ZORORAI NKOMO
Trafficking in persons militates against the tenor, dictates, values, spirit, purpose and objects of universal and fundamental rights which all natural persons inherit by virtue of being human beings.
These human rights are both protected by the Constitution and the International Bill of Human Rights.
At law, human rights are universal moral rights owing to all natural persons simply for being human beings, they are inalienable and may not be deprived of without a grave affront to justice.
Human trafficking is not only morally reprehensible and illegal but it impairs human dignity of vulnerable members of our respective communities especially women and children. This heinous act violates people’s constitutionally entrenched right to human dignity.
To put this discussion in context it is always important to define trafficking in persons or human trafficking. It is an act of illegal trade in and exploitation of persons.
Victims of trafficking need not be physically transported from their places or location for human trafficking to fall within this definition. It can happen even where there is no shifting from one destination to the other.
Article 1 of the Universal Declaration of Human Rights (UDHR) provides that all human beings are born free and equal in dignity and rights.
They are endowed with reason and conscience and should act towards one another in a spirit of brotherhood. Trafficking in persons impairs the inviolable right to human dignity which accrues to all persons.
The Zimbabwean constitution protects right to life, right to privacy, right to liberty, right to human dignity, right to freedom and security of persons, right to freedom of movement, right to freedom of religion, opinion and belief, right to labour relations just to mention but a few.
These are major constitutionally entrenched rights which trafficking in persons grossly impair.
Section 54 of the Constitution of Zimbabwe clearly provides that no person may be subjected to slavery or servitude. However, I do have a problem with how this Section of the Constitution is legally framed.
I am not comfortable with the use of the word ‘may’.
Legally speaking the word ‘may’ is directory in nature, meaning that failure by any statutory body or forum or tribunal to comply with this provision cannot warrant serious legal implications such as declaring that conduct null and void.
The proper word to use should be either ‘shall’ or ‘must’.
These two words carry what we call at law a peremptory legal provision meaning that failure to comply with the provision will render any act of parliament, conduct of the statutory body or tribunal or forum null and void.
Section 54 of the Zimbabwean constitution should read “No person shall be subjected to slavery or servitude”.
However, this is not the crux of the discussion today, I will delve into these jurisprudential guidelines in the articles to follow.
Section 51 of the Constitution of Zimbabwe states that every person has inherent dignity in their private and public life, and the right to have that dignity respected and protected. There is no dignity for a person under slavery.
Our mining and farming communities should be closely monitored. They are a hub of slavery, inhuman and degrading treatment of vulnerable groups especially women and young children. Some duly registered companies are impairing the dignity of members of our communities. They are inhumanly treating their workforce. Some have gone for some months without receiving salaries.
To make matters worse no explanation is being given. They work under very harsh conditions.
The law is there but it’s failing to adequately protect them. Any attempt by them to demand what is due to them results in threats or dismissal. They are people living without dignity.
Section 48 of the Constitution provides that everyone has the right to life. Right to life and human dignity are closely linked and they are a source of all other personal rights.
In human trafficking there is use of violence and abuse.
This usually leads to exhaustion which subsequently leads to victims losing their lives. In sexual trafficking victims are subjected to rape and forced intercourse. This makes them prone to high risk of HIV and other sexually transmitted infections.
This subsequently threatens victims’ right to life as enshrined and entrenched in the constitution.
Section 52 of the Constitution guarantees the right to personal security.
It further went on to provide that every person has the right to bodily and psychological integrity, which includes the right to freedom from all forms of violence, not to be subjected to medical or scientific experiments, or to the extraction or use of their bodily tissue.
Trafficked persons are subjected to inhuman and degrading treatment such as physical and mental torture. They are deprived of their liberty. They are people living without their personal security.
Section 57 of the Constitution provides that everyone has the right to privacy which includes the right not to have their home, premises or property entered without their permission, privacy of communication and privacy not to disclose their health conditions.
Trafficked victims cannot assert their constitutional right to privacy. Living a life without privacy is living an undignified life.
The Constitution in Section 61 states that everyone has the right to freedom of expression.
Freedom of expression is well-known to be an essential component of a live and functioning democracy. Right to dignity, privacy, freedom of religion and opinion, freedom of association and the right to vote are closely related.
A trafficked person automatically is stripped of these fundamental rights enshrined in the constitution.
Trafficked persons do not enjoy their right to freedom of expression.
Section 66 of the constitution provides for freedom of movement and residence.
Trafficked persons’ movement is determined by traffickers. In most cases when they reach the trafficker’s destination, their travelling documents such as passports are confiscated. This automatically restricts their movements, personal rights and liberties.
A person without freedom of movement has no human dignity. Depriving a person’s freedom is denying him his dignity.
In section 64 of the constitution every person has the right to choose and carry on any profession, trade or occupation, but the practice of a profession, trade or occupation may be regulated by law.
Personal agency of a trafficked person is limited if not totally lost. Freedom of choice falls away in all forms of human trafficking especially in labour and sexual exploitation.
Trafficked persons have no right to determine when and how to work and number of working hours.
Every work they take is forced labour.
They do not have the right to freedom of trade. They are subjected to unlawful and unethical labour relations punctuated with discrimination, unfair suspensions, racism, sexism just to mention a few.
Zororai Nkomo is a Zimbabwean journalist, lawyer and social justice activist. He writes in his own personal capacity. He can be contacted on zoronkomo@gmail.com
