Girl’s quest for justice brings to focus the slow, invasive litigation steps trafficking victims face

A thirteen-year-old girl sits in a Thika courtroom wearing a blue floral-patterned frock. The fabric stretches as her swollen, pregnant belly peeks out from her worn-out brown jacket. She is seeking justice, alleging she was confined for months and defiled by a man nearly three times her age.

But justice is a slow and painful process for girls in her circumstance. Inside the bare, cold courtroom, Esther’s caseworker bluntly explains that her case will not proceed until there is more medical evidence that she was assaulted.

Esther has already undergone one physically intrusive and psychologically traumatising rape exam. She barely reacts as she learns the court will not recognise the results of her first test, done at a medical facility. She will need to undergo the procedure once more, with a police doctor. 

The child’s stoic expression suggests a cold detachment from the long legal battle that lies ahead. It is the same disengaged, hollowed expression she has been wearing since she was rescued from the man who allegedly held her prisoner in his home.

Esther, whose name we have changed to protect her identity, escaped when a local priest discovered her at the house where she was allegedly being held captive and reported her whereabouts. Police then arrested both the young girl and her captor. Esther spent three nights in police cells before being transferred to one of the country’s few crisis centres for pregnant teens. Allegations arose that her own father had handed her over to her alleged abuser, possibly for monetary compensation.

The official charge against the accused is a serious crime under Kenyan law. The Sexual Offences Act states that the “defilement of a minor” carries a sentence of up to 20 years in prison. But Esther’s lawyer and caseworker both argue additional charges should be brought to bear. Esther, they say, is a victim of human trafficking, a crime still greatly misunderstood in Kenya.

PRECONCEIVED NOTIONS

Cases like Esther’s challenge preconceived notions about what human trafficking is, says Radek Malinowski, the CEO of Awareness Against Human Trafficking (HAART), a non-government organisation that provides support for trafficking victims in Kenya. HAART has provided Esther with a caseworker who drives her to her court hearings and a psychologist who visits once a month. 

Kenya is considered a “major regional hub for trafficking, serving as a source, destination and transit country for victims”, according to the US State Department, which issues an annual report ranking governments on their perceived efforts to combat trafficking.

The Kenyan media regularly report on international trafficking cases, on Kenyans who voluntarily migrate to the Middle East, in particular Saudi Arabia, where they are at times forced into domestic servitude or forced manual labour.

Last month a video of over 100 Kenyan women, allegedly physically and sexually abused and abandoned by their employers at a detention centre in Saudi Arabia, surfaced online and caused a social media uproar.

That media coverage of international human trafficking cases has helped spur the adoption of legislation meant to curb this criminal activity and prosecute perpetrators. However, victims of human trafficking domestically — within Kenya — are still largely left to their own means, with little access to support from the state. These victims rarely see their abusers prosecuted.

Malinowski, who helped to draft the International Organisation for Migration’s (IOM) guidelines for assisting trafficking victims in East Africa, says the fact that Esther was confined away from her home for the purpose of sexual exploitation makes her a victim of trafficking, on par with those who are trafficked internationally, even if she was never taken out of her own country, or even far from her community.

The IOM guidelines describe a victim of trafficking as “any person who has moved from his or her family, community or country to another location at the influence or with the assistance of another person and is subsequently exploited”.

In spite of these clear international guidelines, frontline workers such as police and prosecutors do not have sufficient training and understanding to appropriately enforce the law, Malinowski says. As a result, cases of domestic trafficking, like Esther’s, fall through the cracks, making it difficult to track the full scale of the problem.

“One challenge is the death of research and systematic data collection on the human trafficking phenomenon. What we have are anecdotal cases,” says Noni Munge, a Regional Programme Officer for East Africa at IOM. “These cases are rarely collated into a central repository to allow for systematic analysis to see if there are any patterns, so that’s a real struggle.”

GAPS IN JUSTICE SYSTEM

But at least one report suggests the failure to identify and prosecute cases of domestic human trafficking leaves a gaping hole in the enforcement of trafficking laws. The United Nations Office on Drugs and Crime’s 2014 Global Report on Trafficking in Persons estimates that a staggering 97 per cent of victims of human trafficking across Sub-Saharan Africa are exploited within their country of origin or the general region.

The US State Department’s 2015 Trafficking in Person’s report states that the Kenyan government identified 658 child trafficking victims in the 2014 reporting period, based on information from only 18 of Kenya’s 47 counties. It also identified at least 12 adult victims that were trafficked overseas. As there is no national mechanism for tracking these numbers, activists agree these numbers are most likely just the tip of the iceberg.

Prosecution is also a major problem. The State Department report identified only 65 cases where trafficking led to prosecution, resulting in a mere 33 convictions of perpetrators. Though this number is up somewhat from previous years, HAART’s Malinowski says that, similar to Esther’s case, a significant number of trafficking cases are never tried as such.

Malinowski cites a recent case in Nairobi in which a man tricked families into thinking he was transporting their children to school, when in fact he was later accused of abducting them to provide manual labour on his farm, and also sexually assaulting them. Though this is a textbook example of human trafficking, Malinowski says, the man was arrested and eventually convicted of sexual assault, but not for trafficking.

This gap in the justice system persists despite the fact that Kenya’s anti-trafficking legislation has been praised as robust by many experts. In 2010, the government passed the Counter-Trafficking in Persons Act, which legally defined victims of trafficking and placed a 30-year jail term on convicted offenders.

And one year ago, advocates and anti-trafficking activists celebrated the passing of the Victim’s Protection Act, which promised to create a fund for medical treatment and psychosocial care of victims. It also included measures campaigners hoped would make the legal process more victim-oriented. The passing of that Act prompted the US State Department to boost Kenya’s ranking in their annual report on trafficking.

But Esther’s case illustrates the gap that exists between those “good laws” and their practical implementation, says Prudence Mutiso, a lawyer with the children’s rights group The Cradle, which is providing Esther with legal representation.

“Right now, Esther should be in a place of safety as defined by the Act,” says Mutiso. “She is in a children’s home that is not government funded. She is not receiving any support from the government. She has not received any money towards medical treatment.”

Mutiso says the Victim Protection Act remains toothless one year after its passing, pointing out that resources have yet to be allocated to the victim assistance fund mandated by the Act, and a charter that outlines where victims can access services throughout the country is yet to be created.

Alice Ondieki, chairperson of the board mandated to manage the fund, confirmed to DN2 the board has yet to be convened. Despite having a clear mandate to do so, the political motivation to implement the Act and provide invaluable support to trafficking victims simply isn’t there, says Mutiso.