Eliminating human trafficking has continually proved to be difficult despite laws and stringent penalties.
According to a 2018 US State department report, Kenya does not meet the minimum standards for eliminating human trafficking.
The country has also been mapped as a source, destination, and transit for trafficking.
In most of these cases, victims are vulnerable children and young adults. They are usually subjected to forced labour and sex trafficking.
The United Nations recently said 71 percent of victims globally are women and girls. Three out of four of these females are sexually exploited.
While addressing a regional women legal conference on November 30, 2018, Chief Justice David Maraga said the sad state of affairs can only be addressed through policies.
“As jurists, you are at the front line of devising policies and strategies that can significantly deal with this grave situation,” Mr Maraga said.
Kenya passed the Counter-Trafficking in Persons Act in 2010.
This was done as part of the country’s obligations under the United Nations Convention Against Transnational Organised Crime, particularly its protocol to prevent, suppress and punish trafficking in people.
It also defines the offences relating to human trafficking and for connected purposes.
And even though the country has laws, arresting traffickers is difficult because they operate in secrecy and use third parties in their crimes.
Suba North MP Millie Odhiambo says bringing perpetrators to book is a challenge since they are mostly well-connected and prepared to fight any person or organisation that can expose them.
“Those behind human trafficking are nameless. Those apprehended are always the small fish, not the masterminds,” Ms Odhiambo said.
Some other challenges the country faces relate to the porous borders, poor handling of cases in court, lack of awareness of what constitutes human trafficking and poor funding of concerned State agencies.
The criminals have international networks. This means people can easily be trafficked unnoticed under the hawk eyes of law enforcement officials and agencies.
Unfortunately, those trafficked may be kidnapped children or adults from poor backgrounds — usually citizens of low income countries or vulnerable refugees — who are duped to be taken abroad for economic gain.
They are made to pass through borders by the organised gangs. The victims may then be sold into prostitution and slavery in the receiving country.
Their organs may be illegally harvested too. Others, like albinos, have been killed and their body organs used in rituals.
Victims of human trafficking at times suffer double jeopardy.
After being arrested in the host country or while on transit, they are charged with illegal stay or entry and then deported after appearing in court.
Mrs Mary Otindo, a senior resident magistrate at the Children’s Court in Milimani, says there are times those trafficked are taken to court and end up being charged, thus further violating their rights.
According to the Counter-Trafficking in Persons Act, a victim of trafficking should not be criminally liable for any offence related to being in Kenya illegally or for any criminal act that was a direct result of being trafficked.
Trace Kenya executive director Paul Adhoch says security agents need to know that the law protects the victims of trafficking.
“There have been cases in which young people are trafficked and radicalised but they are treated as criminals, not victims, when they return to the country,” Mr Adhoch said.
Trace Kenya is a national counter-trafficking in persons NGO based in Mombasa.
It was founded in 2006 to help rescue, rehabilitate and reintegrate victims of trafficking.
Unfortunately, the courts do not immediately inquire the circumstances surrounding a case unless it is made clear from the onset that the accused is a trafficking victim, he said.
“It is only after being charged that we know the accused is a victim. At that juncture, we advise the prosecution to drop the charges and place the child under protection,” Ms Otindo said.
Some of the children trafficked may not understand any Kenyan language.
When a translator appears in court three or more months later, the child may have erroneously been remanded.
Before and when being trafficked, the victim may be promised a better life or job. Out of a natural desire to look for greener pastures, they may dispose of their property.
The criminal groups organise for travel documents such as passports for those being trafficked.
When the victims reach their destination, they are handed over to their sponsors or slave masters and the documents are seized.
That is when it dawns on them that they have become sex slaves or will be exploited for labour.
Mrs Caren Ogoti, the head of the counter-trafficking unit in the Department of Children Services, says trafficking of youngsters has been complicated with the use of technology.
According to a draft report by the department, there is an emerging trend of child trafficking and online prostitution.
Sexual predators, pornographers and prostitution rings capitalise on the popularity of mobile devices and social media to promote the crime.
Ms Ogoti says the unit will request for a line from the Communication Authority of Kenya so that the public can report any suspected cases of trafficking.
The unit was allocated just Sh20 million in the 2018/19 financial year.
However, Ms Ogoti says the unit has started partnerships with other vital institutions to realise its objectives.
Under the Proceeds of Crime and Anti-Money Laundering Act, illegally acquired wealth can be forfeited to the State. Money earned from human trafficking can also be seized by the government.
Assets Recovery Agency director Muthoni Kimani says once brought to Kenya, some of those trafficked become part of the production of business in terms of generating labour but are either underpaid or unpaid.
Girls are on some occasions are hired as dancers in strip clubs, generating profit. Ms Kimani says the money raised in such a manner is classified as crime proceeds.
“They are paid peanuts. The rest is pocketed by people we need to go after. Girls are used as sex slaves for wealthy men in high-end clubs. The person who pays the air ticket reaps big,” she said.
Experts have asked investigators and prosecutors to look beyond illegal entry into the country.
They want them to trace and apprehend the beneficiaries of trafficking.
Investigators need to get from the “illegal immigrants” information relating to who brought them in, who they were dealing with, who is facilitating their movements and at what cost.