A CRITIQUE TO TANZANIA’S ANTI TRAFFICKING IN PERSONS ACT, NO. 6 OF 2008i : A QUEST FOR AMENDMENTS
Keywords:
TANZANIA’S, ANTI TRAFFICKING IN PERSONS ACT, NO. 6 OF 2008Abstract
This article offers an analysis of the law pertaining to Trafficking in Persons in Tanzania [hereafter ‘TIP’]. It offers suggestions for compliance with international standards where it has clear shortcomings, or to request reforms where it is in conflict or not in synchrony with other local statutes. The analysis is centred on the TIP Act No. 6/2008. The Act provides for the main legal regime criminalizing TIP acts in Tanzania. It basically provides for: crime prevention, perpetrator indictment, and victim protection. The article’s focus is on Tanzania Mainland, as well as Zanzibar, because the TIP Act is a union law that applies to both Tanzania Mainland and Zanzibar. The main conclusions drawn from the analysis point out that the TIP law is not effective enough to deter the commission of TIP crimes, nor does it adequately protect the victims of trafficking, and therefore it is appropriate that the law should be overhauled. This article begins with an introduction to Trafficking in Persons (TIP), then trafficking in Persons Profile in Tanzania, analysis of TIP Act no.6/2008, abridged summary of law-making process in Tanzania, recommendations on law amendment and Conclusions.
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References
i The Anti-Trafficking in Persons Act, Cap. 432 [Act no. 6 of 2008]
ii Protocol to Prevent, Suppress and Punish trafficking in persons, especially Women and Children,
Supplementing the united nation convention against transnational organized crime,
(2000) Art. 3 [hereinafter protocol], available at http://treaties.un.org/pages/viewdetails.aspx?mtdsg_no=xviii12-
A&chapter=18&lang=en.& section 4 of the anti-trafficking in Persons Act, No. 6 of 2008.
iii See Article 3(c) of Palermo Protocol.
iv See Article 3(b).
v United Nations Office on Drugs and Crime (UNODC), ‘Toolkit to Combat Trafficking in Persons’ (2nd edn
2008) ISBN 978-92-1-133789-1, Sales No. E.08.V.14, At 3; UNODC, ‘Legislative Guides for the Implementation
of the United Nations Convention against Transnational Organized Crime and the Protocols Thereto’ (2004) UN
Sales No. E.05.V.2, at 269.
vi See Article 5 of the Protocol.
vii UNODC; Combating Trafficking in Persons. A Handbook for Parliamentarians No. 16- 2009.
viii The United Nations Protocol against trafficking of Persons especially Women and Children (PALERMO
Protocol) Provide for minimum standards that its Member states’ TIP Penal statutes should meet. Among them
are the ‘Prevention of trafficking, Prosecution’ & Punishment of traffickers ‘and ‘Protection of Victims of
Trafficking in Persons. (4P’s).
ix See Articles 12,13, 14, 15,16,17
x See Article 64(5) of the Constitution of the United Republic of Tanzania, 1977 [Cap 2 R.E.2002].
xi See Article 9(2) of Palermo Protocol.
xii See Article 6 of the Protocol, and guideline 6 of the OHCHR Recommended Principles and Guidelines on
Human Rights and Human trafficking.
xiii Guideline 6(5).
xiv Article 6(2) of the Protocol.
xv Article 6(6) ibid.
xvi Article 6(3) ibid.
xvii Article 7 ibid.
xviii Article 8. Ibid.
xix Ibid.
xx See US Department of State. Human trafficking Global Status Report, June 2019.
xxi See IOM, 2016.
xii Mugambila Edwin., Barrick Kelle, Protection of Victims of Trafficking in Tanzania. Myth or reality? Submitted
for Publication in the Law School Tanzania Journal. 2019.
xxiii See US Department of State Report, Human Trafficking Profile in Tanzania, 2018.
xxiv Author was informed of this by the Police officer, INTERPOL Department, Ministry of home affairs, Dar es
salaam, Tanzania.
xxv Article 3(2) of the Convention.
xxvi See US Department of State Human trafficking Global status report June 2019.
xxvii See table 1.
xxviii Source: Anti trafficking Secretariat, Ministry of home affairs.
xxix An informant from one of the shelters informed.
xxx Ibid.
xxxi Source: office of anti-trafficking Secretariat, Ministry of Home affairs Headquarters.
xxxii This fund is established under Part V of the ant-trafficking in Persons Act.
xxxiii Anti-trafficking in Persons Fund is a special fund established under Part V of the ATiPA to finance anti
trafficking activities coordinated by the anti-trafficking in Persons Secretariat.
xxxiv Section 26 of the Act.
xxxv Section 27.
xxxvi Op.cit at footnote 28.
xxxvii There is a slew of fraudulent means used by traffickers or their agents to win the potential victims’ consent.
The most common means used is ‘Promising jobs with high pay’, ‘Promise of taking them to good schools’, ‘nice
food’, ‘nice clothing’ and many other favors which never materialize.
xxxviii International Organization for Migration (IOM). Dynamics of Trafficking in Persons in Tanzania. Study
Report, 2016.
xxxix RTI International. Trafficking in Persons Training Modules for law enforcement officers, Magistrates and
Prosecutors in Dar es salaam, Zanzibar & Mwanza. February 2018, March 2019, & August 2019.
xl Ibid.
xli Ibid at footnote 37.
xlii See Section 12 of Sexual Offences Special Provisions Act, 1998 (hereinafter SOSPA).
xliii Section 148 of the Penal Code [CAP 16 R.E. 2002].
xliv CAP 16 R.E. 2002 read together with Section 12 of the SOSPA.
xlv Ibid at footnote 14.
xlvi Forced labour is a crime under Section 6 and Section 102(2) of Employment and Labour Relations Act. It is
punishable to fine not exceeding five Million shillings or for Imprisonment for a term of one year or both
xlvii Kamazima, S. R Human Trafficking Baseline Assessment in Tanzania: Findings from Selected Regions,
National Aids Control Program. 2009
xlviii Loc.cit at footnote 7.
xlix See ‘Unnatural offences’ punishable under s. 154 of the Penal Code, Cap. 16
l An informer from one of the NGOs operating safe temporary shelters for Victims of trafficking.
li Ibid.
lii Ibid.
liii Trafficking in Persons is a second lucrative organized crime after drugs trafficking. (USDOS, Global Status
Report on Human trafficking, 2019).
liv International Organization for Migration “Dynamics of Trafficking in Persons in Tanzania” Study Report,
2016.
lv ATS is established under Regulation 26 of the Anti-trafficking in Persons (Prevention, Protection and
Treatment) Regulations, 2015.
lvi RTI International; Stakeholders’ Interviews on the effectiveness of TIP Act in Tanzania, 2017.
lvii See table 5.
lviii ibid
lix A magistrate, a key informer in an interview. This magistrate has received promotion recently. He is now a
High court judge.
lx Sometimes traffickers run away from law enforcement leading to failure in Prosecution of cases.
lxi In Zanzibar this phenomenon is called ‘Muhali’- a situation where a victim of a crime denies information to the
law enforcement in order to save his family from facing the law.
lxii These are regulations made to the Act to provide for establishment of centres for Protection and assistance of
victims of trafficking in Persons before reunification with their respective families.
lxiii These regulations provide for procedures, rules and principles that must be complied with by shelters and
other stakeholders in protection and assistance of Victims of human trafficking.
lxiv 2018-2021. The authors were part of the team that participated actively during the enactment of the action
Plan.
lxv See section 6 of the Written Laws (Miscellaneous amendment) (NO.2) Act, 2016.
lxvi See section 7 of the Written Laws (Miscellaneous Amendment) (No. 2) Act, 2016.
lxvii The Secretariat means anti-trafficking Secretariat established under the Act.
lxviii See section 4(1) of the Act.
lxix See section 139A of the Penal code CAP 16 R.E. 2002.
lxx See section 4(5) of TIP Act, NO. 6 OF 2008.
lxxi Ibid at footnote 139A.
lxxii Cr. Appeal No. 92 of 2016 (High Court of Tanzania at Mtwara) Unreported.
lxxiii Section 131 of Penal code read together with Section 6 of SOSPA provides for minimum Punishment of 30
years Imprisonment and maximum of Life imprisonment with fine.
lxxiv It’s important to add this sub-section in order to make an express criminalization of and recognition of extraterritorial trafficking in Persons.
lxxv Nullum crimen sine lege is the principle in criminal law and international criminal law that a person cannot or
should not face criminal punishment except for an act that was criminalized by law before he/she performed the
act.
lxxvi An exception lies on strict liability offences where punishment flow from an overt act without requirement to
prove necessary mensrea.
lxxvii C.M.V Clarkson., and H.M. Keating; Criminal La: Text and Materials.1990. London. Sweet & Maxwell. Pg.
433
lxxviii See Article 14, and 24 of the Constitution of the United Republic of Tanzania, 1977 [CAP 2 R.E. 2002].
lxxix C.M.V. Clarkson at footnote 63.
lxxx Gross; A theory of Criminal Justice. 1979. At P.g. 125. Quoted in S.M.V. Clarkson at Pg. 434.
lxxxi Section 75 of Interpretation of Laws Act, Cap 1 [R.E. 2002].
lxxxii See Article 8 of the League of Arab States Model law on Combating human trafficking.
lxxxiii See Section 7(1)(a) of the Anti-trafficking in Persons Act. No. 6/2008. An intermediary may be a recruiting
agent, a parent, guardian or any other person who facilitates the movement of a trafficked victim from his home
to the hands of the trafficker.
lxxxiv Section 7(3) of the Act.
lxxxv See Written laws (Miscellaneous) Amendments No. (4) Act of 2019.
lxxxvi See sections 194F (a-f) of the CPA read together with Section 16 of the Written laws (Miscellaneous)
Amendments No. (4) Act of 2019.
lxxxvii See Article 15 of UN Convention against transnational organized crimes.
lxxxviii See UNODC., Combating Trafficking in Persons. a Handbook for Parliamentarians. No. 16-2009. At Pg.
88.
lxxxix Section 36(1) of the Act.
xc CAP 368 [R.E. 2002]
xci
"Various reasons may prevent states on the territory of which a criminal is found from extraditing him or her
to the state where the crime was committed or to any other state willing to prosecute the case. The suspect is likely
to escape prosecution and enjoy impunity if the authorities of the custodial state are not required to initiate
proceedings against him or her. The obligation to extradite or prosecute, now traditionally described by the Latin
expression aut dedere aut judicare, is one of the paramount cooperation means designed by states in order to
counter this phenomenon and, in particular, to deprive criminals of any safe haven. This obligation is classically
understood as requiring the custodial state to prosecute the suspect in case of non-extradition". See
https://www.oxfordbibliographies.com/view/document/obo-9780199796953/obo-9780199796953-0023.xml
xcii Article 15(1)(a), (b) of the UN convention against trans-organized crimes & Article 6 of UNODC Model Law
against trafficking in Persons. V. V.09-81990 (E)
xciii Articles 15(3), 16(10) of the convention read together with Article 7 of the model law.
xciv Article 7(2) of the Model Law.
xcv This rule is important so as to avoid situations of double Jeopardy. See section 70 of Interpretation of laws Act,
Cap 1 (Tanzania), and section 25(2) of Counter-Trafficking in Persons Act (Kenya)
xcvi That’s according to the national rules of procedure and Practice in respect of extra-territorial cases and
enforcement of foreign decisions.
xcvii See Article 6(1) of the Protocol.
xcviii See section 9(5 a-d) of the Act.
xcix CAP 20 [R.E. 2002]
c See section 7 of the Act. (Ibid).
ci See section 12 of the TIP Act.
cii See Articles, 63(1)(d), and 64 of the Constitution of the United Republic of Tanzania.
ciii A bill could also be a proposal for amendment of an existing law after meeting all requisite procedures.
civ See Majamba H.I., The Paradox of the Legislative Drafting Process in Tanzania. Statute Law Review, OUP.
2017, Vol. 00, No. 00, 1–13
cv See Order 8 of the Standing Orders, 2016.
cvi Majamba at footnote 105.
cvii Ibid.
cviii This is done before the meeting of the Inter-Ministerial technical Committee (IMTC). This committee is
composed of all permanent secretaries of the ministries chaired by the Chief government secretary.
cix See Section 19 of the office of Attorney general (discharge of duties) Act, Cap 268 [R.E. 2002].
cx See order 80(1) of the Standing Orders of the National assembly, 2016.
cxi Order 83(1).
cxii Order 85(1),(2).
cxiii Majamba at Pg. 10.
cxiv See Oder 89.
cxv See Order 91.
cxvi See Article 97(1) of the Constitution of the United Republic of Tanzania, 1977 (Cap 2 R.E. 2002].
cxvii See Article 132(1), (2) of the Constitution of Zanzibar, 1984 R.E. 2010.
cxviii See Section 172 of the Penal Decree Act, No. 6 of 2004.
cxix Cap. 1 [R.E. 2002].
cxx Tanzania ratified the Palermo Protocol in December 2006 without any reservation.
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