AN APPRAISAL OF THE LEGAL AND INSTITUTIONAL FRAMEWORK FOR THE PROHIBITION OF TRAFFIC IN PERSONS IN NIGERIA

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AN APPRAISAL OF THE LEGAL AND INSTITUTIONAL FRAMEWORK FOR THE PROHIBITION OF TRAFFIC IN PERSONS IN NIGERIA

Abstract:

The battle against human trafficking in Nigeria is enormous and a number of measures have been employed in ensuring that the progress in the said criminal act is brought to an end. The said criminal act had affected the liberty of many individuals as victims. Liberty as a fundamental right is an important element of an individual’s life as everything and inspiring are fashioned by persons who can labour in freedom. Hence, a human trafficking free country is a wealthy country. As such, Nigeria as a nation has provided adequate safeguards for the protection of its citizens against human trafficking. The research was informed by the increasing wave of human trafficking in Nigeria and an assertion by the former Executive Secretary of NAPTIP, Mrs. Jedy-Agba Beatrice that six out of ten trafficked persons are Nigerians. This is evidenced from the high number (10,815) of rescued victims of human trafficking by NAPTIP since inception to March, 2017, although, there is absence of accurate data on human trafficking in Nigeria. Human trafficking is a criminal act and a violation of fundamental human rights of the victims. The crime had resulted in promoting corruption in Nigeria and it had undermined the efforts of government at that direction. The research appraised the national legal frameworks that prohibit human trafficking in Nigeria. It also examined institutions established for the prohibition of human trafficking and protection of victims of the said trafficking in Nigeria. The research aimed at showing the role of law in prohibiting human trafficking in Nigeria. The research adopted as methodology the doctrinal approach which entailed the use of relevant literatures including national legislations, international instruments and reports. The research finds that Nigeria is a signatory to major international treaty on trafficking in persons and the prohibition of human trafficking is not directly addressed in the Nigeria constitution. It also finds the existence of institutions and other laws in Nigeria aimed at curtailing human trafficking amid challenges. The challenges include but not limited to difficulties in identifying victims of human trafficking and lack of cooperation after identification for the purpose of further investigation and prosecution of traffickers. The research therefore, recommended the amendments of the relevant human trafficking laws to streamline the provisions including the constitution. It also recommended concerted effort at curbing the menace of corruption in Nigeria.

CHAPTER ONE

GENERAL INTRODUCTION

1.1         Background to the Research

The people of African had experienced slavery and inhuman treatment. For example an estimated 11.5 million people were taken from their ancestral homes as slaves to other parts of the world1, using trickery, banditry, warfare, and kidnapping as modes of operation. A calamity of such magnitude has no analogous in any other part of the world. Slave capturing and exporting sapped Africa of millions of its abled, strongest and most capable youths between the ages of 15 and 252. That is, between 15th and 19th centuries, the productive segments of the African society were shiped out of Africa, which permanently weakened the continent. This was followed by colonisation by Europeans. All these engendered racism and contempt of Africans3, thereby destroying the economic life of Africa and Nigeria in particular. The slave trade took place in enormous volume between the 17th and 19th centuries, evidencing a darker historical era that saw the removal of people from Africa, and Nigeria in particular to plantations in Europe, North and South America and the Caribbean as slaves4. The indulgence in slave trade became a holy cause for mistreatment that had the support of church5. A desire for glory and profit from trade couple with missionary zeal brought Portuguese navigator to West African coast and Nigeria in the late 15 century. Portugal‘s lasting legacy for Nigeria is the initiation of Trans-Atlantic slave trade, as trade in slaves proved to be more money-spinning than trade in gold. Consequently, Africans who were interested in acquiring European goods such as cooking utensils, intoxicating beverages, guns, ammunition and cloths were encouraged by the European slave traders

  • Kalu, V.E. International Juridical Response to 21stCentury Slavery: Challenges for Nigeria’s Comatose

Legislature. In: Chukkol, K.S., et al. (eds.) Contemporary Issues in Nigeria Law, Ahmadu Bello University, Zaria, Law Journal (2003) p.143.

  • Elikia, M., The Impact of the Slave Trade on Africa-Le Monde-Diplomaque(2013), English Edition. p. 9

4Candice, G., et al. Commerce and Change: The Creation of a Global Economy and Expansion of Europe(2004)p. 1

5Simkin, J., Religion and Slavery. p. 13

to acquire African captives in exchange for these goods. This ultimately discouraged internal trade and incentives for Africans to engage in supporting the Europeans in the trade of human cargo which further served as a disruptive factor in the economics life of the Nigerian society6.

In 16th century, the Portuguese monopoly of West African trade was broken by the naval power of the Netherlands as the Dutch took over Portuguese trading stations on the coast that were the source of slaves for the Americans7. Dutch‘s position was later undermined by the French and the English competition whereas Demark, Sweden, including other European maritime countries, North American Colonies and Britain became the dominant slaving powers in the 18th century. In the 19th century, 30% of all slaves sent across the Atlantic were Nigerians, most of them were Yoruba and Igbo with significant concentration of Hausas, Ibibio and other ethnic groups8, while Aro confederacy and Oyo polities were responsible for most of the slave exported from Nigeria9. The researcher submits that history of human trafficking is directly connected to transatlantic slave trade.

When one tries to gauge the consequence of European slave trading on the continent of African and Nigeria in particular, it is vital to appreciate that one is measuring the end product of social violence and capital in the export of Africans, particularly, Nigerians rather than trade in any normal common sense or sense of the word10. Thus, it is safe and sound to declare that the accumulation of capital, as a result of free African labour utilized in the slave trade, provided the basis for the rise of the industrial revolution, capitalist production and the export of capital to colonial territories by Europe11.

  • Awoyokun, D., Nigeria: Slave Trade and the Founding Fathers. (2014). p 41
  • Library of Congress, Nigeria-The Slave TradeCountry Studies., p. 57
  • Awoyokun, D., op. cit. p. 33
  • Joseph E., Africans and the Industrial Revolution in England. Cambridge University Press, London, (2002) p. 17.

In Nigeria, slavery existed before the coming of the Europeans and the Arabs, but the slavery then was different from the European chattel slavery that the Africans were subjected to during the 19th century. The African slaves were primarily prisoners of war who were normally not executed as the other societies, but allowed to work as a means of paying off their ―debt‖ to the society that the slaves were originally at war against12.

The world, having accepted the fact that slavery was a great vice, had between 181513 and 1975 implemented about 300 international agreements with a varying degrees of accomplishment to suppress slavery14. However, despite the legal abolition of slavery vide 1815 Declaration Relative to Universal Abolition of the Slave Trade, slavery being an institution which never developed itself, did not stop with its callous acts. Hence, the cause of human history in African is full and marked by dreadful crimes of removal of capable youths from the continent. The modern world, that is, 20th and 21st centuries had presented us with a new slave trade called trafficking in persons or human trafficking, which has the same features with the old slave trade except that jeeps and modern four-wheel drive vehicles and aircrafts have replaced the camels and slave ships. Present-day trafficking in persons continues as a diverse criminal enterprise that involves actors operating domestically and internationally.

In Nigeria, populations vulnerable to human trafficking are growing which has a bearing on supply of potential victims for traffickers. This shows a very active market for trafficking in persons. For instance, it is estimated that West Africa trafficking victims originate in Nigeria, hence making the country a point of origin, transit and destination. Human trafficking in Nigeria is indirectly prohibited in the Constitution under the Fundamental Objectives as objective statement on certain socio-political, economic, and cultural issues meant to guide the government in the formulation of policies. The security and welfare of the Nigerians being of paramount importance, the

  • Awoyokun, D. op.cit. p. 33
  • 1815 Declaration Relative to Universal Abolition of Slave Trade was adopted.
  • BBC- Ethics-Slavery: The Law against Slavery. 3

Constitution places a duty and responsibility on all organs of government, and of all

authorities and persons, exercising legislative, executive or judicial powers, to conform

to, observe and apply the provisions of the fundamental objective15. Again, there are

other    legally  binding            legislations      and      regional           instruments      which  Nigeria            has

domesticated that prohibit human trafficking. Nigeria has also established institutions

that seek to prohibit human trafficking and protect victims of the said act. However,

trafficking of Nigerians is said to be on the increase. It is against this background that

this dissertation seeks to make an analysis of the legal and institutional frameworks on

the prohibition of trafficking in persons Nigeria.

1.2 Statement of the Problem

One of the problems this research discovers is that of slavery. Human trafficking is a

modern way of slavery. Slavery is a practice of having slaves. It is one of the gravest

criminal  acts  confronting  Nigeria  as  a  nation  and  the  international  community  at

large16. In Nigeria, slavery is out law by the Constitution17. Hence, Section 34 (1) and

(b), of the Constitution provides that:

  • Every individual is entitled to respect for dignity of his person, and accordingly-
  • no person shall be held in slavery or servitude; and

Again, the Trafficking in Persons (Prohibition) Enforcement and Administration Act,

2015 (TIP Act), also prohibits slavery. Sections 24 and 25 of the said TIP Act provide

that:

  • Any person who recruits, imports, exports, transfers, transports, buys, sells, disposes or in any way traffics in any person as a slave or accepts, receives, detains or harbours a person as a slave, commits an

offence    and    liable     on     conviction      to

  • Chapter II, Constitution of Federal Republic of Nigeria, 1999 (as amended)
  • Simkin, J., op. cit. p.13.
  • Constitution of Federal Republic of Nigeria, 1999, (as amended)

imprisonment for a term of not less than 7

years   and   a   fine   of   not   less   than   N2,

000,000.00.

  • Any person who-
  • deals, keeps, receives or harbours any person for the purpose of holding or treating that person as a slave,

(b) places, receives, harbours or holds any person as a pledge, pawn, in servitude or security for debt or benefits; whether due or to be incurred,

  • transports, transfers or in any way induces any person to come into Nigeria in order to hold, possess, deal or treat such person as a slave or to be used as a pledge or security for debt, or

(d) enters into any contract or agreement with or without consideration for the purpose of doing or accomplishing any of the purpose enumerated in this section, commits an offence and is liable on conviction to imprisonment for a term of not less than 7 years and to a fine of not less than N2, 000, 000.00.

Furthermore, our jurisdictional penal codes also prohibit slavery and as such stiffer

penalties are melted out against the violators of such provisions. For example, Section

279 of the Penal Code provides that:

Whoever   imports,   exports,   removes,    buys, sells, disposes, traffics or deals in any person as   slave,   or   accepts,   receives   or   detains against his will any person as a slave, shal be  punished  with  imprisonment  for  a  term which may extend to fourteen years and shall also be liable to fine.

From the above provisions of the laws, it can be established that slavery which is one of the manifestation of trafficking in persons is highly prohibited. Violation of human rights is another problem of this research. Human trafficking is a violation  of  human  rights,  such  as  the  right  to  life18,  the  right  to  freedom  from

  • Section 33, Ibid

discrimination, the right to dignity of human person and the right to be recognized as a person before the law. For example, Section 35 of the Constitution provides:

  • Every person shall be entitled to his personal liberty and no person shall be deprived of such liberty save in the following cases and in accordance with the procedure permitted by law.

However, the above mentioned rights of the trafficked persons are usually violated by traffickers in the course of trafficking their victims. The violations may take place at the  point  of  recruitment,  transportation  or  exploitation  of  the  victims.  Hence,  the researcher submits that the said deprivation is not by means or procedures permitted by law.

Furthermore, human trafficking is a social vice that dehumanises the individuals who are trafficked, rewards the inhumanity of the traffickers and weakens the moral     and social fabrics of the society contrary to Sections 17 (2) (f) and (h) of the Constitution of

Federal Republic of Nigeria (as amended) that said:

(2) in furtherance of the social order-

  • children, young persons and the aged are protected against any exploitation  whatsoever, and against moral and material

neglect;

  • the evolution and promotion of the family life is encouraged.

Unfortunately the above lofty provisions are violated by the traffickers as children and young persons are illegally recruited and transported from their community to another community for the purpose of exploitation thereby eroding evolution and promotion of family life. Hence making human trafficking not just an evil but also an existential

threat to Nigeria.

Additionally,  human  trafficking  is  a  heinous  and  volatile  form  of  internationally organized crime. Nigeria has a very active market for human trafficking that cut across geographical, social, cultural and religious barriers destroying the lives of millions of people in various communities. Criminal groups have efficiently used globalization and technology to commit crime across borders. For example, procurers vis-a-vis end users of the victims are beyond the victim‘s national boundary. Hence the United Nation Convention against Transnational Crime serves as a new legal tool to address the scourge of the crime by criminalization of participation in an organized crime group.

Article 5 of the Convention provides that:

  1. Each State Party shall adopt such legislative and other measures as may be necessary to establish as criminal offences, when committed intentionally:
  • Either or both of the following as criminal offences distinct from those involving the attempt or completion of the criminal activity:

 Agreeing with one or more other persons to  commit   a   serious   crime   for   a       purpose relating directly or indirectly to the obtaining of a financial or other material benefit and, where required by domestic law, involving an act undertaken by one of the participants in furtherance of the agreement or involving an organized criminal group;

  • Conduct by a person who, with knowledge of either the aim and general criminal activity of an organized criminal group or its intention to commit the crimes in question, takes an active part in:
  1. Criminal activities   of   the   organized criminal group;
  1. Other activities of the organized criminal

group   in   the   knowledge   that  his   or    her participation       will        contribute        to        the achievement of the above- described criminal

aim;

(b) Organizing, directing, aiding, abetting, facilitating or counselling the commission of serious crime involving an organized criminal group.

  1. The knowledge, intent, aim, purpose or agreement referred to in paragraph 1 of this article may be inferred from objective factual circumstances.
  1. States Parties whose domestic law requires involvement of an organized criminal group for purposes of the offences

established in accordance with paragraph 1

(a) (i) of this article shall ensure that their domestic law covers all serious crimes involving organized criminal groups.

Such States Parties, as well as States Parties whose domestic law requires an act in furtherance of the agreement for purposes of the offences established in accordance with paragraph 1 (a) (i) of this article, shall so inform the Secretary-General of the United Nations at the time of their signature or of deposit of their instrument of ratification, acceptance or approval of or accession to this Convention.

The implication of the above provisions is that each State party is mandated to enact domestic laws criminalizing organized crime with the hope that it will help defeat the forces of internationally organized crime in Nigeria.

Also,    human trafficking       breeds  corruption.       Corruption       acts      as         an        environmental condition that favours human trafficking and a tactic that traffickers use to ply their trade. Hence, police, immigration and customs officials conspire with traffickers in aiding human trafficking contrary to Section 15(5) of the constitution which state that:

The State shall abolish all corrupt practices and abuse of power”. Thus, a public

servant who engages in corrupt acts is punished under the Penal19  and Criminal20

Codes. For example Section 115 Penal Code created the offence of gratification by public servants and violators are liable to be imprison for a term ranging from seven to 14 years. A critical look at the provisions of the Codes on corruption shows a serious

attempt by the State to arrest the incidence of corruption vis-à-vis human trafficking in Nigeria.

  • See generally Sections 115-122
  • See generally Sections 98-166

However, despite the various provisions of the laws against human trafficking, children and women are still trafficked yearly from Nigeria to Europe in a multimillion dollar criminal industry of an estimated value of between 152 million and 228 million annually. Significant questions from the above discussed problems, which must be addressed, are:

  1. what is meant by the term human trafficking or trafficking in persons under the Nigerian laws?
  2. what are the causes of human trafficking and does have any effect on the victims?
  3. why human trafficking or why trafficking in persons?
  4. are there legal and institutional frameworks in place to prohibit human trafficking in Nigeria?
  • are the legal and institutional frameworks helped to reduce the act of human trafficking in Nigeria?

1.3          Aim and Objectives of the Research

The aim of this research is to show the role of law in punishing offenders, reducing or eliminating trafficking in persons and rehabilitation of victims of human trafficking in Nigeria. This is with the view of realizing the following objectives:

  1. to examine the legal framework on human trafficking21.
  2. to examine the application of the laws using the institutional structures.
  • to establish findings on the application of the laws to prohibit human trafficking in Nigeria.
  1. to make recommendations on the findings of the research.

1.4         Justification

This research is necessitated as a result of problems associated with trafficking in persons in Nigeria. It is justifiable on the ground that there should be research from

  • Criminal Code Act, Penal Code Act, Labour Act, Immigration Act and Trafficking in Persons (Prohibition) Enforcement and Administration Act, 2015

time to time to show the role of the law in prohibiting human trafficking in Nigeria. Hence, it is our believe that this research would be of immense assistance as a source of reference material to law students, law lecturers, legal practitioners, judges and non-governmental organisation whose aim and objectives are geared towards prevention of trafficking in persons in Nigeria. It is also hoped that it will be of assistance to the institutions charged with responsibilities of combating trafficking in persons and it would provoke further research.

1.5         Scope of the Research

This research is restricted to trafficking in persons in Nigeria. Thus, emphasis is placed on Trafficking in Persons (Prohibition) Enforcement and Administration Act22 and National Agency for the Prohibition of Trafficking in Persons. Furthermore, references are also made to other Agencies such as the Nigerian Police Force and other legislations on human trafficking such as the Police Act and the Immigration Act. The research‘s unavoidable limitations are time limit and sudden repeal of the principal law against human trafficking, hence lack of decided cases to test the efficacy of the new Act. Other limitation is the restriction on data. Most of the data are from NAPTIP covering year 2013, 2014 and 2015. Given the scope and the limitations, findings may not be generalised.

1.6         Research Methodology

The research adopted the doctrinal methodology. The research is library based predicated upon finding answers to research questions as raised. The methodology is easy to manage and the predictability of its outcome account for why it is the best for this research. The source of data will be both primary and the secondary sources. The primary sources consist of the Constitution of the Federal Republic of Nigeria 1999 (as amended), Trafficking in Persons (Prohibition) Enforcement and Administrative Act,

  • The Act came into force on the 26 March, 2015.

Child Rights Act, other National and State legislations, International Instruments for the prohibition of human trafficking in Nigeria and case law that have bearing on human trafficking. The said secondary sources on the other hand was used to lay down the background and consists of the use of textbooks, scholarly articles in Journals, seminar and conference papers and literature sourced from the internet. The research also utilized secondary sources such as Data Analysis (2013, 2014 and 2015) and Publications from the National Agency for the Prohibition of Traffic in Persons.

1.7         Literature Review

The effort made so far by various nations and international community at combating human trafficking around the world especially in Nigeria has provoked much writing. It is worthy to note that the trafficking law23 makes provisions for research and programme development within the implementation structure. The law very much encouraged research and publication in the subject area of the research.

Thus, there are available information on human trafficking and trafficking law in Nigeria. However, the available information deals with one aspect of the subject matter only. Hence, the researcher consulted various works to bring about this research. Firstly, Ladan, M. T., in his book24 offers a comprehensive view of human trafficking in Africa couple with national and international legal frameworks and institutional structure against trafficking in persons. However, a detailed discussion on the provisions of the laws aimed at curbing trafficking in persons in Nigeria were lacking in the book.

Secondly, in a like manner, Sylvester D., in his book25 gave a vivid account of how human beings, especially women and children are trafficked from Nigeria to Italy for sex market. Prostitution within the Nigeria borders was also discussed by the author.

  • Trafficking in Persons (Prohibition) Enforcement and Administration Act, 2015
  • Migration, Trafficking, Human Rights and Refugees under International Law: A Case Study of Africa. Ahmadu Bello University, Zaria. Press, Zaria, (2004)
  • Bring Back the Lost Daughters. A Fight against Trafficking of Nigerian Women and Girls for the InternationalSex Market. Afab Educational Books, Jos, Nigeria, (2005).

Never the less, the author discussed not, other purposes why people are trafficked other than prostitution and efforts of the institutional structures to curb the menace.

Thirdly, Olaide G., gave account of the international perspectives on trafficking including Nigeria laws against human trafficking in his book26, yet, no account was given as to the effort of National Agency for the Prohibition of Traffic in Persons and other similar institutions at curbing trafficking in persons in Nigeria.

Fourthly, Reuben A.27, on his side storms us with stories and experiences of victims of human trafficking and illegal migration. Like the previous writers above, causes and effect of trafficking in persons in Nigeria were left out. Furthermore, no discussions on the achievement or otherwise of the institutional structures saddled with the responsibility of tackling the menace of trafficking in persons in Nigeria.

Fifthly, Nwawura, K. N., wrote on human trafficking in Nigeria with special attention on the history, activities, and challenges of National Agency for the Prohibition of Traffic in Persons28. However no discussion as to the number of victims, suspects and convictions in relation to trafficking in persons in Nigeria.

Sixthly, in an article29, the nature of trafficking in persons was discussed in view of international legal response. Also, a sort of comparison between slavery and trafficking in person were examined but the article lacked legal exposition on internal legal response on trafficking in persons in Nigeria.

Seventhly, Dave-Odigie, C. P., in an article30, make exposition on trend in human trafficking in Nigeria, what makes victims vulnerable and how to overcome the

  • International Perspectives and Nigerian Laws on Human Trafficking. All Nations Press, Benin, (2006).
  • Trapped: A compendium of Issues on Illegal Migration and Human Trafficking. Society for the Enlightment of Youths on Dangers Abroad (2004).
  • The Achievements, Challenges and Prospects of NAPTIP in Nigeria, since inception in year 2003.
  • Kalu, V.E., op. cit. p.141
  • Human Trafficking Trends in Nigeria and Strategies for Combating the Crime. Peace Studies Journal, vol. 1, Issue 1, Fall, (2008), p. 53.challenges. The said article like others mentioned above, also suffered from in-depth analysis of the penal provisions against trafficking in persons in Nigeria.

Finally, Tom E., and James, A.31, also wrote on human trafficking in Nigeria. The writers brought out the relationship between human trafficking, human smuggling and organised crime. However, accounts were not given as to the functions and responsibilities of governmental organisations whose mandate it is to fight trafficking in persons in Nigeria.

Hence, the available literatures fall short of providing an in-depth analysis of the implementation of all the relevant trafficking laws in Nigeria using the institutions which are saddled with the responsibility of prohibiting trafficking in persons. Consequently, the need to research on legal and institutional frameworks on the prohibition of trafficking in persons in Nigeria.

1.8          Organizational Layout

This dissertation is divided into five chapters. Chapter one is an introductory chapter which deals with background of the research, research problem, aim and objectives of the research, justification and scope of the research which is Nigeria. Research methodology, literature review and organizational layout also form part of the introductory segment.

Chapter two explains the meaning and nature of trafficking in persons and various forms/types of trafficking in persons. Reasons and purposes why people are trafficked from Nigeria and its effects on the victims and the nation are contained in the chapter.

Chapter three deals with legal framework aimed at combating the act of trafficking in persons in Nigeria. Consequently, the Constitution of Federal Republic of Nigeria 1999 as amended in 2011, the Trafficking in Persons (Prohibition) Enforcement and

  • Making Sense of the Relationship Between Trafficking in Persons, Human Smuggling, and Organised Crime: A Case Study of Nigeria. 151

Administration Act, Criminal Code, Penal Code, Child Right Act and other relevant legislations including International Instruments were extensively examined.

In chapter four the roles and efforts of the National Agency for the Prohibition of Traffic in Persons, the Nigerian Police Force and the Nigerian Immigration Service at combating trafficking in persons were appraised.

Chapter five concludes the research by way of summary, findings and recommendations to the problems identified in the research, so as to contribute to the proper and effective implementation of relevant trafficking laws in Nigeria in the quest at fighting this crime called trafficking in persons.

AN APPRAISAL OF THE LEGAL AND INSTITUTIONAL FRAMEWORK FOR THE PROHIBITION OF TRAFFIC IN PERSONS IN NIGERIA

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