2021 | Book

Human Trafficking Under International and Tanzanian Law

Author: Nicksoni Filbert Kahimba

Book Series : International Criminal Justice Series

Part of: Springer Professional "Business + Economics & Engineering + Technology" , Springer Professional "Business + Economics"

Table of Contents

About this book

This book deals with the problem of human trafficking in Tanzania in the light of international law and considers human trafficking as both a criminal offence in Tanzania and a human rights violation within international law in general.

The book broadens the reader’s understanding of the subject of human trafficking and Tanzania’s legal approach to the issue and allows the reader to grasp Tanzania’s anti-trafficking piecemeal efforts from the 1970s onwards, the reasons that made Tanzania ratify the Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children, supplementing the United Nations Convention against Transnational Organized Crime, and Tanzania’s National Assembly's deliberations regarding the enactment of the Anti-Trafficking in Persons Act of 2008 and the impact those deliberations have had on the current legal framework of Tanzania.

It provides a firsthand critical analysis of the Tanzania anti-trafficking law, pointing out its strengths, weaknesses and areas for improvement in a comprehensive manner such as has never been attempted before. The book shares many tips and even insights on how to read and apply Tanzania’s 2015 Anti-Trafficking Regulations in relation to the main law harmoniously. It also offers complete instructions for common-law practitioners, court personnel, researchers and other anti-trafficking personnel on how to investigate and prosecute human trafficking, prevent trafficking, both lawfully and from occurring, as well as assist victims of human trafficking and protect their human rights.

Nicksoni Filbert Kahimba is a doctoral researcher in the Faculty of Law of the Humboldt Universität zu Berlin in Berlin, Germany. The author also lectures at the School of Law of the University of Dar es Salaam in Tanzania.

Frontmatter

Chapter 1. Introduction to the Book

Abstract

This chapter introduces the subject of trafficking in persons both from its international and domestic contexts. The chapter provides comprehensive background information regarding the current state of international law on human trafficking and the extent of the research and literature that currently exist on the subject. Thereafter, chapter introduces the problem of human trafficking in Tanzania from the existing research materials to its current crystallisation in the Anti-Trafficking in Persons Act 2008 and its Implementing Regulations. This chapter then provides a brief overview of the current anti-trafficking legal and institutional framework in terms of the crimes it criminalises, the extent to which it protects victims of human trafficking, the nature of its prevention provisions and generally, the strengths it portrays and the challenges this framework presents, all of which necessitated the writing of this book. Finally, the chapter provides the objective for writing this book and outlines, in a summarised manner, the basic content of all the remaining chapters of the book.

Nicksoni Filbert Kahimba

International Anti-trafficking Legal Frameworks

Frontmatter

Chapter 2. Understanding Trafficking in Persons

Abstract

This chapter forms the substantive section on the historical genesis of the crime of trafficking in persons under international law. The chapter intends to provide the reader with a historical understanding of the stages and phases that took place and which finally resulted in the international community adopting the current TIP Protocol 2000 which provides the most widely accepted definition of what amounts to trafficking in persons. The chapter defines the crime of human trafficking and analyses its constituent three elements of the action, means and purpose elements and points out its implications for the states parties to the TIP Protocol 2000 and the Organised Crime Convention 2000. The chapter examines almost all the individual constitutive components of the action, means and purpose elements. This analysis serves to lay a foundation for examining the criminalisation provisions of the Anti-Trafficking in Persons Act 2008 in Chap. 7. It also helps to gauge Tanzania’s compliance or implementation of its international and domestic anti-trafficking obligations assumed under the TIP Protocol 2000 in so far as the obligation to criminalise the crime of trafficking in persons is concerned.

Nicksoni Filbert Kahimba

Chapter 3. International Legal Regime

Abstract

This chapter examines the anti-trafficking international legal regime. It is premised on the understanding that trafficking is an objectively real and serious problem that justifies the presence of an extensive array of legal instruments which, directly or indirectly, aim at preventing and combating it. In doing so, the study examines the various instruments adopted to fight trafficking at the international and regional levels. The study begins this examination by analysing the primary anti-trafficking and anti-migrant smuggling legal frameworks. These legal frameworks are contained in the Organised Crime Convention 2000 through the TIP Protocol 2000 and the Migrant Smuggling Protocol 2000. The examination of the specialty anti-trafficking regional instruments and other international and regional human rights legal frameworks with a bearing on trafficking follows thereafter. This chapter also highlights the past and recent legal developments in the criminalisation of the crime trafficking in persons in Africa and its challenges. The chapter lays the foundation upon which to base states’ anti-trafficking obligations as presented in Chap. 5 of this book.

Nicksoni Filbert Kahimba

Chapter 4. State Responsibility for Trafficking

Abstract

This chapter provides a considered encapsulation of the international law principle of state responsibility. Its purpose is to show that although trafficking in persons is factually a crime committed by private persons or non-state actors, circumstances exist, under international law, upon which states can be held accountable nonetheless. These circumstances and the rules upon which a conduct becomes attributed to the state for the purpose of international responsibility are discussed in this chapter based on the work of the International Law Commission (2001) Draft Articles on the Responsibility of States for Internationally Wrongful Acts. Furthermore, this chapter uses the international human rights law principle of due diligence to argue for clear applicability of the principles of international state responsibility for acts of trafficking in persons, especially in circumstances where such acts result from non-state actors. The examination of the doctrine of state responsibility is also premised on the understanding that ordinarily, only states contain such means as to enforce and give effect to obligations emanating from customary and treaty law to which states are the chief subjects.

Nicksoni Filbert Kahimba

Chapter 5. Anti-trafficking Obligations

Abstract

This chapter examines states’ international anti-trafficking obligations. These obligations are the obligation of a criminal justice response, the obligation to prevent and combat trafficking and the obligation to assist, support, protect and provide remedies for victims of trafficking. This chapter interrogates states’ anti-trafficking obligations as provided in the international anti-trafficking and human rights instruments as well as policy documents. Comparatively, the chapter points out the strengths and weaknesses of the anti-trafficking legal regime in relation to how it encapsulates and elucidates the anti-trafficking obligations. Thus, this chapter is premised on Chap. 4, which has discussed the doctrine of state responsibility for trafficking by setting out circumstances upon which states incur responsibility for trafficking under international law, and Chap. 3 on the international legal regime, which provided a considered exposition of the international anti-trafficking legal regime. Even more importantly, the present chapter lays a strong foundation for examining Tanzania’s implementation of its domestic and international anti-trafficking obligations in Chaps. 7 and 8 of this book.

Nicksoni Filbert Kahimba

Tanzania’s Legal and Institutional Anti-trafficking Framework

Frontmatter

Chapter 6. Trafficking in Persons in Tanzania

Abstract

This chapter of the book introduces the problem of trafficking in persons in Tanzania. It provides a general profile of the problem of human trafficking from its historical background of the 1970s, the nature of the trafficking itself that is prevalent in Tanzania, factors that have made the crime of human trafficking to thrive and exist in Tanzania, initial Tanzania’s legal response before 2008 and the legal and other factors that necessitated the adoption of the current anti-trafficking legal and institutional framework. In considering the early pre-2008 legal response, the chapter provides a critical first-hand examination of this legal framework, especially whether it contained actual provisions which criminalised the crime of trafficking in persons. It also points out the strengths and weaknesses of the pre-2008 framework that made the enactment of the current legislation an imperative. The chapter likewise considers some of the arguments that were tabled before the floor of the National Assembly of the Parliament of Tanzania and the impact they bear on the current Anti-Trafficking in Persons Act 2008.

Nicksoni Filbert Kahimba

Chapter 7. Criminal Justice Response

Abstract

This chapter of the book provides a comprehensive and analytical examination of the obligation of a criminal justice response as contained in the Anti-Trafficking in Persons Act 2008 and its Main Regulations 2015. The examination of this mandatory international legal obligation is gauged against similar obligations as discussed and analysed in Chap. 5 of this book. The present chapter considers all aspects of this obligation as contained in this legal framework. Among others, it points out the basic and peculiar features of this legal framework, how its criminalisation provisions have been drafted, the difficult legal relationship between the 2008 Act and its Main Regulations 2015, coherence with international law, especially the TIP Protocol 2000 and areas in which the Tanzanian legal framework either lags behind or is in agreement with or even takes an advanced step compared to the position currently existing under international law. More importantly, this chapter points out some implications from the major legal shortcomings that this legal framework presents in the discharge of this international obligation and the chapter goes on to suggest some areas for improvement. The remaining two international obligations—obligation to prevent human trafficking, and the obligation to provide victims of human trafficking with support, assistance and protection, including access to remedies—are considered in Chap. 8. This in no way waters down the reality that these three international anti-trafficking obligations are interrelated and even overlap.

Nicksoni Filbert Kahimba

Chapter 8. Prevention of Human Trafficking and Protection of Victims

Abstract

This chapter of the book analyses the Anti-Trafficking in Persons Act 2008’s remaining two obligations. These are the obligations to prevent human trafficking and the provision of support, assistance, protection and remedies for victims of human trafficking. These two obligations are discussed against the background of Chap. 5 which examined the content of, among others, these two anti-trafficking obligations under international anti-trafficking law. The first obligation, that of a criminal justice response, was discussed in Chap. 7. The present chapter points out the mandatory nature in which the prevention obligation is presented in the 2008 Act. It portrays the scattered and subsumed nature in which this obligation is presented in the legislation and how the Main Regulations 2015 largely help to provide more substantive provisions for preventing and combating human trafficking. Thereafter, the obligation to support, protect and assist victims, including access to remedies, is examined. As shown in this chapter, unlike the prevention obligation, the 2008 Act contains extensive provisions encapsulating the substance of this obligation. Furthermore, it establishes the major limitations that this legal framework presents in the discharge of these two obligations and their ensuing ramifications. The chapter also offers some recommendations to rectify such legal limitations.

Nicksoni Filbert Kahimba

Chapter 9. Institutional Framework and the Action Plans

Abstract

This chapter of the book explores the National Anti-Trafficking in Persons Action Plans and the institutional framework under whose mandate is entrusted the discharge and implementation of the anti-trafficking obligations. Section 9.1 surveys the institutional framework from the national to the local government level, including its inclusion of the private sector and the international and regional institutions in the prevention of human trafficking and protecting victims in Tanzania. Section 9.2 scrutinises the content of the national anti-trafficking Action Plans. It considers the purpose of their formulation, the content of what they present and the role they play in gauging Tanzania’s actual implementation of its domestic and international anti-trafficking obligations. Section 9.3 examines some of the cases decided by the courts in Tanzania and their overall impact on the development of the anti-trafficking jurisprudence of the country. Besides, the chapter provides a limited comparative study of the decisions from other Commonwealth jurisdictions which provide an informed practice of countries with similar legal structures so as to provide an objective set of recommendations for Tanzania.

Nicksoni Filbert Kahimba

Summary, Conclusion and Recommendations

Frontmatter

Chapter 10. Summary, Conclusion and Recommendations

Abstract

This final chapter of the book provides a comprehensive summary of the entire work. It gives an objective summary that restates the main arguments and findings that this book has presented from Chaps. 1 to 9. The book also provides a general conclusion and ends with a set of recommendations for the most prominent legal shortcomings that have been hereto identified.

Nicksoni Filbert Kahimba

Backmatter

Title: Human Trafficking Under International and Tanzanian Law
Author: Nicksoni Filbert Kahimba
Publisher: T.M.C. Asser Press
Electronic ISBN: 978-94-6265-435-8
Print ISBN: 978-94-6265-434-1
DOI: https://doi.org/10.1007/978-94-6265-435-8