To tackle sex trafficking in Kenya, Judges launch first-ever bench book
Kenya continues to have one of the highest rates of human trafficking in Africa, with trafficking for sexual exploitation being one of the most common forms. A key concern is that despite the enactment of the Counter-Trafficking in Persons Act, prosecution and conviction rates for human trafficking cases remain low.
To address this challenge in the judicial system, the International Association of Women Judges in Kenya partnered with Equality Now, a non-profit organization using the law to address gender injustices globally launched the “Kenya Judicial Bench book on trafficking in persons for sexual exploitation’.
Acknowledging the importance of this judicial bench book on World Day Against Trafficking of Persons on 30th July 2024, The Honorable Chief Justice Martha Koome said, “This Bench Book on trafficking in persons for sexual exploitation seeks to facilitate a greater understanding of this form of trafficking, further bringing attention to the elements of this crime, including the institutional barriers, to support access to justice for victims and survivors.” – (Anticipatory quote framed from acknowledgements)
The Kenya Judicial Bench book on trafficking in persons for sexual exploitation launched by the International Association of Women Judges in partnership with Equality Now, is the first bench book on sex exploitation to be launched in Kenya, but the second one on human trafficking in the country. It complements existing Bench Books and other legal resources that have been developed by and for the Judiciary in Kenya, including the Bench Book on Labour Trafficking (2022) and the Bench Book on Criminal Procedure (2018).
Effective adjudication of sex trafficking across the globe
The Kenya Judicial Bench book on trafficking in persons for sexual exploitation is designed to sensitize judicial officers including judges, magistrates, and other court users such as prosecutors, advocates, and probation officers in understanding the dynamics of trafficking for sexual trafficking. This guide should help them identify potential victims, aid them in being alert and responsive to their need for support and protection, and adopt responsive strategies for dealing with trauma. Further, it highlights the legal issues that arise in trafficking for sexual exploitation cases.
The bench book is the first on sex trafficking in Kenya and includes special features such as unpacking common misconceptions related to sex trafficking which can impact the ability of the courts to prosecute and adjudicate effectively, and a call for all actors to adopt a human rights and trauma-informed approach when handling cases of sex trafficking. It also cites 87 cases and judgments taken on sex trafficking in various countries across the globe including Kenya, Uganda, South Africa, Malawi, Namibia, Australia, Canada, Seychelles, Netherlands, Philippines, Romania, and many others.
Kenya is a signatory to the UN Protocol to Prevent, Suppress and Punish Trafficking in Persons Especially Women and Children (the Palermo Protocol), and has domesticated the treaty through the Counter Trafficking in Persons Act (2010), among other legislation, thus providing a national framework for Kenya to effectively prevent and prohibit trafficking in persons, including for purposes of sexual exploitation.
Progress in the policy environment
The bench book is a welcome initiative to the numerous policy efforts the Government of Kenya has made to combat trafficking, including increasing investigations, prosecutions, and specialized anti-trafficking police units. For example, in February 2024, the Office of the Director of Public Prosecutions established a specialized unit dedicated to countering trafficking in persons where previously, the trafficking prosecutions unit was housed in the Gender-Based Violence Unit. The Counter-Trafficking in Persons Act of 2010 of Kenya criminalizes sex trafficking and labor trafficking and prescribes penalties of 30 years to life imprisonment, a fine of not less than 30 million Kenyan shillings ($243,210), or both.
Systemic challenges in sex trafficking
According to Marion Ogeto, Equality Now’s program officer, “We welcome the steps taken by the government however prosecution of human trafficking is dismal especially trafficking for sexual exploitation despite Kenya’s robust legislative framework”
In 2023, according to the US State Department Trafficking of Persons Report- the government reported prosecuting 19 trafficking cases including three sex trafficking cases, five labor trafficking cases, and 11 cases of unspecified forms of trafficking under various laws. In 2022, the government reported prosecuting at least 48 trafficking cases- 11 of which were sex traffickers, three for labor trafficking, and 34 for unspecified forms of trafficking under various laws. “The minimal numbers demonstrate that there are key gaps in investigation as well as prosecution of Trafficking in Persons cases. There is a need for enhanced and strategic counter-trafficking law enforcement, especially by deploying a specialized counter-trafficking police unit and strengthening the Counter Trafficking of In-Persons unit under the ODPP to fully equip them to know how best to respond to trafficking cases given the complexity of the issue. Further, the government is yet to work on a centralized law enforcement data collection system on trafficking crimes. This way it is easier to track and interpret statistics. It would also help us to deal with underreporting which has been a huge challenge for the sector,” said Ms. Ogeto.
The Gendered Nature of Sex Trafficking
In most cases, the bench book highlights that women and children remain particularly vulnerable when it comes to trafficking for sexual exploitation. In 2022, the National Crime Research Center reported that sex trafficking stood at 44 percent, with women being the most affected at 41 percent, children at 33 percent, and men at 21 percent. The theme of this year’s World Day Against Trafficking of Persons (Leave No Child Behind in the Fight Against Human Trafficking) augments our focus on the vulnerability of women and children. The bench book cites that the vulnerability of women and girls to trafficking for sexual exploitation is exacerbated by structural and systematic sex and gender-based discrimination and inequality, which manifests through gendered poverty, lack of viable employment opportunities, lack of control over financial resources, limited access to education, and low social status of women and girls.
In addition, with the prevalence of technology, sex trafficking continues to be a major concern for Kenya, and invariably in the legal system. The “Out of the Shadows: The Internet and Child Sexual Exploitation” global report cited that with Child Sexual Exploitation and abuse (CSEA) increasingly being perpetrated online and through the use of digital technologies, Kenya, a technology hub in East Africa, has not been immune to the prevalence of child sexual trafficking. The Anti-Human Trafficking and Child Protection Unit (AHTCPU) of the Directorate of Criminal Investigations alone handled 3,160 online child sexual exploitation cases in 2018 and 4,133 in 2019.
The Kenya Judicial Bench book on trafficking in persons for sexual exploitation comes as a welcome addition to the growing judicial ecosystem on trafficking of cases, where in 2022, the government launched the Kenya Judicial Bench Book on Labour Trafficking. In 2018, the government also launched a Bench Book on Criminal Procedure.
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