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AN ANALYSIS OF THE CONCEPT OF VICTIMS OF CRIMES IN NIGERIA

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 Format: MS WORD ::   Chapters: 1-5 ::   Pages: 56 ::   Attributes: Questionnaire, Data Analysis,abstract, table of content, references ::   120 people found this useful

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CHAPTER TWO

CLARIFICATION OF KEY CONCEPTS

2.1      Definition of the Term “Trafficking” as a Crime and a Human Rights

Violation

In the course of this study, certain concepts such as human rights, trafficking, abduction and such other relevant terms were used. One cannot appreciate and understand this work unless those terms are clarified. Therefore, this chapter clarifies the key concepts used.

Article 3 (a)[1] contains three separate elements in its final definition of “Trafficking in

Persons‟ namely:-

  1. An action, consisting of recruitment, transportation, transfer, harboring or receipt of persons;
  2. By means of:  Threat or use of force or other forms of coercion, abduction, fraud, deception, abuse of power or position of vulnerability, giving or receiving payments or benefits to achieve consent of a person having control over another;
  3. For the purpose of  Exploitation (including, 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). All three elements must be present for the protocol to become operational within a given fact- situation. The only exception is for children for whom the requirements relating to means are waived.

In its final version, the protocol does not define the terms slavery, forced labour, practices similar to slavery, or servitude.  In relation to the first three of these, it may be assumed that accepted definitions contained in other international legal instruments will be applicable.

The concept of servitude has not been so defined and the final text of the protocol inexplicably omits a definition negotiated by the Ad-Hoc Committee and included in the draft right up to October 2000.  A proposal to include organ removal as end purposes of trafficking was made very late in the negotiations; and survived despite rather curious objections that the protocol was dealing with trafficking in persons, not organs.

The UN Anti-Trafficking Protocol (otherwise known as the Palermo Protocol), with its definition of trafficking, considered above, provides useful guidance for law reform and the criminalization of this practice as part of state Parties‟ obligations there under.

 

2.2       Definition of g Human Trafficking

Admittedly a lot of controversies and debates have surrounded the definition of trafficking. These were evident at the negotiations of the UN Protocol to Prevent,

Suppress and Punish Trafficking in Persons, Especially Women and Children (Palermo Protocol), which is accompanied by several interpretative notes to clarify the meaning.

Article 3(a) of the Palermo Protocol defines trafficking as: 

…the recruitment, transportation, transfer, harbouring or receipt of persons, by means of 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 labour or services, slavery or practices similar to slavery, servitude or the removal of organs.

 

Paragraph 3(b) goes on to state, “the consent of a victim of trafficking in persons to the intended exploitation set forth in sub paragraph (a) of this article shall be irrelevant where any of the means set forth in sub-paragraph (a) have been used.”

Paragraphs 3(c) and 3(d) qualify the definition in the case of minors: 

The recruitment, transportation, transfer, harbouring or receipt of a child for the purpose of exploitation shall be considered “trafficking in persons” even if this does not involve any of the means set forth in subparagraph (a) of this article;” “Child” shall mean any person under eighteen years of age.

 

The most admissible definition of human trafficking is the one offered by the United Nations. According to UNESCO:  

human trafficking is the recruitment, transportation, transfer, harbouring 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 persons, for the purpose of exploitation[2]

Exploitation here, is meant to capture prostitution, forced labour, slavery related activities or extraction of human organs (parts) from persons, including baby harvest (taking newly born babies from their mothers with their consent or through manipulative means).The organization further explains that if a child is recruited, transferred harboured or received for the purpose of exploitation, such child should be seen as being trafficked. 

Attoh[3] defines human trafficking though, with emphasis on the female sex as “the illicit movement of young women across international borders for certain exploitative purposes.” She affirms that such unlawful movements usually take a bottom-top dimension. That is, it involves the exploitation of victims from the developing and underdeveloped countries to the developed nations. Which ever angle one looks at trafficking in persons, it is quite glaring that it has to do with taking people or someone away from his or her environment to a different location to do some work and other very odd things which ordinarily he or she would not accept doing. Whether the consent of such a person was sought and approval given before the said movement is immaterial. What most likely qualifies a victim as a trafficked person is that the fellow would be in another environment where he or she would be subjected to doing things against his or her volition. In other words, the fundamental rights of freedom of movement, association and even expression may have been denied the victim/s in question.

It is pertinent to mention that the definition must be read with the interpretative notes that seek to differentiate human trafficking from “prostitution”, “illegal migration” or “human smuggling”. Moreover the definition in the Protocol specifies the elements necessary for an act to constitute trafficking in persons, the key elements being:

  1. Movement (of a person): recruitment, transportation, transfer, harbouring, or receipt.
  2. Means: threat, force, abduction, fraud, coercion, deception, abuse of power or position or vulnerability, sale etc iii. Purpose/Motive: or sexual exploitation, forced labour or services, slavery like or practices similar to slavery, servitude or removal of organs.

The absence of any or some of these elements appears to determine whether or not an act constitutes trafficking. For example mere facilitation of another‟s movement or migration from one place to another, even for monetary consideration and without lawful documents and no more, will constitute illegal migration (on the part of the victim) and human smuggling (on the part of the smuggler) but not a human trafficking transaction.

In this case, there is no motive to subject such a person to forced or exploitative labour. In the same vein, an adult who seeks the assistance of another for the purpose of engaging in prostitution, may in the absence of other means such as “threat”, “coercion”, “force” and the like, also be merely a person engaged in prostitution and not a trafficked victim and the person who facilitates it is merely “a pimp” or agent not a trafficker. It will be an agreed transaction that may at worst be more profitable for one party than for the other.

Furthermore, it should be noted that a proviso to the definition, is that consent of the victim is irrelevant when there is abuse of power or a situation of vulnerability. Consequently, the notion in Nigerian society that most women and girls taken for prostitution to Europe, know that they are going to engage in prostitution and have consented to the exploitation and therefore cannot be considered as trafficked is erroneous. The consent to migrate, albeit illegally, and for prostitution does not exonerate the traffickers, neither does it make the trafficked persons any less victims. The presence of the other elements of “exploitation” and other forms of human rights abuses while facilitating the transfer of persons for the purposes of prostitution or other forms of labour makes the transaction that of human trafficking. In effect consent is vitiated once the other elements of abuse and exploitation are proved as no one can consent to exploitation. In addition, in the definition the threshold in proving a transaction constituting human trafficking in relation to a child (any person under the age of 18 years) is less than that required to prove trafficking in adults, as it is unnecessary to prove inducement or deceit as long as there is recruitment, transportation and exploitation. This definition is particularly relevant in distinguishing the situation of trafficked children from that of adult victims. Unfortunately most of the trafficked victims either internally or externally are children especially at the time of trafficking. 

     

2.3       The meaning of the word “victim” and Victims of Crime 

The UN Declaration of Basic Principles of Justice for Victims of Crime and Abuse of

Power (otherwise known as Victims Declaration)25 defines as “Victims of Crime:-

Means persons who, individually or collectively, have suffered harm, including physical or mental injury, emotional suffering, economic loss or substantial impairment of their fundamental rights, through acts or omissions that are in violation of criminal laws operative within Member States, including those laws proscribing criminal abuse of power[4].

 

In Article 18 of the Victims Declaration, a definition of “Victims of abuse of power” is given:-

Persons who, individually or collectively, have suffered harm, including physical or mental injury, emotional suffering, economic loss or substantial impairment of their fundamental rights, through acts or omissions that do not yet constitute violations of national criminal laws but of internationally recognized norms relating to human rights.

 

The Declaration further states that a person may be considered a victim regardless of whether the perpetrator is identified, apprehended, prosecuted or convicted and regardless of the relationship between the perpetrator and the victim[5].The notion of victim is subsequently extended to the immediate family or dependants of the victim, as well as to persons who suffered harm intervening on the victim‟s behalf[6].The victims Declaration does not distinguish between male and female victims, nor does it address the specific vulnerabilities and needs of female victims of crime and abuse of power.

This definition covers many categories of harm sustained by people as a consequence of criminal conduct, ranging from physical and psychological injury to financial or other forms of damage to their rights, irrespective of whether the injury or damage concerned was the result of positive conduct or a failure to act. Quite importantly, according to paragraph 2 of the U.N. Declaration a person may be considered a victim “regardless of whether the perpetrator is identified, apprehended, prosecuted or convicted and regardless of the familial relationship between the perpetrator and the victim”[7]. According to the same article: The term „victim‟ also include, where appropriate, the immediate family or dependants of the direct victims and persons who have suffered harm in intervening to assist victims in distress or to prevent victimization.” 

 


[1] . UN Protocol to Prevent, Suppress and Punish Trafficking in Persons, Particularly Women and Children

[2] . UNESCO “Human trafficking, especially of women and children in West Africa (Benin, Togo, Nigeria),” Research Study Coordinated by Bisi Olateru Olabegi, Executive Director of WOCON, (Unpublished),(2006).

[3] .  Attoh, op cit.

[4] .   Paragraph 1 of the U.N. Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power

[5] .  Adopted by UN General Assembly Resolution 40/34 of 29 November, (1985).  

[6] .  Section 13 of the UN Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power.

 

[7] .  Ibid


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Format:ms word
Chapter:1-5
Pages:56
Attribute:Questionnaire, Data Analysis,abstract, table of content, references
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