Kenya continues to have one of the highest rates of human trafficking in Africa, with trafficking for sexual exploitation being particularly prevalent. Despite the enactment of the Counter-Trafficking in Persons Act, the prosecution and conviction rates for human trafficking cases remain low.
To address these challenges, the International Association of Women Judges in Kenya partnered with Equality Now, a non-profit organization dedicated to using the law to address injustices globally. Together, they launched the “Kenya Judicial Bench Book on Trafficking in Persons for Sexual Exploitation.”
On World Day Against Trafficking in Persons, July 30, 2024, The Honorable Chief Justice Martha Koome acknowledged the importance of this judicial bench book, stating, “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 supporting access to justice for victims and survivors.”
The Kenya Judicial Bench Book on trafficking in persons for sexual exploitation, launched by the Association of Women Judges in partnership with Equality Now, is the first bench book on sex exploitation in Kenya and the second one on human trafficking in the country. It complements existing legal resources developed by the judiciary in Kenya, including the Bench Book on Labour Trafficking (2021) and the Bench Book on Criminal Procedure (2018).
Effective Adjudication of Sex Trafficking
The bench book is designed to sensitize judicial officers, including judges, magistrates, and other court users such as prosecutors, advocates, and probation officers, on the dynamics of trafficking for sexual exploitation. This guide helps them identify potential victims, be alert and responsive to their needs for support and protection, and adopt strategies for dealing with trauma. It also 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 features such as debunking common misconceptions related to sex trafficking that can impact the ability of the courts to prosecute and adjudicate effectively. It calls for all actors to adopt a human rights and trauma-informed approach when handling cases of sex trafficking. The bench book cites 87 cases and judgments on sex trafficking from various countries, including Kenya, Uganda, South Africa, Malawi, Namibia, Australia, Canada, Seychelles, Netherlands, Philippines, and Romania.
Kenya’s Commitment to Combatting Trafficking
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 of 2010, among other legislation. This provides a national framework for Kenya to effectively prevent and prohibit trafficking in persons, including for purposes of sexual exploitation.
Progress in Policy and Enforcement
The bench book is a welcome addition 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. Previously, the trafficking prosecutions unit was housed in the Gender-Based Violence Unit. The Counter-Trafficking in Persons Act of 2010 criminalizes sex trafficking and labor trafficking, prescribing penalties of 30 years to life imprisonment, a fine of not less than 30 million Kenyan shillings ($243,210), or both.
Systemic Challenges
According to Marion Ogeto, Equality Now’s program officer, “We welcome the steps taken by the government, but the prosecution of human trafficking, especially trafficking for sexual exploitation, remains dismal despite Kenya’s robust legislative framework.”
In 2023, according to the US State Department Trafficking in 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, of which 11 were sex traffickers, three for labor trafficking, and 34 for unspecified forms of trafficking under various laws.
“The minimal numbers demonstrate key gaps in the investigation and prosecution of trafficking in persons cases. There is a need for enhanced and strategic anti-trafficking law enforcement, especially by deploying a specialized counter-trafficking police unit and strengthening the Counter-Trafficking in Persons unit under the ODPP to fully equip them 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 would make it easier to track and interpret statistics and help address underreporting, which has been a huge challenge for the sector,” said Ms. Ogeto.
The Gendered Nature of Sex Trafficking
The bench book highlights that women and children remain particularly vulnerable to trafficking for sexual exploitation. In 2022, the National 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.
This year’s theme for World Day Against Trafficking in Persons, “Leave No Child Behind in the Fight Against Human Trafficking,” emphasizes 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. This manifests through gendered poverty, lack of viable employment opportunities, lack of control over financial resources, limited access to education, and the low social status of women and girls.
Additionally, with the prevalence of technology, sex trafficking continues to be a major concern for Kenya and 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 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 is a welcome addition to the growing judicial ecosystem on trafficking cases. This initiative, along with other government efforts, aims to enhance the country’s capacity to combat human trafficking and support victims and survivors.
