Why is it important to engage criminal justice practitioners in developing a response to migrant smuggling?

 

GLO.ACT South Africa SOM Bill ReviewPretoria, South Africa - 1 June 2018 - Under the framework of the Global Action against Trafficking in Persons and the Smuggling of Migrants ( GLO.ACT) and in collaboration with the Department of Home Affairs, UNODC convened on 24 May 2018 a workshop with criminal justice practitioners on the issue of migrant smuggling. South Africa is in the process of developing specific legislation on smuggling of migrants (SOM) in compliance with its obligations under the United Nations Protocol against Smuggling of Migrants by Land, Sea and Air. The current legal framework relating to migrant smuggling criminalizes individual migrants and foresees detention and repatriation as a priority. The law does not focus on migrant smuggling as a large-scale criminal activity and penalties for facilitation of irregular border crossing are low.

The objectives of the workshop were to:

  • Compile and document best practices on an effective response to SOM;
  • Foster government commitment and engagement from non-government stakeholders for a proposed strategy, policy and action plan;
  • Gather and incorporate inputs to the draft smuggling of migrants bill;
  • Review the draft SOM bill;
  • Raise awareness amongst criminal justice practitioners on SOM;
  • Provide information on the development of South Africa's legal and policy framework and other policies based on global best practices.

GLO.ACT South Africa SOM Bill ReviewDuring the opening ceremony of the workshop, Ms. Belen Calvo Uyarra, Head of the Political, Information and Communication Section of the Delegation of the European Union to the Republic of South Africa said that "partnerships and operational cooperation between states, agencies and civil society is crucial to clamping down on migrant smuggling". She further said, "Dismantling migrant smuggling networks and bringing the perpetrators to justice requires political will, prioritization of resources, concerted efforts as well as a common understanding and very solid judicial cooperation."

Mr. Modiri Matthews, Chief Director, Immigration Services at the Department of Home Affairs reaffirmed during his speech that "the Department of Home Affairs is committed to put in place frameworks that will support the fight against the scourge of migrant smuggling". He went on to say that, "The Department of Home Affairs is keen to learn how other countries have gone about applying the SOM Protocol, especially those that experience an influx of economic migrants."

Meanwhile, Ms. Samantha Munodawafa, UNODC Crime Prevention and Criminal Justice Officer, said, "People in the SADC region, like everywhere else, move continuously for a range of reasons. They move to seek employment, to reunite with their families or to flee internal conflict." She went on to say that "despite the existing regulations on legal migration they face difficulties in accessing legal channels for migration and often have to rely on the 'services' of smugglers."

The workshop concluded with participants drafting recommendations for further consideration. This included the following:

  • That South Africa integrates the draft SOM bill into its wider legislative framework. This should include but not be limited to the Constitution of the Republic of South Africa Law No. 108 of 1996 (Bill of Rights, Chapter 2; non-derogable rights Article 37); Prevention and Combating of Trafficking in Persons Act No. 7 / 2013 Children's Act No. 38 (2005) (Chapter 18 on TIP) Children's Amendment Act (Act 41 of 2007); Immigration Act No. 13 of 2002 (etc.); Refugee Act (No. 130 of 1998); Prevention of Organized Crime Act No. 121 of 1998 (as amended); Criminal Procedure Act No. 51 of 1977; and the Witness Protection Act 112 of 1998. Where provisions in the draft bill duplicate existing provisions, consideration should be given to removing them from the draft bill;
  • That South Africa considers including the definition of 'smuggling of migrants' as stated in Article 3 of the Smuggling of Migrants Protocol as ' procurement, in order to obtain, directly or indirectly, a financial or other material benefit, of the illegal entry of a person into a State Party of which the person is not a national or a permanent resident' and to remove the separate definition of 'smuggling';
  • That South Africa ensures that the draft bill does not impose a hierarchy between crime types. To date, the bill states, in the section on interpretation and application, that in the event of conflict between the trafficking and the smuggling law, the latter is to prevail. The recommendation is that the distinction between these crime types should be clarified and maintained;
  • That South Africa streamlines identification, first response and referral mechanisms of smuggled migrants. To this effect, it is proposed that guidelines, Standard Operating Procedures (SOPs) or other avenues of formalized guidance be adopted in order to ensure efficient coordination and optimization of efforts and resources;
  • That South Africa ensures that the draft bill criminalizes both smuggling of migrants and the enabling of a person to remain in a country illegally. In this respect, it is suggested that migrant smuggling be defined as per Article 3, Smuggling of Migrants Protocol.

Looking ahead, the Department of Home Affairs is likely to explore opportunities to conduct a social and economic assessment of challenges and resources in the context of SOM. It will also consider how to best integrate and reflect the findings into the draft bill. Furthermore, the department will also pursue further inter-departmental meetings, which are envisaged to take place in September 2018, following which it aims to finalise the draft bill and submit it to the cabinet.

Workshop participants included the South African Police Services, National Prosecuting Authority, Directorate for Priority Crimes Investigations, Department of Justice and Constitutional Development, Department of Social Development, Department of Home Affairs, Lawyers for Human Rights, United Nations High Commission for Refugees, Civil Society Organizations. Also taking part were our donor, the European Union, and project-implementing partner IOM.

The Global Action to Prevent and Address Trafficking in Persons and the Smuggling of Migrants (GLO.ACT) is a four-year (2015-2019), €11 million joint initiative by the European Union (EU) and the United Nations Office on Drugs and Crime (UNODC). The project is being implemented in partnership with the International Organization for Migration (IOM) and the United Nations Children's Fund (UNICEF). GLO.ACT aims to provide assistance to governmental authorities and civil society organizations across 13 strategically selected countries: Belarus, Brazil, Colombia, Egypt, Kyrgyz Republic, Lao PDR, Mali, Morocco, Nepal, Niger, Pakistan, South Africa, Ukraine.  GLO.ACT works with the 13 countries to plan and implement strategic national counter-trafficking and counter smuggling efforts through a prevention, protection, prosecution, and partnerships approach. It supports the development of more effective responses to trafficking and smuggling, including providing assistance to victims of trafficking and vulnerable migrants through the strengthening of identification, referral, and direct support mechanisms.

 

For more information, please contact:

Banele Kunene, National Project Officer

banele.kunene@un.org

 

www.unodc.org/unodc/en/human-trafficking/glo-act/

Email: glo.act@un.org

Twitter:   @glo_act