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Combating the “New Slavery” in Nigeria: An Appraisal of Legal and Policy Responses to Human Trafficking

Published online by Cambridge University Press:  27 February 2013

Nlerum S Okogbule
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Abstract

This article examines the legal and policy responses of the Nigerian government and other agencies to human trafficking, which is one of the central social and economic challenges facing the country today. After exploring the nature and dimensions of the practice, it argues that Nigeria's unenviable position as a country of origin, transit and destination in human trafficking, as well as the impact of the practice on the lives of the victims and adverse implications for the country's corporate image, make it imperative that effective measures are adopted to combat it. In this respect, while accepting that legal measures are important in achieving the objective, the article highlights some deficiencies in current efforts and suggests a multidimensional approach, with greater emphasis on the “push” and “pull” factors of human trafficking prevalent in the country, such as high levels of unemployment, poverty, inequality and marginalization.

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Type
Research Article
Information
Journal of African Law , Volume 57 , Issue 1 , April 2013, pp. 57 - 80
Copyright
Copyright © School of Oriental and African Studies 2013

INTRODUCTION

Slave trade may simply be described as trade in human beings; it thrived in Africa between the 16th and 18th centuries and peaked in the latter century. During this period, hundreds of thousands of able-bodied Africans were forcefully taken from their homes and communities, and transported to Europe in the most dehumanizing of conditions.Footnote 1 Indeed, it was recognition of the attendant inhuman nature of the trade and the commitment to respect for human dignity that led to the formation of some associations in Europe which championed the fight against slave trade. The efforts of these abolitionists eventually bore fruit in the early 19th century when slave trade was formally abolished in the United Kingdom and, subsequently, by the international community.Footnote 2

However, 200 years later, this inhuman trade has re-emerged albeit in the form of human trafficking. Principally motivated by the quest for huge financial benefits,Footnote 3 notwithstanding the gross violations of human rights involved, human trafficking has become a serious socio-economic problem with enormous national and international dimensions.Footnote 4 In significant respects, enhanced communications, through improved transportation, telecommunications and the internet and driven by the processes of contemporary globalization, have exacerbated the problem of human trafficking. To be sure, globalization has not only facilitated the movement of goods and services from one part of the globe to another, it has also led to the objectification and exploitation of humans for economic ends.Footnote 5 Although virtually all African countries have subscribed to international conventions that condemn the practice,Footnote 6 these have not been effectively implemented, and human trafficking in all its ramifications remains an increasingly worrisome social and economic problem on the continent. The harsh economic condition in several sub-Saharan African countries, including Nigeria, is often cited as the main reason for the prevalence of this practice in Africa.Footnote 7 As the most populous country in Africa, Nigeria invariably occupies a central position in this “trade”.Footnote 8 It is estimated that Nigeria accounts for about 70 per cent of the 70,000 girls trafficked annually from African countries to Europe, while between 1990 and 2005 over 40,000 Nigerian women became victims of human trafficking.Footnote 9 Indeed, Nigeria has been identified as a country of origin, transit and destination for human trafficking, with the attendant adverse effects on the country's corporate image in the international community.Footnote 10 When the implications of this categorization are combined with the social and economic impact of the practice on the victims, it becomes obvious why human trafficking has become a subject of fundamental importance in contemporary discourse.Footnote 11 That the practice has the potential to diminish Nigeria's growing respectability in the international arena, arising from recent modest gains in the sustenance of democracy,Footnote 12 makes it imperative that concerted efforts be made to tackle human trafficking directly and decisively. This calls for an inquiry into the current efforts and measures by the Nigerian government in dealing with this social and economic problem.

It is against this background that this article seeks to examine the legal and policy responses of the Nigerian government and its agencies to this practice, with a view to contributing to the discourse on human trafficking in the country.

The first section examines the legal and conceptual perspectives of human trafficking, while the second focuses on the nature, scope and dimensions of the practice in Nigeria. This is followed by a discussion of the specific legal and policy responses to the challenge posed by human trafficking. Here, attention focuses on the legal sanctions for the offence prior to and since the establishment of a government agency to drive the fight against the practice in Nigeria. The role of women-based organizations in the effort to combat human trafficking is also considered. After examining the innovations and inadequacies of some of these approaches, the article concludes by making a number of suggestions for improving the existing mechanisms for dealing with human trafficking in the country.

HUMAN TRAFFICKING: LEGAL AND CONCEPTUAL PERSPECTIVES

Human trafficking presents enormous challenges in terms of its legal categorization because of the diverse manifestations of the practice. Encompassing issues relating to national and international criminal law, human rights, public international law, economics, sociology, among others, its definition has understandably been hugely problematic.Footnote 13 This definitional problem is magnified due to the practice's close affinity with human smuggling.Footnote 14 Nevertheless, it may be said that, in general, it entails the recruitment, transport and transfer of young men, women, boys and girls from one country or part of a country to another, by the use of coercion or deception in order to place them in situations of forced labour or prostitution. This description largely accords with the definition contained in the Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children (Trafficking Protocol) supplementing the United Nations Convention on Transnational Organized Crime, 2000. It states that “trafficking in persons” means:

“the recruitment, transportation, transfer, harbouring, or receipt of persons either by threat or use of abduction, force, fraud, deception or coercion, or by the giving or receiving of unlawful payments or benefits to achieve the consent of a person having the control over another person for the purpose of exploitation. Exploitation shall include, at a minimum, the exploitation of the prostitution of others or other forms of sexual exploitation, forced labour or services, slavery or practices similar to slavery, servitude or the removal of organs.”Footnote 15

The three central components of this definition deserve mention in order to contextualize the dynamics of human trafficking in Nigeria. They are: the act of trafficking itself, which entails the recruitment, transportation, transfer or receipt of the victim; the means through which the act is done, which takes the form of threat, force, deception or coercion; and the purpose of trafficking, which is essentially exploitative. While these ingredients of human trafficking are present in different degrees in the Nigerian situation as will be shown in the next section of this article, it is significant that Nigeria became a signatory to the Transnational Organized Crime Convention and the Trafficking Protocol on 13 December 2000 and ratified them in 2003.Footnote 16 This obliges the country to take concrete measures to combat human trafficking, since article 5 of the Trafficking Protocol enjoins states parties to criminalize practices and conduct that subject human beings to all forms of exploitation, which includes at the minimum sexual and labour exploitation.Footnote 17 This stipulation gives added impetus to the criminal laws of states in tackling the problem of human trafficking. Moreover, slavery has long been regarded as a crime against humanity and prohibited in a number of international instruments, including the Rome Statute of the International Criminal Court (the Rome Statute).Footnote 18 Article 7 of the Rome Statute defines “crimes against humanity” to include enslavement and describes “enslavement” as “the exercise of any or all of the powers attaching to the right of ownership over a person and includes the exercise of such power in the course of trafficking in persons, in particular women and children”.Footnote 19 It accordingly makes enslavement punishable irrespective of where it occurs, provided it is committed “as part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack”.Footnote 20 Although this qualification minimizes the effective deployment of international criminal law in dealing with human trafficking, it nevertheless remains a potent instrument in situations where the specified conditions are present.

Human trafficking is also a gross violation of human rights, and this makes the human rights framework an important legal mechanism for combating the practice. Thus the Universal Declaration on Human Rights, 1948 states in article 4 that “no one shall be held in slavery or servitude; slavery and the slave trade shall be prohibited in all their forms”, and article 5 adds that “no one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment”. These declaratory provisions are reinforced by the binding provisions of article 8 of the International Covenant on Civil and Political Rights, 1966 which is similarly worded.Footnote 21 In the same vein, article 5 of the African Charter on Human and Peoples' Rights 1981 (African Charter)Footnote 22 provides: “[A]ll forms of exploitation and degradation of man, [or woman] particularly slavery, slave trade, torture, cruel, inhuman or degrading punishment and treatment shall be prohibited”, while article 4(g) of the Protocol on the Rights of Women in Africa provides that “State Parties shall take appropriate and effective measures to prevent and condemn trafficking in women, prosecute the perpetrators of such trafficking and protect those women most at risk”.Footnote 23

In the context of Nigeria, it may be mentioned that section 34 of Nigeria's Constitution of 1999 guarantees the right to the dignity of the person and prohibits the subjection of any person to slavery or servitude.Footnote 24 Being part of the fundamental rights enshrined in chapter IV of the constitution, this right is enforceable in the country when it is violated or is being threatened to be violated by any person or authority.Footnote 25 The equivalent provision under Nigeria's Constitution of 1979 was interpreted in the case of Chief Omu Uzoukwu and Five Others v Ezeonu 1I and Eight Others. Footnote 26 The appellants were categorized as slaves or descendants of slaves by their community who needed to be “cleansed” before being entitled to full participation in community affairs or to enjoy certain rights, such as the right to property or to take titles. The Court of Appeal held that such a practice was contrary to the constitutional provision prohibiting inhuman or degrading treatment, or the practice of slavery.

Against this legal background, it becomes necessary to examine the nature of human trafficking in Nigeria.

NATURE AND SCOPE OF HUMAN TRAFFICKING IN NIGERIA

There are essentially two aspects of human trafficking in Nigeria: internal and external dimensions, both of which have tremendous impact on the human rights of the victims in addition to the negative effects on the country's socio-economic fabric and image. It is important to highlight this distinction not only in order to explicate the scope of human trafficking in the country, but also because efforts at combating the practice sometimes focus more on the external dimension, to the neglect of the equally objectionable internal aspect of human trafficking.Footnote 27

Internal dimension of human trafficking in Nigeria

The internal dimension of human trafficking consists of a situation where young women, girls and boys are trafficked from rural to urban areas in the country through intermediaries or by loosely organized crime networks.Footnote 28 The object is to procure for them madams or households where they can serve as house helps with little or no payment for the services rendered.Footnote 29 This practice derives from the tradition in several African countries where less endowed members of the community living in rural areas send their children and wards to other relations in urban areas who are financially more able to take care of their less fortunate relations. The agents are usually compensated for providing this service by both the host families and those assisted to secure such placements.Footnote 30 The ages of the trafficked persons usually range between 15 and 25 but in some cases younger persons between 12 and 14 years are equally victims of this dimension of human trafficking.Footnote 31 These minors are usually maltreated and regarded as sub-humans by their madams and hostesses. They are thus denied their basic human rights, such as the right to education, health care and even liberty, and forced to carry out dehumanizing chores. Some are made to hawk food or other commodities on the streets in urban centres on behalf of their madams and are thus exposed to various forms of assault, including sexual abuse.Footnote 32

The facts of a recent case from the Republic of Niger, a neighbouring country having similar customs to a large segment of northern Nigeria, illustrate the extent to which some of these traditional practices entail human trafficking and slavery. In Hadijatou Mani Koraou v The Republic of Niger,Footnote 33 Hadijatou was only 12 years old in 1996 when she was sold to a local chief, El Hadj Souleymane Naroua, for 240,000 CFA francs. This transaction took place in accordance with customary practices in Niger, called wahiya, which allow for young girls, generally slaves, to be acquired to work as servants and concubines. A slave bought under these conditions is known as a sadaka and is regarded by her “master” as being available to engage in sexual relations at any time, day or night. Hadijatou was sexually assaulted by El Hadj Naroua for the first time when she was 12 years old. Thereafter, for nearly ten years, she suffered psychological and physical abuse, sexual exploitation, hard labour, insults, threats and humiliation, and complete control over her life by El Hadj Noroua. During those ten years she gave birth to four children, all fathered by El Hadj Noroua, two of whom survived. On 18 August 2005, Hadijatou was given her “liberation certificate” purporting to release her from enslavement. When she tried to leave El Hadj Noroua's household, he claimed that she was his wife and was therefore not entitled to leave. It was only through pretending to have to visit her sick mother that she was able to escape. When Hadijatou subsequently married Ladan Rabo, and following a complaint by El Hadj Noroua that she committed bigamy, she spent two months in jail.

Upon her application, the Economic Community of West African States (ECOWAS) Court of Justice had no difficulty in holding that the applicant was held in slavery for nearly nine years in violation of the legal prohibition of this practice both in Niger and under relevant international human rights instruments.Footnote 34 The court also ordered the government of the Republic of Niger to pay her compensation for the failure of state institutions, including the judiciary, to protect her rights and prevent her enslavement.

Another disturbing aspect of the internal dimension of human trafficking which seems to be assuming prominence in Nigerian society is the emergence of what has been described as “baby factories”, especially in the south eastern part of the country and Lagos, the country's commercial nerve centre.Footnote 35 These are places with official signposts either as maternity homes, orphanages or clinics, but where human trafficking activities take place. In these places, young girls with unwanted pregnancies are harboured and catered for until they deliver their babies, and the babies are then sold for sums ranging from N100,000–N300,000 ($670–$2,000) per child to desiring childless women.Footnote 36 Some of these “baby factories” also harbour young men and girls who engage in sex in order to produce children for the “orphanage” or “factory” to sell to willing childless women. While the young men and girls are paid about N20,000 ($134) for their roles, the proprietor of the “orphanage” is able to sell each baby at the earlier stated sum and thus make an enormous profit. This shows how serious a social problem human trafficking has become in the country as it has led to the commodification of human beings. In this particular situation, the vulnerability of the young pregnant girls and the desperation of childless women are exploited by the traffickers for financial gains, while the baby becomes the object of sale in the process.

External dimension of human trafficking in Nigeria

The external dimension of human trafficking has been a subject of serious concern in Nigeria in recent years. This increased concern is attributable to the extent of exploitation involved in the practice and its implications for the country's international corporate image. It involves the trafficking of victims from Nigeria to other African and European countries, based on attractive offers made to them by the traffickers or through their intermediaries. The general trend in this dimension of human trafficking is that, before the victims leave Nigeria, they are made to sign documents agreeing to pay to their sponsors a sum of money as a refund for their travel expenses. Additionally, they and sometimes their parents are made to swear fetish oaths, promising to co-operate in all ways and never to reveal the identity of the traffickers.Footnote 37 The juju oaths are deployed to intimidate the victims by making them believe that devastating fetish repercussions will befall them or their families if they fail to repay their debts or if they disclose the identity of the traffickers. The victims are thus kept in bondage through a combination of fear, intimidation, abuse and psychological controls.Footnote 38 In the case of female victims, more often than not they would not have known that they would end up as prostitutes in their destination countries. This is because the offer presented to them at the recruitment point is usually the promise of higher earnings abroad from working either as shop assistants, baby sitters, models, artists or farm helps.Footnote 39

It is the author's contention that two critical legal issues are raised by these methods used by the traffickers in procuring their victims: the question of legal capacity and consent to contractual transactions. In the first place, it is a fundamental principle of law that a minor cannot enter into a valid legal contract.Footnote 40 The rationale behind this principle is the commitment to “protect the minor against his [or her] inexperience, which may enable an adult to take unfair advantage of him [or her], or to induce him [or her] to enter into a contract which, though in itself fair, is simply improvident”.Footnote 41 Secondly, even for the adult women and men who are victims of this practice, the question of consent to the “contractual documents” is of crucial importance. For a person to be said to have validly consented to a transaction, he or she must have known the nature and scope of the transaction. Thus, where the consent is procured by fraud, deception or similar conduct, it is vitiated and has no legal effect.Footnote 42 In this respect, it may be mentioned that economic pressure exerted on a party to a contract is now accepted as one of the conditions for invalidating the contract. As Lord Goff of the English House of Lords stated in the Evia Luck Case (No 2), “it is now accepted that economic pressure may be sufficient to amount to duress … provided at least that the economic pressure may be characterised as illegitimate and has constituted a significant cause inducing the [claimant] to enter into the relevant contract”.Footnote 43 Accordingly, the purported “contractual documents” usually signed between the traffickers and the victims, and induced by undue influence as described above, are voidable in law. This issue of consent or voluntariness on the part of the victims is also highlighted by the International Organization for Migration (IOM) which states: “[i]n many instances, trafficked migrants are lured by false promises, misled by misinformation concerning migration regulations or driven by economic despair or large-scale violence. In such cases, the migrant's freedom of choice is so seriously impaired that the ‘voluntariness’ of the transaction must be questioned.”Footnote 44

The victims are usually transported abroad by air but, with increased surveillance at airports, other means of transportation such as land and water through neighbouring countries have also been used by the traffickers.Footnote 45 For land transport, Katsina and Sokoto in the northern part of the country have been identified as routes to the Middle East and east Africa, while the Seme border in Lagos State is the land route in the south west, and Cross River State the sea route to Cameroon.Footnote 46 These illegal cross-border movements of traffickers and their victims are usually facilitated by the high level of corruption among public officials in the country.Footnote 47 Indeed, it can be said that there is a strong correlation between human trafficking and corruption because corrupt officials either at the offices where travel documents are obtained, or at the border posts, are known to compromise their positions to facilitate transportation of the victims across the border.Footnote 48 They collaborate with the traffickers in preparing fraudulent travel documents or, in the case of movement within the ECOWAS sub-region, allow them and their victims to cross the border without travel documents.

The most common destination for human trafficking from Nigeria is Italy, although other African and European countries as well as America also serve as destinations.Footnote 49 Once the victims arrive in Italy, or any of the other countries, it is time for their sponsors to seek the recovery of their expenses in facilitating the victim's immigration. They do this by “selling” the victims in “market towns” such as Livorno, Torino, Turin and Genoa to madams and bosses.Footnote 50 It has been asserted that the average selling price of a victim from sponsor to madam is about $12,000.Footnote 51 Subsequently, the madam or boss to whom the victim becomes answerable demands much more than this sum from the victim as a dividend for keeping them and as a condition for their freedom. In order to comply with this patently exacting demand, the female victims are compelled to sleep with as many as ten men a day in order to repay the debt and become independent or at least personally have something to show for having travelled abroad.Footnote 52 The victims are thus exposed to health risks such as HIV / AIDS and other sexually transmitted diseases, as well as unwanted pregnancies from unprotected sex. They also undergo emotional stress and related psychological consequences as well as threats to their physical safety and violation of their basic human rights.Footnote 53 Yet, the more they struggle under these circumstances to meet the demands of their bosses the more difficult they find it, thus constraining them to remain under bondage for long periods of time. Two interrelated factors combine to make it impossible for the victims to raise enough money to secure their freedom under this arrangement. First, the prohibition or restricted working hours on their entry visas prevents them from securing other jobs that can earn them reasonable income. Secondly, as they struggle to meet the demands of their sponsors, they soon find that their period of stay under their visa has expired and they become illegal immigrants. Under these conditions, they begin to live in constant fear of being apprehended by law enforcement officials in their host states, and cannot search for alternative jobs to make enough money to repay their madams or bosses. The result is that some of these victims are eventually apprehended as illegal immigrants and deported to Nigeria in deplorable and despicable circumstances.Footnote 54

It is apparent from this analysis that human trafficking is a multi-faceted practice embodying new situations and challenges that require appropriate response mechanisms by the government and other regulatory agencies. The implication is that, to be effective, any consequential response measure must take cognizance of this multifarious and multi-dimensional nature of human trafficking.Footnote 55 This leads to an examination of the legal and policy measures adopted by the Nigerian government to deal with this practice to ascertain whether, and the extent to which, those measures reflect these considerations.

LEGAL AND POLICY RESPONSES

The enormity of the problem created by human trafficking in Nigeria has been recognized by the government, which has accordingly taken steps to stem the practice. From a normative perspective, the government's measures against human trafficking are grounded on the constitutional provisions on fundamental rights, in particular, the right to the dignity of the person and the prohibition against slavery or servitude.Footnote 56 Essentially, the government's response to the challenge posed by human trafficking has been through enacting appropriate legislation, making policy formulations and supporting other measures designed to tackle the scourge. The response can be categorized under three sub-heads, through deployment of: the Criminal and Penal Codes; the recently enacted Trafficking in Persons (Prohibition) Law Enforcement and Administration Act, and the Child Rights Act; and various women-based programmes. This article now discusses these in turn.

Prohibition of human trafficking under the Criminal and Penal Codes

The proclivity of human beings to engage in human trafficking has long been recognized in Nigeria. As mentioned earlier, several traditional practices in the country's component communities entail human trafficking. These include the use of domestic slaves in some communities, various forms of slavery, some deriving from the inability of debtors to fulfil their financial obligations, and similar traditional practices.Footnote 57 Some of the basic ingredients of the offence of human trafficking therefore already existed at the time the Criminal and Penal Codes were enacted.Footnote 58 For instance, section 369 of the Criminal Code respecting slave dealing provides:

“Any person who –

  1. (1) deals or trades in, purchases, sells, transfers or takes any slave;

  2. (2) deals or trades in, purchases, sells, transfers or takes any person in order or so that such person should be held or treated as a slave;

  3. (3) places or receives any person in servitude as a pledge or security for debt whether then due and owing, or to be incurred or contingent, whether under the name of a pawn or by whatever other name such person may be called or known;

  4. (4) conveys or induces any person to come within the limits of Nigeria in order or so that such person should be held, possessed, dealt or traded in, purchased, sold, or transferred as a slave, or be placed in servitude as a pledge or security for debt;

  5. (5) conveys or sends or induces any person to go out of the limits of Nigeria in order or so that such person should be possessed, dealt or traded in, purchased, sold, or transferred as a slave, or be placed in servitude as a pledge or security for debt;

  6. (6) whether or not a citizen of Nigeria holds in Nigeria any person as a slave;

  7. (7) enters into any contract or agreement with or without consideration for doing any of the acts or accomplishing any of the purposes herein above enumerated;

is guilty of slave dealing and is liable to imprisonment for fourteen years.”Footnote 59

Additionally, section 232(2) of the Criminal Code makes it an offence to procure a woman or girl for prostitution either within or outside Nigeria. This provision has important resonance for the current practice of human trafficking in the country.

In the same vein, section 275 of the Penal Code prohibits the trafficking of girls for immoral purposes or sexual exploitation. It provides: “[w]hoever by any means whatsoever, induces a girl under the age of eighteen years to go from any place or to do an act with intent that the girl may be or knowing that it is likely that she will be forced or seduced to illicit intercourse with another person shall be punished with imprisonment which may extend to ten years and shall be liable to a fine.”

While this section is evidently restricted to the trafficking of children, section 281 of the Penal Code is more embracing and covers both women and girls. It provides: “[w]hoever in order to gratify the passion of another person, procures, entices or leads away with her consent, any woman or girl for immoral purpose, shall be punished with imprisonment which may extend to seven years or shall be also liable to a fine.”Footnote 60

Apart from the provisions in the Criminal and Penal Codes, and in recognition of the federal structure of the Nigerian state which also empowers states to make laws on criminal matters, some state governments have equally enacted laws with enhanced punishment for human traffickers. This is particularly the case in those states where the practice is more prevalent, such as Akwa Ibom, Cross River, Delta and Edo. Thus in 2000, the Edo state government amended the Criminal Code as applicable to its territory to refer specifically to the offence of human trafficking and extend its scope. Accordingly, section 223 of the law treats the procurement of a woman or girl for prostitution as a felony, as against the previous categorization of the same practice as a misdemeanour, and increased the punishment from two to 14 years imprisonment. However, the provisions in these penal laws were not effectively enforced by successive governments. It is against this background, and in response to national and international pressure for visible action in tackling the menace of human trafficking in the country, that the government of President Olusegun Obasanjo opted to enact a new law on the subject rather than amending particular areas of the existing laws to reflect new developments. Although this approach gives visibility to the subject under consideration, it is nevertheless symptomatic of the Nigerian phenomenon whereby every new government enacts laws to demonstrate its seriousness in dealing with particular social problems; such approaches account for the horde of legislative instruments on particular subject matters in the statute books which are not being enforced.Footnote 61

Trafficking in Persons (Prohibition) Law Enforcement and Administration Act, 2003

In order to address the problem of human trafficking and the negative image the practice gives the country, and prompted by an non-governmental organization (NGO), the Women Trafficking and Child Labour Eradication Foundation (WOTCLEF), the Nigerian government enacted the Trafficking in Persons (Prohibition) Law Enforcement and Administration Act (the Trafficking Act).Footnote 62 The enactment of this act also fulfilled the country's international obligations under the Trafficking Protocol.Footnote 63

Section 1(1) of the Trafficking Act establishes the National Agency for Prohibition of Traffic in Persons and Other Related Matters (NAPTIP), while section 4 specifies NAPTIP's functions. These include responsibility for the co-ordination of all laws on traffic in persons and related offences, collaborating with other agencies or bodies, both nationally and internationally, to eradicate the traffic in persons and ensure the elimination and prevention of the root causes of human trafficking, as well as coordinating the rehabilitation of trafficked persons.Footnote 64

In recognition of the multifarious nature of human trafficking, section 50 of the Trafficking Act provides a broad definition of trafficking by stating that it includes: “all acts and attempted acts involved in the recruitment, transportation within or across Nigerian borders, purchases, sales, transfer, receipt or harbouring of a person involving the use of deception, coercion or debt bondage for the purpose of placing or holding the person whether for or not in involuntary servitude (domestic, sexual or reproductive) in force or bonded labour, or in slavery-like conditions”.Footnote 65

Deriving from this general description of human trafficking, specific sections of the Trafficking Act elaborate and specify punishment for particular acts. For example section 11 provides:

“Any person who: –

  1. (a) exports from Nigeria to any place outside Nigeria, any person under the age of eighteen years with intent that such person, or knowing it to be likely that such person will be forced or seduced into prostitution in that place; or

  2. (b) imports into Nigeria from any place outside Nigeria, any person under the age of eighteen years with intent that the person may be, or knowing it to be likely that such person will be forced into prostitution anywhere in Nigeria

commits an offence and is liable on conviction to imprisonment for life.”Footnote 66

This provision covers the two-way directional movement involved in the external dimension of human trafficking: where a victim is transported away from Nigeria to another country, and where a person is brought into Nigeria from another country, for the purpose of prostitution. The relevance of the provision stems from the fact that some persons are trafficked from neighbouring African countries such as Togo, Ghana and Niger to Nigeria, just as some Nigerians move in the opposite direction.Footnote 67 The Trafficking Act further provides in section 16 that: “any person who organizes or promotes foreign travel which promote prostitution of any person or encourages such activity commits an offence and is liable on conviction to imprisonment for ten years without option of fine”. This provision is important as some tourist agencies are known to promote human trafficking by enticing young girls with the opportunity of foreign travel to experience new life abroad. In this process, they act as intermediaries for the traffickers.

Recognizing the multifarious dimensions of human trafficking, section 24 of the Trafficking Act provides that any person who:

  1. “(a) deals or trades in, purchases, sells, transfers or takes any person in order or so that such person should be held or treated as a slave,

  2. (b) places or receives any person in servitude as a pledge or security for debt whether then due and owing, or to be incurred or contingent whether under the name of a pawn or by whatever other name such person may be called or known,

  3. (c) conveys or induces any person to come within the limits of Nigeria in order or so that such person should be held, possessed, dealt with or treated in, purchased, sold or transferred as a slave or be placed in servitude as a pledge or security for debt,

  4. (d) holds or possesses any person as a slave,

  5. (e) enters into any contract or agreement with or without consideration of doing any of these or accomplishing any of the purposes enumerated in this section,

commits an offence and is liable on conviction to imprisonment for life.”Footnote 68

An offence is also committed where a person buys, sells, hires, lets or otherwise obtains possession or disposes of a person under the age of 18 with the purpose of employing or using that person for an immoral purpose or knowing that the person may be so used or employed.Footnote 69

It is equally of key importance that the Trafficking Act contains provisions relating to the treatment of trafficked persons. This is informed by the understanding that such persons may well be victims of circumstances who require assistance and guidance for their proper rehabilitation. NAPTIP is therefore mandated to ensure that: “a trafficked person is not subjected to discriminatory treatment in practice on account of race, colour, gender, sex, age, language, religion, political or other opinion, cultural beliefs or practices, national, ethnic or social origin, property, birth or other status, including his status as a victim of trafficking or having worked in the sex industry”.Footnote 70 NAPTIP is further required to ensure that “investigation, detection, gathering and interpretation of evidence are conducted in such a manner as to minimize intrusion into the personal history of a trafficked person”,Footnote 71 and that “the identity of a person trafficked is protected”.Footnote 72 Moreover, it is enjoined to take steps to maintain and rehabilitate facilities provided for trafficked persons, and ensure that a trafficked person is protected from intimidation, threats and reprisals from traffickers and their associates, including reprisals from persons in a position of authority.Footnote 73 The importance of this provision cannot be over-emphasized as it guarantees that a trafficked person is not unnecessarily harassed or intimidated by traffickers whose identities would have been disclosed by the trafficked person or victim. NAPTIP is also conferred with enormous powers relating to the search, seizure and arrest of persons reasonably suspected of having committed an offence under the Trafficking Act. In this connection, it may authorize any police, customs or immigration officer or other NAPTIP officer to arrest any person believed to have been involved in the commission of an offence under the act.Footnote 74 That officer may also enter and search any land, building or carrier, including vehicles used in the commission of an offence under the act.Footnote 75

Significantly, in 2005 the Trafficking Act was amended to provide, inter alia, for the establishment of the Victims of Trafficking Trust Fund in which the proceeds of the assets of convicted traffickers are to be held by NAPTIP.Footnote 76 This fund is expected to enhance NAPTIP's rehabilitation work, by ensuring that it has enough funds to cater for the welfare of victims of trafficking at its rehabilitation centre in Lagos.

Deriving from these statutory provisions, NAPTIP has actually made some progress in the fight against human trafficking in Nigeria. NAPTIP's executive secretary, Simon Egede, reported that between its inception in 2003 and 2009 NAPTIP prosecuted and secured the conviction of 65 traffickers with various sentences imposed, rescued and repatriated 4,000 victims, and rehabilitated some victims.Footnote 77 For instance, in the case of Attorney-General of the Federation v Sarah Okoya,Footnote 78 the accused woman was charged with procuring six girls from Benin City in Edo State with the promise of assisting them with jobs in Spain, only for the girls to end up being used as prostitutes in a hotel in Cotonou, Republic of Benin. She was arrested and charged with 18 counts, ranging from procurement for prostitution to deceitful inducement, punishable under sections 15 and 19 of the Trafficking Act. She was found guilty of the offences and convicted to 36 months imprisonment without option of a fine. Similarly, in January 2010, a 35 year old woman, Juliet Peters Ewinramwen, was convicted by a Benin High Court and sentenced to 15 years imprisonment without option of a fine for human trafficking.Footnote 79 In addition to her conviction, the court ordered her to forfeit properties believed to be acquired with the proceeds of the illicit trafficking business to NAPTIP's victims trust fund.Footnote 80 NAPTIP also recently raided some “baby factories” in Abia State in eastern Nigeria and arrested those involved in this form of internal human trafficking, under the guise of running orphanages or maternity homes.Footnote 81 These modest achievements have resulted in the country retaining tier 1 status in the US government ranking of states' compliance in the fight against human trafficking.Footnote 82

It is however the author's contention that the Trafficking Act contains some provisions that significantly limit its inclusiveness or run contrary to some basic norms of criminal jurisprudence. First, a fundamental defect of the Trafficking Act is that some of its equally important provisions are limited to acts or offences involving persons under the age of 18 years.Footnote 83 In other words, these provisions are restricted to offences committed in relation to children. This is because, by virtue of section 277 of the Child Rights Act,Footnote 84 a person under the age of 18 years is a child. Although the majority of the victims of human trafficking in the country fall within this age bracket, they are by no means the only ones affected by the practice, as some young men and women above the age of 18 are also victims but are therefore not protected by these sections of the Trafficking Act. Perhaps the rationale for not extending the provisions of these sections of the act to adults is that these categories of persons are expected to take informed decisions concerning their actions. However, because of the various tactics often employed by traffickers such as deception and oath-taking, even adults are beguiled to fall victim to the traffickers. Accordingly, a more holistic way of dealing with the problem would be to expunge the age limit specified in those sections of the Trafficking Act.

Secondly, the Trafficking Act incorporates the disfavoured principle of “double jeopardy” by providing in section 25 that, even where a person has been convicted abroad for an offence relating to trafficking in persons, that person shall on his or her return to Nigeria, after serving the sentence in that country, be liable to be tried in Nigeria “for bringing the image of Nigeria into disrepute”.Footnote 85 The person shall, on conviction, forfeit his or her assets to the Nigerian government in addition to serving a term of imprisonment not exceeding two years. The application of this section means that a person will be tried twice for the same offence, although in the second trial the offence would be termed “bringing the image of the country into disrepute”. It is submitted that, where a person convicted abroad for human trafficking is deported to Nigeria upon completion of his or her sentence, that person should be taken into custody and rehabilitated by the appropriate government custodial agencies to enable him or her to turn a new leaf and become an asset to society instead of being subjected to another trial and conviction in Nigeria. This would accord more with contemporary notions of criminal punishment which place great emphasis on the rehabilitation of offenders.Footnote 86

Another legislative measure taken by the Nigerian government in furtherance of its commitment to combating human trafficking is the enactment of the Child Rights Act in 2003. This act prohibits the forced or exploitative labour of children, including the employment of a child as a domestic help outside his or her own home or family environment.Footnote 87 It also prohibits buying, selling, hiring or otherwise dealing in children for the purpose of hawking or begging for alms or prostitution, slavery, trafficking or unlawful or immoral purposes.Footnote 88 The federal government urged state governments to enact similar laws in their states, since issues relating to children's rights are on the concurrent legislative list requiring the Child Rights Act to be adopted by individual state legislatures to be implemented in those states. The result is that, as at June 2010, 23 out of the 36 states in the country have enacted their own child rights laws.Footnote 89

In addition to this legislative approach, the Nigerian government has also signed memoranda of understanding with a number of countries, such as Italy, South Africa, Spain and the United Kingdom, and international agencies to collaborate with them in the fight against human trafficking. In particular, the memorandum of understanding between Nigeria and the UN Office on Drugs and Crime in May 2001 has been instrumental in the adoption of a number of programmes in the effort to combat human trafficking in the west African sub-region.Footnote 90 Moreover, the ECOWAS Declaration and Plan of Action Against Trafficking in Persons, also adopted in 2001, demonstrate the country's commitment alongside other ECOWAS states to pursue the fight against human trafficking in the sub-region.Footnote 91 The declaration essentially requires member states to commit themselves to measures that prevent trafficking in persons, protect and support victims of trafficking and establish co-operation among the various law enforcement officials at their borders.Footnote 92

Government policies and women-based programmes

The Nigerian government has also adopted a National Policy on Women, enunciating important policy measures affecting the rights and position of women and girls in Nigeria.Footnote 93 In relation to the subject of the present discourse, paragraph 13.3.9 of the National Policy on Women states that the “Government shall enact laws to protect women”, while paragraph 13.3.12 emphasizes the government's determination to check offences against morality, such as prostitution and soliciting, and take other appropriate and effective measures to reduce the increasing rate of prostitution.

Taking a cue from the National Policy on Women, a number of women-based programmes have been launched by first ladies in successive governments at both federal and state levels in Nigeria. Although invariably initiated by particular first ladies and thus supposed to be private organizations, the programmes have consistently received the funding and support of governments headed by their husbands. Most of these programmes are designed to sensitize women and girls and support them in measures to enhance their general status in society. Some are specifically aimed at tackling the practice of female trafficking. Notable among these programmes are the Better Life Programme,Footnote 94 Family Support programme,Footnote 95 Child Care Trust,Footnote 96 The Women Trafficking and Child Labour Eradication Foundation (WOTCLEF)Footnote 97 and The Adolescent Project.Footnote 98 While most of these programmes relate to particular aspects of women's empowerment, WOTCLEF and the Adolescent Project are primarily focused on eradicating the trafficking of women, child labour and prostitution. However, with the notable exception of WOTCLEF as shown below, the impact and effectiveness of these organizations in addressing the basic issues of concern for women and girls in Nigeria have been seriously questioned, as they have been identified as disguised channels of corruption. For instance, as Daniel Smith points out in respect of the Better Life Programme, its “activities were largely window dressing to cover up the fact that the NGO programme was a boondoggle benefiting the elite. Large amounts of money were spent on events at which elite women enjoyed a moment of recognition associated with being a patron delivering benefits to the people, while most of the programme's resources ended up in their own pockets”.Footnote 99

Three key problems with these programmes may be identified. First, their reach and effectiveness largely depends on the zeal and dynamism of the particular first ladies that initiate them; where the initiator is not very committed or not very dynamic, the programmes are known to have achieved only minimal success.Footnote 100 Secondly, and even more problematic, is the fact that the programmes hardly ever survive the regimes that initiate them as every succeeding first lady invariably prefers to be identified with a particular programme. Thirdly, their short duration seriously limits the programmes' effectiveness. The average life-span of the programmes may be put at six years, which does not enhance sustainability. It may however be argued that, in constantly bringing to the fore issues concerning women and girls in the country, the organizations add some value to the current struggle to address those problems, including human trafficking. Nevertheless, on balance, their record and impact in the efforts to combat human trafficking has been poor or at best minimal.

It is however significant that WOTCLEF has remained an on-going programme, even though the husband of the initiator is no longer vice president of the country. This organization's commitment to the fight against human trafficking is underscored by the fact that it strenuously fought for, and ensured the enactment of the Trafficking Act in the first place.Footnote 101 Indeed, the act started as a private member's bill initiated by WOTCLEF. Secondly, it has established a rehabilitation centre for assisting and rehabilitating victims of human trafficking. Thirdly, it has collaborative arrangements with national and international organizations involved in the fight against human trafficking such as the International Labour Organization, International Programme on the Elimination of Child Labour, United Nations Children's Emergency Fund, IOM and NAPTIP. In 2003, it was granted special consultative status with the Economic and Social Council of the United Nations, thus enabling it to observe and contribute to international efforts to tackle human trafficking and related social practices.Footnote 102 These factors place WOTCLEF in the front-line position among the various organizations involved in the fight against human trafficking in Nigeria, a position that can be further expanded and strengthened.

CONCLUSION

Human trafficking has become one of the most agitating social problems plaguing Nigerian society today. Its pervasiveness stems from the fact that traffickers see it as a means of survival in the face of the dire economic situation in the country, while victims of the external dimension of the practice, ignorant of the actual scope of their expected work abroad, accept such offers with the hope of enhancing their economic status. For their part, foreign receivers and hosts not only see the victims as sources of cheap labour for their farms and factories, but as veritable sex objects to be used for various forms of sexual gratification and exploitation. This confluence of apparently diverse interests has been the sustaining factor for the continuation of human trafficking in the country. Traditional practices in Nigerian communities and the desperation of childless women to have children “at all costs” are also being exploited by the traffickers in relation to the internal dimension of human trafficking.

In response to the challenge posed by human trafficking, and in recognition of its attendant adverse effects not only on the victims but on the country's image, the Nigerian government has taken a number of measures to stem it. The most prominent of these was the enactment, in 2003, of the Trafficking Act. This act contains several important provisions dealing with human trafficking and established an agency, NAPTIP, for the purpose of monitoring, coordinating, investigating and ensuring the prosecution of those involved in human trafficking. In pursuit of its mandate, NAPTIP has embarked on enlightenment campaigns, and arrested, prosecuted and secured the conviction of some traffickers. It has also established a rehabilitation centre in Lagos and constituted a victims trust fund to provide funds for the rehabilitation of victims. For their part, some women-based NGOs have also been at the forefront of the crusade against human trafficking in Nigeria.

While these efforts are commendable, the point remains that the enactment of statutory instruments by the government, though an important step, is not a panacea for the resolution of this problem, which has enormous social and economic dimensions. In other words, there is a compelling need for the government to demonstrate similar concern for the plight of the large majority of young women, boys and girls who are unemployed and are invariably pushed or attracted into human trafficking by the harsh economic realities in the country. Adequate attention must therefore be given to what have been described as the “push” and “pull” factors that promote human trafficking.Footnote 103 This consideration is crucial because, as Loring Jones et al point out, “[p]eople are ‘pushed’ out of poor countries where economic opportunity is lacking and ‘pulled’ into countries that have a higher level of economic prosperity with a corresponding demand for cheap labour”.Footnote 104 Addressing the social and economic phenomena that make people vulnerable to traffickers in the first place is one way of paying attention to the human dimension of trafficking and the root causes of the problem.Footnote 105 The need for states to pay sufficient attention to the root causes of human trafficking, even as they pursue the arrest and prosecution of traffickers, and to the rehabilitation of victims was recently underscored by the United Nations special rapporteur on trafficking in persons, especially women and children, Joy Ngozi Ezeilo, in her report to the UN General Assembly. She stated that “the root causes of trafficking, namely, growing poverty, high youth unemployment, gender inequalities and the demand for cheap labour, are not sufficiently addressed and trafficking continues to thrive as potential victims become more desperate to escape their unfortunate situations”.Footnote 106 This calls for sufficient incorporation of the human element in on-going economic reforms in order to reduce the high rate of unemployment and poverty in Nigeria.

Additionally, the suggested amendments to the Trafficking Act should be effected and the age limitation in some sections of the act expunged, since trafficking is a human rights violation, regardless of the age of the victim. On its part, NAPTIP needs to deploy more efforts towards the rehabilitation of victims of human trafficking to guarantee their effective re-integration into the wider society. This requires the creation of the enabling environment that will generate trust and confidence in the victims and re-establish their self-esteem.

Above all, enhanced public enlightenment is required to sensitize the citizenry to the dangers and adverse effects of the practice of human trafficking, not only on the individuals involved but on the corporate image and reputation of the country as a whole. Together with addressing the root causes of human trafficking, impressionable young girls, boys and even women need to be sufficiently educated about the consequences of such activities so that they can resist the overtures of traffickers or their agents. Enhanced education and enlightenment, as well as a considerable reduction of the high premium placed on wealth, irrespective of the source, constitute the veritable keys to the eradication of this practice. It is only when the problem of human trafficking is approached from these perspectives that sustained progress can be made towards extricating the country from the overbearing weight of this “new slavery”. Nigeria has the capacity and capability to achieve this desirable goal with the deployment of the requisite political will, determination and commitment.

Footnotes

1 Rodney, WHow Europe Underdeveloped Africa (1972, Bogle-L'Ouverture Publications) at 104–12. A more recent analysis of the impact of the slave trade on Africa is contained in Ilo, SCThe Face of Africa: Looking Beyond the Shadows (2008, Spectrum Books Ltd) at 68–82.

2 See Slavery Abolition Act 1804 in England, the Convention to Suppress the Slave Trade and Slavery, 1926, and the Convention Relative to the Slave Trade and Importation into Africa of Firearms, Ammunition and Spiritous Liquors, 1890.

3 It is estimated that global annual profits from human trafficking are around $31.6 billion, which is the third highest level of profits for illegal activities (behind arms dealing and narcotics trafficking). See UN Office on Drugs and Crime (UNODC) An Introduction to Human Trafficking: Vulnerability, Impact and Action (2008, UNODC) at 96.

4 Jones, L et al. “Globalization and human trafficking” (2007) 34/2Journal of Sociology and Social Welfare 107 at 108–09.

5 Bales, K “Expendable people: Slavery in the age of globalization” (2000) 53/2Journal of International Affairs 461 at 473–75; see also Wheaton, EM et al. “Economics of human trafficking” (2010) 48/4International Migration 114.

6 For example, the Convention for the Suppression of the Traffic in Persons and the Exploitation of the Prostitution of Others 1949, the Convention on the Rights of the Child, 1989, and the African Charter on the Rights and Welfare of the Child, 1999.

7 Adepoju, A “Review of research and data on human trafficking in sub-Saharan Africa” (2005) 43/1 and 2 International Migration 75 at 80–82; Fitzgibbon, K “Modern-day slavery? The scope of trafficking in persons in Africa” (2003) 12/1African Security Review 81 at 82. This is not to understate the role of other social factors such as family circumstances, and low levels of education and awareness of the implications of the practice.

8 The 2006 census put the country's population at 140 million and it is now estimated to have risen to well over 150 million; see: <http://www.nigeriamasterweb.com/nigeria06CensusFigs.html> (last accessed 12 April 2011). This is about one sixth of the population of Africa, currently estimated at one billion.

9 “Female trafficking in Nigeria” (28 March 2001) Africa News at 5; Carling, JMigration, Human Smuggling and Trafficking from Nigeria to Europe (2005, International Organization for Migration) at 45.

10 Department of State Trafficking in Persons: Ten Years of Partnering to Combat Modern Slavery (2010, Bureau of Public Affairs) at 255.

11 It is a subject that has necessitated several conferences, workshops and studies in the country. Madunagu, BETrafficking in Girls: Report of a Study in Akwa Ibom and Cross River States of Nigeria (2002, Clear Lines Publications).

12 It is to the credit of Nigerians that, after almost three decades of military rule, the country has remained under a democratic form of government since 29 May 1999. Although the complexion of the present democracy could be improved to enhance greater citizen participation in governance, it represents modest steps. See Ojo, EO and Adebayo, PF “Can Nigeria's nascent democracy survive?” (2009) 11/1Journal of Sustainable Development in Africa 1.

13 Jones et al “Globalization and human trafficking”, above at note 4 at 110–12.

14 Human smuggling has been described as “the 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”: art 3(a) Protocol Against the Smuggling of Migrants by Land, Sea and Air, 2000.

15 Trafficking Protocol, art 3. The protocol came into force on 25 December 2003 following the required number of ratifications. A critique of the limited human rights approach of this protocol to the problem of slavery is contained in Hathaway, JC “The human rights quagmire of human trafficking” (2009) 49 Virginia Journal of International Law 1 at 4–7. It may also be mentioned that one significant limitation of the protocol is that it addresses only the transnational dimension of human trafficking, while the Trafficking in Persons (Prohibition) Law Enforcement and Administration Act, 2003 commendably addresses both the internal and external dimensions of the practice, as shown later in this article.

16 See the UN Convention against Transnational Organized Crime (Ratification and Enforcement) Act, 2003.

17 This requirement could, arguably, have been met with the amendment where necessary of the Criminal and Penal Code provisions on human trafficking, coupled with a strong commitment to their enforcement.

18 The Rome Statute was adopted on 17 July 1998 and entered into force on 1 July 2002.

19 The Rome Statute, art 7(2)(c) (emphasis added).

20 Id, art 7(1).

21 Adopted by GA res 2200A (XXI), 16 December 1966. It entered into force on 23 March 1976.

22 The charter was adopted by the 18th Assembly of Heads of State and Governments of the Organization of African Unity on 28 June 1981 in Nairobi, Kenya and entered into force on 21 October 1986.

23 The protocol was adopted on 11 July 2003 and entered into force on 25 November 2005. See also arts 16(1), 27 and 29 of the African Charter on the Rights and Welfare of the Child, 1999 which makes similar provisions in relation to children.

24 1999 Constitution, sec 34(1)(a)(b).

25 Id, sec 46. On the enforcement of such rights in the country, see Falana, FFundamental Rights Enforcement in Nigeria (2nd ed, 2010, Legal Text Publishing Co Ltd).

26 (1991) 6 NWLR, pt 200, 708 at 764–65. See also Hon, STConstitutional Law and Jurisprudence in Nigeria (2004, Pearl Publishers) at 89.

27 It is on this score that a holistic approach to the problem is advocated in this article.

28 Bowman, CG and Kuenyehia, AWomen and Law in Sub-Saharan Africa (2003, Sedco Publishing Ltd) at 411; Awe, B “From drug to human trafficking” (2000) 2/1 and 2 WOPED NEWS at 5.

29 Madunagu Trafficking in Girls, above at note 11 at 53.

30 This is because the beneficiaries see this as a form of favour extended to them by the agents, which in the African context requires expression of gratitude.

31 Madunagu Trafficking in Girls, above at note 11 at 53.

32 Whyte, AThe Abuse of the Nigerian Child (2002, Evans Brothers Nigeria Publishers) at 33–39.

33 Appln no ECW/CCJ/AA/08/08, judgment no ECW/CCJ/JUD/06/08 of 27 October 2008. It is significant that Hadijatou has since received several awards for her courage and tenacity in pursuing this case through the various stages of the legal process, culminating in the ECOWAS court decision.

34 Id at 12. See for example, art 5 of the African Charter.

35 See U Kalu “Nigeria: How child trafficking network operates in South East” (30 July 2011) Vanguard, available at: <http://www.vanguardngr.com/2011/07/how-child-trafficking-network-operates-in-south-east/> (last accessed 29 August 2011).

36 Footnote Ibid. It is also reported that the price for a set of twins is N450,000 ($3,000).

37 Bowman and Kuenyehia Women and Law, above at note 28 at 423; Gbadamosi, OAInternational Perspectives and Nigerian Laws on Human Trafficking (2006, Network for Justice and Democracy) at 26.

38 Footnote Ibid. It has even been revealed that the fear of possible repercussions from the fetish oaths prevents victims from agreeing to testify against their traffickers when trafficking cases are taken to court: M Mojeed “How immigration officials and voodoo aid human trafficking business in Nigeria” (24 October 2008) The Punch, available at: <http://www.punchng.com/Articl.aspx?theartic=Art200810243203246> (last accessed 9 September 2011).

39 Mojeed, ibid.

40 Peel, EThe Law of Contract (12th ed, 2007, Sweet & Maxwell) at 567. There are, however, limited exceptions to the general rule under which contracts with minors are not void but voidable. Similarly, art 3(c) of the Trafficking Protocol makes a child's apparent consent to exploitation irrelevant.

41 Peel, ibid.

42 Id at 446.

43 Dimskal Shipping Co SA v International Transport Workers Federation [1992] 2 AC 152 at 165. Moreover, undue influence exerted on a party to a contract can lead to the setting aside of the contract in equity. See Royal Bank of Scotland v Etridge (No 2) [2002] 2 AC 773.

44 IOM Trafficking in Women to Italy for Sexual Exploitation (1997, IOM) at 2. See also International Labour Organization The Cost of Coercion: Global Report on the ILO Declaration on Fundamental Principles and Rights at Work (2009, International Labour Organization) at 6–8. It is based on this understanding that art 3 of the Trafficking Protocol states that the consent of the person being trafficked is irrelevant as long as the other components of the practice such as deception, coercion, exploitation are present.

45 K Fitzgibbon “Modern-day slavery?”, above at note 7 at 85; Bowman and Kuenyehia Women and Law, above at note 28 at 423.

46 UNODC Measures to Combat Trafficking in Human Beings in Benin, Nigeria and Togo (2006, UNODC) at 32–33.

47 Richards, K “The trafficking of migrant workers: What are the links between labour trafficking and corruption?” (2004) 42/5International Migration 147 at 156–58; IOM Human Smuggling and Trafficking from Nigeria to Europe (2006, IOM research series no 23) at 23–24. For an analysis of the socio-economic impact of corruption on Nigerian society, see Okogbule, NS “An appraisal of the legal and institutional framework for combating corruption in Nigeria” (2006) 13/1Journal of Financial Crime 92 at 93.

48 Jones et al “Globalization and human trafficking”, above at note 4 at 113–14.

49 See UN Interregional Crime and Justice Research Institute (UNICRI) Trafficking of Nigerian Girls in Italy: The Data, the Stories, the Social Services (2010, UNICRI) at 31, where the annual number of Nigerian victims of trafficking in Italy is put at between 8,000 and 10,000; J Carling “Trafficking in women from Nigeria to Europe” (2005) Migration Information Source, available at: <http://www.migrationinformation.org/Feature/display.cfm?ID=318> (last accessed 4 September 2011).

50 Bowman and Kuenyehia Women and Law, above at note 28 at 423.

51 Footnote Ibid.

52 Footnote Ibid.

53 Gbadamosi International Perspectives, above at note 37 at 26.

54 Awe “From drug to human trafficking”, above at note 28 at 4.

55 Van Impe, K “People for sale: The need for a multidisciplinary approach towards human trafficking” (2000) 38/3International Migration 1.

56 See above at note 24.

57 Eze, OC “African concept of human rights” in Kalu, AU and Osinbajo, Y (eds) Perspectives on Human Rights (1992, Federal Ministry of Justice) 8 at 15.

58 The Criminal Code which now applies in the southern states of Nigeria was first introduced into northern Nigeria in 1904 by the Lord Lugard administration and then extended to the whole country on 1 June 1916. The Penal Code applicable in the north came into effect on 30 September 1960. The latter was informed by the need for a distinct Sharia based criminal justice system to accord with the generally operative Islamic culture of the northern part of Nigeria. An historical account of the two codes is provided in Okonkwo, CO and Naish, MECriminal Law in Nigeria (2nd ed, 1980, Sweet & Maxwell) at 4–10.

59 This provision resulted from the international abolition of slave trade and was intended to deal with such practices that were still being carried on in some parts of the country, then a colony under British suzerainty.

60 It is significant that these provisions are retained in the Sharia penal codes now adopted by some states in northern Nigeria. See, for example, Zamfara State Sharia Penal Code Law No 10, 2000 and the Kano State Penal Code Law, 2000. For an analysis of the implementation of these codes, see Ostien, P (ed) Sharia Implementation in Northern Nigeria 1999–2006: A Sourcebook Vol IV (2007, Spectrum Books Limited) at 1–21.

61 For instance, the Independent Corrupt Practices and Other Related Offences Act, 2000 enacted by the Obasanjo regime largely replicates the Corrupt Practices Decree promulgated by the military government in 1975. This practice was even more pronounced during the country's various military regimes. See Owoade, MA “The military and the criminal law in Nigeria” (1989) 33/2Journal of African Law 135 at 148.

62 No 24 of 2003. The act was amended in 2005 through the Trafficking in Persons (Prohibition) Law Enforcement and Administration (Amendment) Act to increase the penalties for some offences under the Trafficking Act and make other sundry provisions.

63 Above at note 15.

64 The effective husbanding of these functions requires dynamism, single-minded commitment and sagacity on the part of the Agency's administrators. To enable the Agency to function effectively, the Trafficking Act through sec 8 (a–d) established four units: the Investigation Unit, Legal Unit, Public Enlightenment Unit, and the Counselling and Rehabilitation Unit. The Agency is also authorized under sec 8(e) to establish such other units as it may deem appropriate with the approval of the board.

65 This definition encompasses, in several respects, the circumstances prohibited in sec 369 of the Criminal Code.

66 This provision is similar in important respects to sec 275 of the Penal Code.

67 This makes the involvement of regional and sub-regional organizations such as the African Union and ECOWAS crucial in the fight against human trafficking.

68 See also sec 23 of the Trafficking Act. This shows the multi-dimensional aspect of the trade.

69 Id, sec 21.

70 Id, sec 36(a). This is in tandem with the provisions of art 6 of the Trafficking Protocol which requires states to provide assistance to and protection for victims of trafficking and ensure that their human rights in relation to privacy and confidentiality are observed.

71 Id, sec 36(f).

72 Id, sec 36(g).

73 Id, sec 36(j).

74 Id, sec 35(c).

75 Id, sec 35(a).

76 Above at note 62.

77 See “Nigeria: Human trafficking - NAPTIP rescues 4,000 victims, convicts 65” (1 December 2009) Leadership Newspaper, available at: <http://www.allafrica.com/stories/200912020147.html> (last accessed 12 April 2011).

78 Unreported suit no B/15C/2004; judgment delivered by the High Court of Justice, Benin City on 19 November 2004.

79 “Woman, 35, bags 15 yrs jail term for human trafficking” (15 January 2010) The Vanguard, available at: <http://www.vanguardngr.com/2010/woman-35-bags-15-yrs-jail-term-for-human-trafficking.> (last accessed 11 April 2011).

80 Footnote Ibid.

81 Above at note 35. The raid carried out on 28 May 2011 at two supposed maternity homes, Cross Foundation, and Double Research Clinic and Laboratory, both in Aba, south eastern Nigeria, found and rescued 32 and 41 teenage expectant mothers who were kept in these places respectively, pending the delivery of their babies for the sale transactions to take place. The traffickers / operators of the “baby factories” are now facing prosecution.

82 See Department of State Trafficking in Persons Report (2011, Media and Public Affairs) at 279; “Nigeria commended on human trafficking” (27 June 2011) Nigerian Tribune at 1.

83 These include secs 11, 12, 13, 14, 17, 18, 19, 21, 25 and 26.

84 No 26 of 2003. This enactment draws heavily on the UN Convention on the Rights of the Child adopted in 1989.

85 There is however no doubt that such activities impact negatively on the country's image abroad.

86 While not ignoring retribution and deterrence as principles of criminal punishment, the pendulum has now swung in favour of the rehabilitation of offenders as a central goal of punishment: Easton, S and Piper, CSentencing and Punishment: The Quest for Justice (2005, Oxford University Press) at 290.

87 Child Rights Act, 2003, sec 28.

88 Id, sec 30.

89 Department of State Trafficking in Persons, above at note 10 at 256. Since 2010, several other states in the country have also enacted child rights laws.

90 One of the benefits of this agreement was the commissioning of a report by UNODC on possible measures to be adopted in combating human trafficking in Benin, Nigeria and Togo. In 2006, the UNODC also produced a training manual under its Assistance for the Implementation of the ECOWAS Plan of Action against Trafficking in Persons.

91 Declaration on the Fight against Trafficking in Persons, adopted at the 25th ordinary session of the Authority of Heads of State and Governments, Dakar, 20–21 December 2001. This is because the ECOWAS Protocol on Free Movement of Persons, Residence and Establishment (adopted on 29 May 1979) is often used as a shield for human trafficking.

92 See Declaration id, paras 12, 14, and 16.

93 The National Policy on Women was adopted in July 2000. The prevalence of prostitution, corruption and similar practices has been traced to the poor state of the economy and the collapse of corporate morality in the country: Achebe, CThe Trouble with Nigeria (1983, Fourth Dimension Publishers) at 46–55.

94 This programme was initiated by the late Marian Babangida, Nigeria's then first lady; it functioned between 1986 and 1993.

95 Initiated by Mariam Abacha, wife of the late General Sani Abacha; it functioned between 1993 and 1998.

96 This programme was initiated by the late Stella Obasanjo upon the assumption of office of her husband Chief Olusegun Obasanjo in May 1999; see “Child Care Trust launched” (21 November 1999) The Guardian at 8. It functioned until her death on 23 October 2005.

97 This is the brain-child of Titi Abubakar, the wife of the former vice president, and is specifically targeted at tackling female trafficking. The main direction of this programme is encapsulated in an address presented by Mrs Abubakar at a public forum on human trafficking held in Rivers State on 17 January 2001: Whyte The Abuse of the Nigerian Child, above at note 32 at 282–85.

98 This is a programme of Justice Mary Odili, now a justice of the Supreme Court of Nigeria and wife of former Rivers State Governor Peter Odili. It must be observed that the wives of some current state governors also have similar programmes either targeted at women, adolescents or infants.

99 Smith, DJ “Corruption, NGOs, and development in Nigeria” (2010) 31/2Third World Quarterly 243 at 249. Unsurprisingly, the programme began to be described with such strap-lines as “Better life for rich women” or “Better life for ruling women”: id at 250.

100 Thus even the justly criticized Better Life Programme was more visible and arguably more impactful than the Family Support Programme because of the different approaches adopted by their initiators.

101 Available at: <http://www.wotclef.org/activities.html> (last accessed 7 February 2011).

102 Footnote Ibid.

103 Jones et al “Globalization and human trafficking” above at note 4 at 112. The “push” and “pull” factors for human trafficking as they apply to the Republic of Benin, Nigeria and Togo are examined in UNODC Measures to Combat Trafficking, above at note 46 at 25–28.

104 Jones, ibid. See also Chuang, J “Beyond a snapshot: Preventing human trafficking in the global economy” (2006) 13 Indiana Journal of Global Legal Studies 137 at 140–47.

105 Id at 160–61. This will also be in tandem with art 9(4) of the Trafficking Protocol which specifically requires states to “take or strengthen measures, including through bilateral or multilateral cooperation, to alleviate the factors, such as poverty, underdevelopment and lack of equal opportunity” that make persons, especially women and children, vulnerable to trafficking.

106 Report to the General Assembly in accordance with Human Rights Council res 8/12: UN doc A/64/290, 12 August 2009 at 22.

Ibid
Ibid
Ibid
Ibid
Ibid
Ibid