Investigative and Prosecutorial Hurdles in Combating Human Trafficking

ADRRI JOURNAL OF ARTS AND SOCIAL SCIENCES
E-ISSN: 2343-6891
VOL. 18, No. 1(6), April, 2021-June, 2021
Published by Africa Development and Resources Research Institute
ADRRI JOURNALS (www.adrri.org)
E-ISSN: 2343-6891 VOL. 18, No. 1 (6), April, 2021- June, 2021
The criminal justice response to human trafficking: Exploring the investigative
and prosecutorial hurdles
Ishmael Mugari1 and Emeka E Obioha2
1,2Department of Social Sciences
Walter Sisulu University

Mthatha, South Africa
Email: ishiemugari@gmail.com, emekaobioha@gmail.com
1Correspondence: ishiemugari@gmail.com
Available Online: 30th June, 2021
URL: https://www.journals.adrri.org/
Abstract
Much has been written on the scourge of human trafficking, with majority of previous research
focussing on trends, forms, as well as the regulatory framework for countering the scourge. Despite
the presence of a vast body of knowledge on human trafficking, less attention has been given to the
operational dynamics that are involved in the investigation and prosecution of human trafficking
cases. This paper, which is based on a literature and documentary survey, evaluates the challenges
that are encountered by the criminal justice players in responding to human trafficking. The paper
specifically focuses on the challenges that are faced by law enforcement agencies in the investigation
of human trafficking, as well as the challenges that are faced in the prosecution of human trafficking
offenders. Whilst the paper takes a global approach to the problem, much attention is given to South
Africa and Zimbabwe- two neighbouring Southern African nations.
Keywords: human trafficking, investigations, prosecution, victim protection
[Cite article as: Mugari, I. and Obioha, E. E. (2021). The criminal justice response to human trafficking:
Exploring the investigative and prosecutorial hurdles. ADRRI Journal of Arts and Social Sciences, Ghana: Vol.
18, No.1 (6), Pp.54-69, E-ISSN: 2343-6891, 30th June, 2021.]
Received: (March 22, 2021)
Accepted: (June 30, 2021)
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INTRODUCTION
For the past two decades, the human trafficking problem has received heightened
global, regional and national attention. This attention has been necessitated by the
gruesome nature of the offence, and its debilitating implications on international,
regional and national peace and security (Bello & Olutola, 2018). The human and
social ramifications of human trafficking are huge- “from physical abuse and torture
of victims to the psychological and emotional trauma, as well as economic and
political implications” (United Nations Office on Drugs and Crime (UNODC),
2008:4). Given the concerns over the implications of human trafficking on human
security, legal instruments were set at international and regional levels, with the aim
of creating legal standards aimed at protecting people from the scourge. The most
notable effort was the United Nations Protocol to Prevent, Suppress and Punish
Trafficking in Persons, Especially Women and Children of 2000 (popularly known as
the Palermo Protocol), “which however entered into force on 25 December, 2003”
(Jones & Winterdyk, 2018:4). The Palermo Protocol obligates nations to ratify it and
“to enact domestic criminal laws that outlaw practices that are defined as human
trafficking” (Jones & Winterdyk, 2018:5). The Protocol has also been complimented
by a number of legal policy frameworks at regional and national levels (Bello, 2018)
and had been ratified by 166 countries by the year 2018. Whilst it has been argued
that “there are no once-and-for all solutions to human trafficking” (Jones &
Winterdyk, 2018:4), the emphasis on a sound legal framework, underpinned by the
provisions of the Palermo Protocol, situates normative criminal sanctions as an
important intervention measure against human trafficking. To this end, nations look
up to law enforcement officials for the identification and investigation of human
trafficking offences (Farrel & Reichert, 2017), whilst the court plays its role through
the prosecution of trafficking offenders.
Notwithstanding the presence of a seemingly sound regulatory framework against
human trafficking, as well as sound policy frameworks for dealing with the scourge,
the problem of human trafficking continues. This then brings the question on
whether the laws are adequate, or whether the challenge is on the operational
aspects of enforcement by the police and the courts. Despite the presence of a vast
body of literature on the scourge of human trafficking, not much has been done on
the area of the investigative and prosecutorial hurdles. Whilst there have been
numerous challenges in the measurement of the magnitude of human trafficking
(Farrel & Reichert, 2017; Van der Watt, 2018), documentary evidence points to the
fact that the magnitude is high. For example, the International Labour Organisation
(ILO) notes that about “40 million people were victims of human trafficking in 2018”
(Walk Free Foundation, 2018:1). Earlier, the ILO had estimated that “20.9 million
people were victims of forced labour and human trafficking worldwide” (Farrel &
Reichert, 2017:39). However, concern has been raised over the huge disparities
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between the prevalence rate of human trafficking and cases that have been officially
filed with law enforcement organisations or prosecuted through the law courts. As
an example, despite the annual prevalence rate of human trafficking running into
several millions of victims, the United States Department of State’s annual
Trafficking in Persons Report data indicated that in 2014, “only 44 462 victims of
human trafficking had been identified by the police worldwide, with only 10 051
being prosecuted” (US Department of State, 2015:3). Moreover, there were just 4,500
convictions globally (US Department of State, 2015). For the year 2019, 118,932
victims were identified, with a total of 11,841 prosecutions and 9,548 convictions (US
department of State, 2020). A look at the wide disparity between the victims
identified and the number of prosecutions points to the investigative challenges,
coupled by lack of adequate evidence to warrant prosecution. Similarly, the
disparity between the prosecutions and the convictions is also a cause for concern
which warrants an investigation. Consequently, there is a huge number of human
traffickers who are escaping punishment (Davy, 2016), yet the effectiveness of any
criminal justice response to human trafficking is measured by an increase in
prosecution. Moreover, failure to arrest and prosecute traffickers is viewed as “one
of the key contributors to impunity enjoyed by traffickers” (Davy, 2016:115;
Gallagher & Surtees, 2012:10).
This paper examines the challenges that are faced during the process of investigating
and prosecuting human trafficking cases. Whilst the paper takes a global view,
emphasis is placed on South Africa and Zimbabwe- two neighbouring Southern
African countries which have been characterised by high incidents of human
trafficking. South Africa is predominantly a destination country for human
trafficking victims, with majority of the victims being poor and low-skilled migrants
from other Southern African countries such as Zimbabwe (Roper et al, 2020; SADC
Secretariat, 2016; Van der Watt, 2018). On the contrary, Zimbabwe is predominantly
a source country for human trafficking victims, whose vulnerability has been
exacerbated by acute economic challenges. The two nations have also been
characterised by low detection, prosecution and conviction on human trafficking
offences. For example, in its 2020 human trafficking report, the US Department of
State notes that the South African government prosecuted 71 alleged traffickers,
resulting in a conviction of eight traffickers. The report also noted that the South
African government failed to comprehensively monitor or investigate labour
trafficking cases in the agricultural, mining, construction, and fishing sectors (US
Department of State, 2020). In the case of Zimbabwe, only 74 cases were reported
between June 2016 and December 2018, and convictions were secured in just six of
these cases (Government of Zimbabwe, 2019). Compounding the low prosecution
and conviction rates in Zimbabwe is the lengthy time for finalising cases. The US
Trafficking in Persons Report for 2020 notes that there was a backlog of cases that
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were reported in 2016, with the government of Zimbabwe reporting lack of progress
on these cases (US Department of State, 2020).
Given the challenges that have been faced in investigating and prosecuting human
trafficking offences globally, and also particularly in South Africa and Zimbabwe,
this paper explores the reasons behind these challenges. This paper addresses to
objectives: to document the challenges that are being faced by law enforcement
officials in detecting and investigating human trafficking cases; and to evaluate the
obstacles that hinder the effective prosecution of human trafficking cases. In this
paper, we address two research questions: (1) what challenges are being faced by
law enforcement officials in detecting and investigating human trafficking cases?;
and (2) what obstacles hinder the effective prosecution of human trafficking cases?
In order to address these research questions, we conducted a literature survey of
articles and policy documents on the investigations and prosecution of human
trafficking offences. Notwithstanding the presence of numerous empirical studies on
human trafficking, mainly in South Africa, very few studies have focussed on the
investigative and prosecutorial hurdles. In some studies, these key issues were just
briefly mentioned, yet these are critical issues that lie between success and failure to
effectively tackle human trafficking. As regards the prosecution of human trafficking
cases, despite the international attention to the human trafficking phenomenon,
“there is little research on the specific subject of human trafficking prosecutions and
barriers to convictions of traffickers” (David, 2012; Davy, 2016:116). Thus, this paper
specifically dwells on the investigations and prosecution aspects of human
trafficking control by highlighting the challenges that impede these key processes.
To give an appreciation of the magnitude of human trafficking in the two nations,
we start by giving a brief overview of the human trafficking trends in South Africa
and Zimbabwe.
Overview of human trafficking trends in South Africa and Zimbabwe
Human trafficking in South Africa is predominantly influenced by pull factors
emanating from circumstances which force victims to migrate from other countries
to South Africa or from rural areas to urban areas, rendering them vulnerable to
exploitation. Harsh economic conditions, coupled with “poverty, unemployment
and a lack of prospects in the countries of or areas of origin”, have also compounded
the problem of human trafficking (SADC Secretariat, 2016:42; Sambo & Spies,
2020:78). The country “is also a transit point for intercontinental human trafficking”
due to its air transport links to international destinations (SADC Secretariat, 2016:42).
Moreover, given South Africa’s status as the economic hub for the Southern African
region, victims from other African countries are lured by the perceived job and other
economic opportunities in the nation, resulting in them falling prey to human
traffickers. Thus South Africa “provides an enabling environment and market for the
services of persons trafficked from other countries”, who are then exploited in the
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construction, mining, agriculture and fisheries industries (Bello & Olutola, 2020:3).
Also emanating from these push/ pull factors is the ability of traffickers and other
criminal networks to freely move between South Africa and its neighbouring
countries (Roper et al, 2020), including Zimbabwe. Zimbabwe is largely a source of
human trafficking victims (SADC Secretariat, 2016; Zengenene, 2020) and
Zimbabweans are mainly trafficked to neighbouring countries, mainly South Africa
and Botswana, as well as to the Middle East and Asian countries (Parliament of
Zimbabwe, 2018; SADC Secretariat, 2016). Zimbabwe is also a transit country for
trafficking victims from African countries such as Ethiopia and Somalia to South
Africa (SADC Secretariat, 2016; US Department of State, 2020). The predominant
push factors for human trafficking in Zimbabwe are poverty and unemployment
(Parliament of Zimbabwe, 2018; SADC Secretariat, 2016). In both countries, there is
also internal human trafficking, which is characterised by trafficking of women and
young men from rural areas to urban centres, where they are forced to engage in
illegal activities such as prostitution, begging, and to commit various other criminal
activities (Bello & Olutola, 2020; Parliament of Zimbabwe, 2018; US Department of
State, 2020).
METHODOLOGY
The paper is based on a documentary survey of research articles and documents on
human trafficking. An internet search was conducted using the following search
phrases: Challenges in investigating human trafficking; challenges in the prosecution
of human trafficking cases; investigative and prosecutorial hurdles to human
trafficking; human trafficking in Zimbabwe; and human trafficking in South Africa.
After downloading the necessary articles and documents, the researchers browsed
through the abstracts and executive summaries to identify appropriate articles for
review. For an article to be considered for review, the article should have been
published in peer-reviewed journals. For other documents, they were supposed to
have been authored by reputable national and international bodies.
A total of 40 articles and documents were reviewed for this paper. Of the 40 articles
and documents, 27 were articles from peer-reviewed journals, out of which 20 were
from Scopus-indexed journals. Seven of the documents were written by international
and regional organisations such as: SADC (n=2); EUROPOL (n=1); UNODC (n=1);
International Organisation for Migration (IOM) (n=1); Walkfree Foundation (n=1);
and Inter-agency Coordination Group Against Trafficking in Persons (ICAT) (n=1).
The remaining six documents were authored by governments as follows: US
Department of State (n=2); Australian Government (n=2); and Government of
Zimbabwe (n=2). All these policy and government documents provided evidence
and an in-depth understanding of the challenges that are faced in the investigation
and prosecution of human trafficking cases.
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Challenges in the investigation and prosecution of human trafficking cases
In this section, we now explore the challenges that are encountered when
investigating and prosecuting human trafficking cases. The section looks at both the
global view of these challenges as well as the view from the South African and
Zimbabwean perspectives. Whilst it could have been ideal to discuss the two
criminal justice processes separately, the two are intertwined, hence we combine
them. Although the investigation and the prosecution aspect form the gist of this
paper, identification of the crime is equally important and we will first touch on the
challenges in the identification of human trafficking cases. We discuss the issues in
five themes namely: the identification hurdle; the challenges due to complexities in
the investigation of human trafficking cases; complexities posed by illegal migration;
challenges with victim and witness cooperation; and poor victim and witness
protection mechanisms.
The identification hurdle
The identification of human trafficking offenses is the first step in the process of
bringing the cases forward for prosecution. Unlike other crimes in which victims
self-report to law enforcement officials, “human trafficking is not a crime in which
victims self-report, meaning that human trafficking will remain under-identified”
(Farrel & Reichert, 2017:40). Empirical research on law enforcement responses to
trafficking in persons has identified a plethora of obstacles to identification of the
offence (for example: Bello, 2018; Farrel et al, 2010; Farrel & Reichert, 2017). Chief
among the reasons for poor identification is the lack of knowledge about the crime
by law operational law enforcement officers. Farrel et al (2010) contend that
operational police officers are uninformed about the problem of human trafficking
and the challenge is compounded by limited experiences in the investigation of the
offence. This problem is echoed in a study by Renzetti et al (2015), in which they note
that although top level police officers in Kentucky have received some training on
human trafficking, the training did not trickle down to patrol officers. Several other
studies have also identified lack of training on the part of police officers as an
impediment to the identification of human trafficking cases (for example: Farell,
2014; Farrel et al, 2010; Grubb & Bennet, 2012). Without proper training, operational
law enforcement officers “are unlikely able to identify human trafficking during the
course of routine police activities” (Farrel & Reichert, 2017:41). In Australia, Davy
(2016) notes a scenario in which police sometimes identify human trafficking cases as
illegal employment and illegal migration, and this can be attributed to limited
understanding on the nature and elements of the offence. In their study on the
challenges of investigation and prosecution of human trafficking cases in 12 counties
in the United States, Farrel et al (2014:46) found out that “state prosecutors
overwhelmingly charge human trafficking perpetrators with other lesser crimes”.
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There is also a general perception that human trafficking is not a local problem and
this view, coupled with limited knowledge of anti-human trafficking laws,
negatively impacts the processes of identifying, investigating and prosecuting
human trafficking cases (Farrel et al, 2012). Linked to this perception is the officers’
expectation on how trafficking victims should look like. There is a tendency of police
officers to take a stereotyped narrative of the victims, for example, highly vulnerable
young women who are locked up or chained to a bed (Farrel & Reichert, 2017). As a
result, on encountering human trafficking incidents, law enforcement officials
“struggle to distinguish human trafficking cases from other existing crimes such as
prostitution” (Farrel & Reichert, 2017:43; Farrel et al, 2015:317). In South Africa, Bello
& Olutola (2018:271) note that several stakeholders in the fight against human
trafficking “do not have a robust understanding of the concept of human
trafficking”. Thus, a poor understanding of human trafficking, coupled with absence
of constant training of law enforcement officials, continuously impedes South
Africa’s efforts to counter the scourge (Roper et al, 2020). In Zimbabwe, there is also
limited awareness of anti-human trafficking laws by both law enforcement agencies
and the public (Parliament of Zimbabwe, 2018).
Another identification hurdle has been brought about by the legal gap which has
been created by the absence of a standard comprehensive definition of the term
human trafficking. As a starting point, “a common definition of human trafficking is
critical” to consistent law enforcement of anti-trafficking laws and promoting
transnational cooperation (Yen Ne, 2018:7). The legal definition of human trafficking
has proven to be imprecise, leading to much confusion amongst criminal justice
players and policy makers. One critical loophole in the Palermo Protocol’s definition,
which is the starting point for the definition of human trafficking, is the lack of a
precise definition of the term “exploitation”. Included in the definition was a non-
exhaustive list of practices, which include slavery, forced labour, and organ removal
(Bird & Reitano, 2019). As a result, an ever-expanding list of practices is now deemed
as exploitation, leading to a dilemma on how to precisely deal with the scourge.
Hussein (2015) also notes that human trafficking carries different interpretations,
thus causing confusion among law enforcement officials on what to consider as
human trafficking. The US human trafficking Report for 2020 notes that Zimbabwe’s
Trafficking in Persons Act [Chapter 9:25] of 2014 (TIP Act) and South Africa’s
Prevention and Combating of Trafficking in Persons Act (7 of 2013) (PACOTIP Act)
fail to adequately define the term exploitation. Thus, there is absence of clarity on
what human trafficking is and human trafficking cases are “usually subsumed under
a range of other crimes that include rape, kidnapping, abduction and labour
disputes” (Dempsey, 2017:62; Van der Watt, 2020:61; Roper et al, 2020:4). Van der
Watt (2018) notes that labour trafficking remains grossly underrepresented in South
Africa, yet it is a far greater problem, and this can be attributed to absence of a
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precise definition. This lack of clarity on the definition has also resulted in countless
cases not being identified or documented, with some of the cases being subsumed
under cases which attract lesser penalties than human trafficking. For Zimbabwe, the
TIP Act’s definition of human trafficking as a movement-based crime focuses on the
transportation of victims (US Department of State, 2020), yet victims can travel on
their own, only to be exploited upon reaching their destinations. Consequently,
several cases are not identified for failure to meet the “movement-based criteria”.
The problem regarding limited appreciation of the human trafficking scourge,
leading to the identification hurdle, is not only confined to law enforcement officials
but also to the victims themselves. To this end, many trafficking victims are not
familiar with the term “human trafficking”, resulting in their failure to self-identify
as victims, thus “further reducing their likelihood of their reporting to the police”
(Farell & Reichert, 2017:41). Research on human trafficking victims has also shown
that their predisposition to reporting to the police is diminished by a plethora of
challenges such as: debt obligations, threats from the traffickers; “lack of opportunity
to tell others; confusion about their location due to constant movement by the
traffickers, deportation fears and language barriers” (Farrel & Reichert, 2017:41;
Lange, 2011:5). As such, under-identification limits the exposure of police officers to
the requisite experience needed for investigating human trafficking cases, as the
more they get exposed to more human trafficking cases, the more they gain
investigative experience.
Challenges due to complexities in the investigation of human trafficking cases
Once a human trafficking offence is identified, it enters the investigative phase,
which, however, may come with host of challenges. First, the lengthy and often
complex nature of human trafficking investigations poses as a barrier to prosecution
of human trafficking offenses (Australian Government, 2009; Davy, 2016). Given the
transnational nature of human trafficking, the investigations of human trafficking
can be protracted, complex and resource intensive (Davy, 2016). Among other
challenges of investigating human trafficking cases which require cross-border
investigations are the differences in language, legal frameworks, national institutions
for fighting the scourge and political systems (Australian Government, 2014). In one
of the leading human trafficking cases in Zimbabwe, which involved trafficking of
over 200 women for labour and sex enslavement to Kuwait, the Parliament of
Zimbabwe (2018) notes the challenges that were faced during the investigations. Part
of the investigations, in which some of the members of Parliament were involved,
entailed travelling to Kuwait for evidence gathering-a scenario which was costly,
especially given Zimbabwe’s socio-economic challenges. Moreover, investigations
have to be conducted to gather the necessary evidence during the three phases of
human trafficking, namely: recruitment, transportation and exploitation. The fact
that exploitation often happens in another country compounds the investigative
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hurdles. This possibly explains why Zimbabwe has been characterised by a huge
backlog of human trafficking cases, as noted in the US 2020 human trafficking
Report, wherein cases as far back as 2016 were still under investigation in 2020 (US
Department of State, 2020).
The use of technology during all the stages of human trafficking has also added to
the complications when investigating and prosecuting human trafficking cases.
Recruitment of victims is taking place through fake social media sites, thus
increasing anonymity by the traffickers (Inter-agency Coordination Group against
Trafficking in Person (ICAT), 2019). Online interaction also “facilitates targeting of
potential victims, access to personal data, arrangement of logistics and
transportation” (EUROPOL, 2018:2). Additionally, crypto currency “allows
traffickers to hide financial transactions and to move financial proceeds
anonymously” (ICAT, 2019:1), thus making it difficult for the law enforcement
agents to trace and seize proceeds of human trafficking. Despite this rise in the
technology-enhanced human trafficking, limited capacity and expertise on the part
of law enforcement officials, prosecutors and the judiciary becomes a huge
impediment when investigating and prosecuting human trafficking cases.
Complexities posed by illegal migration
Empirical literature has shown that illegal migrants have a greater vulnerability to
human trafficking (Davy, 2016; Hussein, 2015; International Organisation for
Migration (IOM), 2017) and under such circumstances, vulnerability is as a result of
illegality. Notwithstanding their illegal immigrant status, once identified, victims of
trafficking also have to be protected by the authorities in the receiving nation. For
example, many countries provide temporary residence, safe accommodation,
medical and psychological support to registered victims, notwithstanding their
illegal status (IOM, 2017). This leads to a perplexing paradox for officials in the host
nation, as they have, on one hand, “the onus to guard their borders against illegal
immigrants (who happen to be the trafficked individuals) and, on the other hand,
they have a United Nations obligation to protect these very trafficked victims”
(Hussein, 2015:133). On the later (protecting trafficking victims) Australia has taken
a bold step by promulgating legislation that provides for witness protection visas for
witnesses who significantly contribute to the investigation and prosecution of
alleged trafficking cases (Davy, 2016). However, in most nations, more often than
not, rather than prosecuting the perpetrators, the illegal immigrants are charged
with illegal migration and deported. South Africa has been host to thousands of
Zimbabwean illegal immigrants, who are exploited in the farming industry, mining
industry and for domestic servitude (Frankel, 2016; Roper et al, 2020; SADC
Secretariat, 2016). Notwithstanding the exploitation that the illegal immigrants are
subjected to, the main response by the authorities on these illegal immigrants is
deportation, as opposed to instituting criminal proceedings against the traffickers.
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This possibly explains why Van der Watt (2018) notes that labour trafficking is
grossly underreported in South Africa, as several cases that would have amounted
to human trafficking are treated as illegal migration.
Challenges with victim and witness cooperation
For any successful investigation and prosecution, there is need for cooperation from
the victims of crime, as well as other witnesses. However, more often than not, such
cooperation is absent when investigating human trafficking cases (Davy, 2016; Farrel
et al, 2014; Farrel & Pfeffer, 2014; Farrel & Reichert, 2017). In addition to the victims’
testimony of their human trafficking ordeals, there is also need for corroborative
evidence from other witnesses so as to build a strong prosecution case. It follows
that any human trafficking case will fall apart when the victim and witnesses elect
not to cooperate during an investigation. Several reasons have been proffered for the
absence of this victim cooperation. It has been argued that victims may tolerate
abuse and exploitation, for example longer working hours and low pay, “for fear of
being deported by the authorities” (Hussein, 2015:133). Victims may decide against
cooperating with law enforcement agents and other authorities responsible for
handling human trafficking cases, especially in circumstances where “their only
means of survival had been through their trafficker, and where they cannot foresee
an alternative means of survival once the case is over” (Farrel et al, 2012:11). Thus,
the fact that victims become loyal to the traffickers may have “less to do with the
victims’ feelings towards the perpetrators and more to do with a lack of viable
alternatives to their present situations” (Farrel et al, 2012). This lack of viable
alternatives possibly explains why most Zimbabweans who are exploited in South
Africa would rather opt not to report or cooperate with the police during
investigations, than face deportation to Zimbabwe- a nation that has for long been
characterised by acute socio-economic challenges. The current economic challenges
bedevilling Zimbabwe, which have been the predominant push factors for
trafficking and exploitation of victims in South Africa and other countries, have left
vulnerable Zimbabweans with no other alternatives. Similarly, vulnerable victims of
internal trafficking within South Africa and Zimbabwe, who mainly comprise of
poor young girls from marginalised rural areas (Bello & Olutola, 2020; Parliament of
Zimbabwe, 2018; US Department of State, 2020), may as well opt not to cooperate
with police investigators for lack of alternative means of survival if their status as
victims comes to light. In what points to the challenge of witness cooperation on
human trafficking cases in Zimbabwe, twenty-nine (29) cases out of a total of
seventy-four (74) cases that were officially identified between June 2016 and
December 2018 could not proceed in the courts because witnesses could not be
located.
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Another factor that results in lack of cooperation by the victims is the shame that is
associated with some of the activities that are associated with human trafficking
(Farrel et al, 2012). During trial proceedings, sex trafficking victims are asked to
relieve the experiences of their exploitation, sometimes in full view of the media.
This brings shame onto the victims, who may rather choose to suffer in silence than
to be paraded by the media platforms as people of loose morals. The requirement for
the victims to relieve their ordeals, which are often traumatic, also brings to the fore
the issue of credibility of their testimony Farrel et al, 2012; Hussein, 2015). Given that
some of the experiences may be so traumatic and shameful, the predisposition to
untruthful testimony by the victim will be high, with the defence counsel
capitalising on this to derail the case. When the witnesses’ statements and
testimonies are attacked by the defence counsel, “this heightens the witnesses’
subsequent reluctance to provide further evidence” (Davy, 2016:122). In Zimbabwe,
most of the human trafficking cases that have dragged for a long time involve the
trafficking of women for sex enslavement to countries such as Kuwait. This may also
be attributed to the shame that is associated with relieving the sex enslavement
experiences during testimonial evidence, resulting in most of the victims electing not
to cooperate with police investigators and prosecutors.
Other factors that lead to poor cooperation with investigators are the fear of the
police (Farrel et al, 2012; Parliament of Zimbabwe, 2018) and threats from the
traffickers (Parliament of Zimbabwe. The fear of the police can emanate from the
heavy-handedness of the police, especially towards illegal immigrants- a scenario
that has often characterised police-illegal immigrant relations in South Africa. In its
2018 report on human trafficking in Zimbabwe, the Parliamentary Portfolio
Committee on Human Rights noted that victims have “police phobia” (a phrase
which means fear of the police), resulting in the victims distancing themselves from
the cases (Parliament of Zimbabwe, 2018). The Committee was also briefed that
some of the trafficking victims who were repatriated from Kuwait received
threatening messages from the traffickers, with one of the messages reading in
native Shona language as follows: “zvauri kutiendesa kucourt unofunga kuti
zvinoubatsirei” (you are taking us to court, of what help do you think this will get
you). Such threats, which should not be taken lightly, should be understood in light
of Bello (2018:145)’s view that “corruption is a powerful limiting element of the
internal dynamics of the criminal justice systems”. Thus, buoyed by their ability to
corrupt the criminal justice agents, the traffickers do not hesitate to threaten
trafficking victims. Importantly, the propensity of traffickers to threaten trafficking
victims brings to the fore another key aspect- victim protection. In the proceeding
section we discuss poor victim protection as an impediment to the investigation and
prosecution of human trafficking cases.
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Poor victim and witness protection mechanisms
Closely related to poor victim and witness cooperation is poor victim and witness
protection. Given the harrowing ordeals that some of the victims go through, there is
need for victim protection services in the form of temporary shelter, food provision,
safe accommodation, medical support, psychosocial support, legal aid, assisted
voluntary return for victims of international trafficking, and reintegration support
(IOM, 2017; SADC Secretariat, 2017). Human trafficking victims are, in most cases,
“subjected to experiences that could jeopardise their physical and mental health”, as
well as putting their lives at risks (SADC Secretariat, 2017:3), thus justifying the need
for sound victim protection measures. However, there are concerns that the number
of people benefiting from these protection schemes remains too low as compared to
the estimated millions who continue to be exploited (IOM, 2017). Victim protection is
especially necessary in circumstances where victims come from the same
neighbourhood as their traffickers and will have to return to that neighbourhood as
investigations unfold (Farrel et al, 2012). Under such scenario, it will be riskier to
cooperate with the investigators.
It is also important to note that presence of these protection measures will have
multi-pronged positive implications on the investigations and prosecution. First, the
victims will have alternative means of survival as provided through various
protection measures, thus cutting off dependence on the traffickers for survival.
Cutting or reducing dependence on the traffickers for survival will enhance
cooperation and will increase the victims’ impetus to see justice for the traffickers.
Given the traumatic experiences that most of the victims go through during the
exploitation phase, they will need more time for psychological healing before they
are interviewed during investigations. Hurrying the interviews before their mental
state has stabilised may result in inconsistent testimonies that are clouded in
emotions. This was confirmed in Farrel et al (2012:9)’s study, wherein it was
established that “trauma-related symptoms made investigations more difficult and
victims often required more services and for a longer period of time than law
enforcement could provide”.
Notwithstanding the importance of witness protection measures, the low budgetary
allocations for victim protection services in South Africa in particular, and SADC
countries in general, has negatively impacted the criminal justice response to human
trafficking (Bello, 2018). More often, these victim support services in the SADC
region have been offered by the International Organisation for Migration and
Nongovernmental Organisation (SADC Secretariat, 2017), yet governments should
take a leading role in the funding of these victim protection measures. Whilst
countries such as Australia and Italy offer protection to illegal immigrants who are
victims of human trafficking through providing permanent or temporary residence
(Davy, 2016), illegal immigrants in South Africa are mainly deported, despite some
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being trafficking victims who need protection. In Zimbabwe, the acute economic
challenges have resulted in very limited budgetary allocations towards the criminal
justice response to human trafficking, especially the provision of victim protection
services, despite the government’s obligation under the Trafficking in Persons Act of
2014. The resource constraints were also echoed by the Zimbabwean Parliament’s
2018 Thematic Committee on Human Rights.
CONCLUSION
Despite extensive research on human trafficking across the globe, very few studies
have looked at the investigative and prosecutorial hurdles which impede the
successful prosecution of trafficking offenders. Thus, in this paper we shed more
light on the impediments to effective investigations and prosecution of human
trafficking offences. The starting point of the challenges is the failure to indentify
human trafficking offences by law enforcement agencies, which is largely attributed
to loopholes in the anti-human trafficking laws, and a lack of understanding of
human trafficking by both police officers and the trafficking victims. The
identification hurdle has led to very few cases being brought to the courts for
prosecution, despite the fact that millions of victims are trafficked annually. The
complexities of human trafficking investigations, coupled with the need to conduct
trans-border investigations and the use of technology to perpetrate the crime, have
also negatively affected the criminal justice response to human trafficking due to
absence of necessary resources and investigative skills on the part of police
investigators and prosecutors. It has also been a challenge to investigate cases
involving victims who are illegal migrants, with the police facing a dilemma of
having to protect borders against influx of illegal immigrants, as well as to protect
the same illegal immigrants as victims of human trafficking. Moreover, some
trafficking victims have refused to cooperate with investigators and prosecutors.
This is largely attributed to lack of alternative means of survival, leaving the victims
to accept exploitation at the hands of the traffickers rather than cooperate with the
police to expose the traffickers and face deportation. Absence of victims and witness
protection measures has also negatively impacted the criminal justice response to
human trafficking and this is the main challenge bedevilling Zimbabwe due to acute
economic challenges.
The challenges that have been highlighted in this paper call for action on the part of
the government and relevant stakeholders in fighting human trafficking. The
definitional challenge needs to be addressed through statutory amendments which
clearly articulate the crime of human trafficking. Awareness campaigns and
workshops targeting both criminal justice players such the police, prosecutors and
the trial officers are critical to address the knowledge gap regarding the human
trafficking phenomenon. The central government should also play a key role
through adequate budgetary allocations for police operations and for witness
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protection services. Finally, there is need for investigators and the prosecutors to
work collaboratively, as well as to initiate proactive anti-human trafficking
investigative strategies. This should however be underpinned by policies that
enhance identification and protection of victims.
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Investigative and Prosecutorial Hurdles in Combating Human Trafficking

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Investigative and Prosecutorial Hurdles in Combating Human Trafficking

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ADRRI JOURNAL OF ARTS AND SOCIAL SCIENCES

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Walter Sisulu University

Available Online: 30th June, 2021

Keywords: human trafficking, investigations, prosecution, victim protection

Received: (March 22, 2021)

Accepted: (June 30, 2021)

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