arrested, taken to a police cell before the state found shelter and subsequently repatriated them.
Whereas it is easier to find shelters for children compared to adults, Trace Kenya Executive Director, Paul Adhoch, emphasizes on the need for Kenya to establish a solid legal framework to prioritize provision of shelters.
In the absence of a legislative framework, Adhoch is expressing fears that, private rescue centers – as much as they are willing to take in victims – face procedural hurdles that lead to delays or even rejection of victims due to concerns of legal and safety implications.
Due to such gaps, anti human trafficking bodies and state organs are forced to follow a lengthy legal process to have victims placed in shelters.
“For adult shelters there is a shortage, no crisis of availability of shelters for children. But what we have are children rescue centres used temporarily to hold victims. We use court orders to temporarily put them in shelters.”
Private CSOs that offer rescue centres on the other hand face capacity and resource challenges with a spike in the number of victims in need of shelters and safe houses.
Since the onset of COVID-19 in March 2020, Kenya has reported an increase in cases of violence against women, children and even men leading to sharp rise in the number of victims in need of protection.
The United Nations Office on Drugs and Crime (UNODC) is among the international organizations that have warned of an increase in the number of victims of human trafficking during the COVID-19 pandemic due to increased vulnerability.
“With COVID-19 restricting movement, diverting law enforcement resources, and reducing social and public services, human trafficking victims have even less chance of escape and finding help. As we work together to overcome the global pandemic, countries need to keep shelters and hotlines open, safeguard access to justice and prevent more vulnerable people from falling into the hands of organized crime,” says UNODC Executive Director Ghada Waly.
Gitau is worried that victims in need of escape to safety will continue suffering as most rescue centres are already overstretched.
“There is a huge gap in terms of providing shelter to victims exacerbated in the context of COVID-19 where we are seeing huge number of not just victims of human trafficking but sexual violence across the country. Majority of the shelters that exist are run by private entities and these shelters cannot handle the numbers.”
Most of the partner organizations relied upon by the Government of Kenya to offer shelters were set up to serve a variety of victims including orphans, SGBV, street children and among others child offenders.
This, according to Njagi, runs into the risk of not providing complete aftercare services which include security, healthcare, psycho-social support, integration of victims and provision of other basics such as food and clothing.
“It is time the government thought of having a safe house because private ones offer only shelter which is not all rounded. You find they have one component and lack another. Government must have all components,” Njagi advises.
According to Adhoch, such an arrangement will allow a seamless judicial process, “once you rescue a victim, you know where to take them and you are sure they will not be criminalized.”
Whereas CSOs’ and NGOs’ role is to complement, anti-human trafficking crusaders believe it should be the government’s primary responsibility to provide shelters to secure victims, witnesses and evidence as one of the crucial interventions in the fight against human trafficking.
Therefore, Gitau is urging the national and county governments to consider aftercare shelters as a concurrent function supported in budgetary allocations.
“A lot of times we feel that the national government’s duty begins and ends with the investigation and prosecution but how do you ensure that your victim as the main complainant in this case is able to come to court, how do you ensure that he/she is not being further violated even if the case is not in court?”
As a long-term measure in addressing human trafficking, Enhancing Africa’s Ability to Counter Transnational Crime (ENACT) Researcher, Mohamed Daghar is further advising Kenya and its East African counterparts to develop frameworks to address causative factors that increase vulnerability of victims, “legal protection and operational hindsight and also the socio-economic challenges East Africans face that make them vulnerable to trafficking networks. This translates to having a national employment policy in place.”
Judie Kaberia is a fellow of the Resilience Fund of the Global Initiative against Transnational Organized Crime