“A 19-year-old male who was missing on the 1st of November was found in Dar es salaam, Tanzania. His case was followed by three other cases of missing persons all of which have been solved. However, it is of no doubt that this threatens the safety of Malawians across the nation as taxis have become popular means of transport.”1
From a legal perspective, the above case may fall within offences that are covered under the Trafficking in Persons Act, 2015 (TIPA).2 Human trafficking has been a growing problem both at national and international level. People are trafficked for a number of purposes depending on age and sex. An example would be the killing and trafficking of persons with albinism. 3 According to the Malawi Law Commission report of 2011, men are trafficked to work in tea and tobacco estates, women for domestic and sex work, and children for cattle herding and looking after estates. 4 In more recent years, there have been an increased number of cases and reports of persons with albinism being trafficked for purposes of organ removal. Poverty, beliefs and harmful cultural practices could be considered as some of the social-economic factors which have attributed to the increased trafficking in Malawi.
Malawi ratified the United Nations Convention against Transnational Organized Crime (UNTOC, also called the Palermo Convention) to prevent, suppress and punish trafficking in persons especially women and children. In complying with this international objective, Malawi enacted the Trafficking in Persons Act.
It must be mentioned that human trafficking is not a direct offence as it involves a series of events which may include; recruitment, transportation, transferring, harbouring and receiving, and the eventual exploitation of victims. Human trafficking is not an offence if it 5 does not end into exploitation. Section 2 as read together with section 14 of TIPA 6 defines trafficking in persons as an offence. The definition consists of four elements, the act element, the means element, the end –result element and the victim element.7
The ‘act element’ involves recruiting, transporting, transferring, harbouring, receiving or obtaining a person within or outside Malawi. This is the preamble of the processes of human trafficking and it can be done by one or more persons. The act element mentioned are distinct from each other and commission of each avails. The ‘means element’ considers the ways in which victims have been transported, transferred or obtained. More specifically,
this includes through means of threat, force, coercion, abduction, fraud or deception, threats of abuse of office or position, threats of abuse of position of vulnerability, threats of abuse of law or legal process, giving or receiving
of payment to obtain consent of a person having control of the person. The ‘end result’ element on the other hand is the exploitation of the trafficked person. This considers whether the person who has been transported through force or deception has been used for exploitation.
Exploitation includes ; forced labor, forced participation in all forms of commercial sexual activity for example prostitution, removal of body parts or extraction of organs or tissues or any other practice which can be said that the person did not participate willingly.
At an international level a person may still be a victim of human tracking even though she or he did not suffer the end result or exploitation, as long as it can be proven that there was transportation or recruitment through
use of force for exploitation purposes. 8
In summary, what recently happened consists of the two first elements of human trafficking. That is the act element through transportation and the means element through deception, perhaps force or threat may suffice. Based on the facts we have about the case of the 19-year-old male, it is not clear whether or not any form of exploitation happened or was premeditated. There is a possibility that the case may fall under the offence of abduction as provided for in section 259 of the Penal Code. Under this section a person commits an offence of abduction if he or she forcibly compels or uses deceitful means to induce another person to move from one place to another against his or her will. The facts at hand only mentions that the 19-year-old male was transported against his will from Malawi to Tanzania where he was found, this suffices as abduction.
Food for Thought;
This calls for action, who was behind this? Are we going to keep silent as Malawians? This threatens the safety of Malawians; it may not seem like human trafficking today but what about those who are being trafficked and abducted in silence? What about those who are unable to voice out? Does our current law on human trafficking and abduction protect us and cover all possible elements of this threat?
- Zodiak Online, WhatsApp Media platforms, Facebook
- Trafficking in Persons Act, 2015
- Faith lex-lead paper
- R. Chizimba, G.malera and Malonda ,Malawi Law Commission, report of the law commission on the development of Human Trafficking in six selected districts of Malawi,2011
- DR. Lewis Bande, Criminal Law in Malawi
- Laws of Malawi ,2017
- See footnote
- Gallagher, The international law of human trafficking ,374