In Africa, the act of human trafficking has become preposterous. Thousands of people have attempted being trafficked within and outside Africa- with most of the victims being women and children, mostly from countries like Nigeria, Senegal, Niger, Kenya, and so on. Human trafficking has become worse, due to the ailing fact that most governments have been lax about the security and lives of their own citizens.

right to life

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What is human trafficking?

Trafficking in persons is one of the greatest human rights challenges of our time and is, as the International Labour Organization (ILO) points out, the “underside of globalization.”

According to Article 3a of the Trafficking Protocol, “trafficking in persons” is defined as

The recruitment, transportation, transfer, harboring or receipt of persons, by means of the threat or use of force or other forms of coercion, of abduction, of fraud, of Deception, of the abuse of power or of a position of vulnerability or of the giving or Receiving of payments or benefits to achieve the consent of a person having 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 labor or services, slavery or practices similar to slavery, Servitude or the removal of organs… The consent of a victim of trafficking in persons to the intended exploitation set forth [above] shall be irrelevant where any of themeans set forth [above] have been used”.

Article 3 of the Protocol against the Smuggling of Migrants by Land, Sea and Air, supplementing the United Nations Convention against Transnational Organized Crime, defines “Smuggling of migrants” 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”.

Human trafficking can also be defined as the exploitation, movement, harbouring, and exercising of control over the life of an individual, with the aim of exploiting the person, mostly for sexual exploitation or forced labour. It can also be said to be a modern form of slavery.

It is reported that about 52% of those recruiting victims are men, 40% are women and 6% are both men and women[1]. Also, in 54% of cases the recruiter was a stranger to the victim, 46% of the cases the recruiter was known to the victim[2]. Human trafficking as a whole usually is dependent on certain factors, which are exploited by these traffickers to claim their victims. For example, a poor family in Nigeria usually becomes an easy target for the trafficker, who promises to find the child a good job; sweet talking the parents of the child into releasing their children into their custody.  Also, traffickers exploit desperate individuals who want to travel out of their countries for greener pastures.

 

What is Human Right?

Every being on earth is said to have human rights, notwithstanding any disabilities or physical challenge(s). Human Rights are fundamental to the existence of man. According to Salmond, a right is an interest for which is a duty, and the disregard of which is a wrong.[3]

According to Blacks Law Dictionary,[4]

The word right taken as a noun, in an abstract sense, means justice, ethical correctness or consonance with the rules of law or the principles of morals;… as a noun taken in a concrete sense, it means a power, privilege, faculty or demand inherent in one person and incitement upon another;… and the primal rights pertaining to man are enjoyed by the human beings purely as such, being grounded in personality and existing antecedently to their recognition by positive law… a right is well defined as capacity residing in of man of controlling, with the assent and assistance of the state, the action of others.

In Nigeria, fundamental human right has been previously defined. In Ransome-Kuti v Attorney-General of the Federation[5] the court defined human rights as a right which is above the ordinary laws of the land.

The state cannot waive any of these rights[6] nor can an individual choose to waive any of these rights, where it is not for his benefit alone, but in control of the stat or the courts.[7]

 

Right to Freedom of movement

Freedom of movement concerns the freedom of citizens both to move freely within their own country and to leave and return to their own country and to leave and return to their own country.it has its origins in ancient philosophy and natural law, and has been regarded as integral to personal liberty.[8]

The right to freedom of movement is guaranteed under section 41 of the 1999 constitution (as amended). It provides that:

  • Every citizen of Nigeria is entitled to move freely throughout Nigeria and to reside in any part thereof, and no citizen of Nigeria shall be expelled from Nigeria or refused entry thereto or exit therefrom.
  • Nothing in subsection (1) of this section shall invalidate any law that is reasonably justifiable in a democratic society:
  1. Imposing restrictions on the residence or movement of any person who has committed or is reasonably suspected to have committed a criminal offence in order to prevent him from leaving Nigeria; or
  2. Providing for the removal of any person from Nigeria to any country;
  3. To be tried outside Nigeria for any criminal offence; or
  4. To undergo imprisonment outside Nigeria in execution of the sentence of a court of law in respect of a criminal offence of which he has been found guilty.

Also, Article 12 of the African Charter guarantees the right to freedom of movement as follows:

  • Every individual shall have the right to freedom of movement and residence within the borders of a state provided he abides by the law.
  • Every individual shall have the right to leave any country, including his own, and to return to his country. This may only be subject to restrictions provided for by law for the protection of national security, law and order, public health or morality.
  • Every individual shall have the right, when persecuted to seek and obtain asylum in other countries in accordance with the laws of those countries and international conventions.
  • A non-national legally admitted in a territory of a state party to the present Charter may only be expelled from it by virtue of a decision taken in accordance with the law.
  • The mass expulsion of non-nationals shall be prohibited. Mass expulsion shall be that which is aimed at national, racial, ethnic, or religious groups.

Also, Article 13 of the Universal Declaration of Human Rights provides:

1) Everyone has the right to freedom of movement and residence within the borders of each state.

2) Everyone has the right to leave any country, including his own, and to return to his country.

From the statutory provision provided above, it will not be wrong to state that every individual is guaranteed the freedom of movement. It must be noted that the right to freedom of movement guarantees citizens the right to movement within, and outside their county as well. As held by the court in the Australian case of Gratwick v Johnson[9], Starke J said that the “people of Australia are thus free to pass to and from among the state without burden, hindrance or restriction”.

Under the Nigerian constitution, the right to freedom of movement can only be restricted by circumstances stipulated in the constitution. In Williams v Majekodunmi[10], the court held that the restriction of the claimant to a two-mile radius of his house under the Emergency Powers Regulations of 1962 was a violation of his right to freedom of movement.

 

 

The Crossroad

Human trafficking has become a means of curtailing the right to freedom of movement of individuals. The freedom of individuals within and outside their countries is a fundamental right which they should not be deprived of. However, that is not the case as regards to human trafficking. The trafficking in persons is one of the greatest human rights challenges of our time, and is described by the International Labour Organisation as, the “underside of globalization”[11].

Nigeria has acquired a reputation for being one of the leading African countries in human trafficking with cross-border and internal trafficking. Trafficking of persons is the third largest crime after economic fraud and the drug trade. Decades of military regimes in Nigeria have led to the institutionalized violation of human rights and severe political, social and economic crises. This negatively impacts the development of community participation, especially of women and children, despite international institutions designed to advance their causes. In addition, the oil boom in the 1970s created opportunities for migration both inside and outside of the country. This created avenues for exploitation, for international trafficking in women and children, for forced labor and for prostitution.[12]

Nigeria is a country of origin, transit and destination for human trafficking. There is also evidence of internal trafficking within Nigeria. It must however be noted that the restriction and forced movement of individuals has been held to be unconstitutional, as held in the case of Shugaba v Federal Minister of Internal Affairs[13], where the court held that the deportation of the plaintiff was an infringement of his freedom of movement guaranteed by section 38 of the Constitution as it was not established that he was not a Nigerian citizen.

Conclusion

Human trafficking does not only affect the right to freedom of movement, it also affects other fundamental rights of individuals. The right to freedom of movement is also one of the most crucial aspects of human rights, which is crucial to the well-being of individuals, which has been infringed on by human traffickers willing to garner enough man power for their own pockets.

[1]  United Nations Office on Drugs and Crime, Trafficking in Persons: Global Patterns (Vienna, 2006)

[2]  International Organization for Migration, Counter-Trafficking Database, 78 Countries, 1999-2006 (1999)

[3] Salmond, Jurisprudence, (Glanville Williams, 11th ed) p. 261

[4] 6th ed. 1323

[5] Per Eso JSC in Ransome-Kuti v A.G Federation (1985) 2 NWLR, 211  ‘Fundamental right is a right which stands above the ordinary laws of the land and which in fact is antecedent to the political society itself. It is a primary condition to a civilized existence and what has been done by our constitutions since independence… is to have these rights enshrined in the Constitution so that the rights could be “immutable to the extent of the no immutability” of the Constitution itself.”

[6] Attorney General of the Federation v Attorney General of Bendel State (1981) 10 S.C 1

[7] Ariori v Elemo (1983) 1 SC 13

[8] Jane McAdam (2011) ‘An Intellectual History of Freedom of Movement in International Law: The Right to Leave as a Personal Liberty’12 Melbourne Journal of International Law 27, 6. See also Enid Campbell and Harry Whitmore (1966) Freedom in Australia Sydney University Press  ch 4; Harry Street (1972) Freedom, the Individual and the Law Penguin Books ch 11.

[9] Gratwick v Johnson (1945) 70 CLR 1, 17.

[10] (1962) 1 All NLR 413

[11] Stopping forced labour: Global report under the follow-up to the ILO Declaration on Fundamental Principles and Rights at Work, International Labour Conference, 89th Session 2001, Report 1B, p 47

[12] Human Trafficking in Nigeria: Policy Paper No 14.2 (E)

[13] (1982) 3 NCLR 915

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