CHAPTER 7:06
TRAFFICKING IN PERSONS

ARRANGEMENT OF SECTIONS

   SECTION

PART I
PRELIMINARY

   1.   Short title

   2.   Interpretation

   3.   Scope of application

PART II
ADMINISTRATION

   4.   National Coordination Committee against Trafficking in Persons

   5.   Composition of the Committee

   6.   Chairperson of the Committee

   7.   Tenure of office

   8.   Functions and powers of the Committee

   9.   Duties of the Committee

   10.   Meetings of the Committee

   11.   Allowances on Committee

   12.   Procedure

   13.   Minutes of the Committee

PART III
OFFENCES

   14.   Trafficking in persons

   15.   Trafficking in children

   16.   Aggravated form of trafficking

   17.   Trafficking in persons an offence involving dishonesty and moral turpitude

   18.   Prohibition against working with children

   19.   Court to order closure of an establishment

   20.   Benefiting from exploitation of trafficked persons

   21.   Attempts, aiding or abetting trafficking in persons

   22.   Duty to report

   23.   Liability of legal person

   24.   Carrier liability

   25.   Other acts that promote or facilitate trafficking

PART IV
INVESTIGATION AND CRIMINAL PROCEEDINGS

   26.   Designation of enforcement officers

   27.   Powers of enforcement officer

   28.   Duties of enforcement officer

   29.   Identification of enforcement officers

   30.   Arrest by person who is not a police officer

   31.   Records

   32.   Search and seizure

   33.   Search and seizure without warrant

   34.   List of seized items

   35.   Access to electronic data

   36.   Burden of proof

   37.   Confiscation

   38.   Disposal of confiscated property

   39.   Acquittal and assets

   40.   Right to institute civil action

   41.   Obstruction

   42.   Immunity of trafficked person

PART V
CARE AND PROTECTION

   43.   Appointment of protection officers

   44.   Duties of protection officer

   45.   Shelters

PART VI
WITNESS PROTECTION

   46.   Restriction on disclosure

   47.   Witness protection

   48.   Application for protection

   49.   Confidentiality

PART VII
FINANCIAL PROVISIONS

   50.   Funding of the Committee

   51.   Anti-Trafficking Fund

   52.   Purpose of the Fund

   53.   Management of the Fund

   54.   Accounts and Audit

   55.   Financial year

   56.   Annual report

PART VIII
MISCELLANEOUS

   57.   General Penalty

   58.   Amendment of Schedule

   59.   Regulations

3 of 2015
G.N. 39/2015

An Act to make provision for the prevention and elimination of trafficking in persons; to provide for the establishment of the National Coordination Committee against Trafficking in Persons for the coordination and management of matters related to trafficking in persons; and to provide for matters incidental thereto and connected therewith

[1ST NOVEMBER, 2015]

PART I
PRELIMINARY

1.   Short title

   This Act may be cited as the Trafficking in Persons Act.

2.   Interpretation

   In this Act, unless the context otherwise requires—

   "AIDS" means Acquired Immune Deficiency Syndrome;

   "child" means a person below the age of eighteen years;

   "Committee" means the National Coordination Committee against Trafficking in Persons established under section 4;

   "exploitation" includes—

   (a)   forced labour or any extraction of work or services from a person;

   (b)   the forced participation of a person in all forms of commercial sexual activity such as prostitution, sexually-explicit performance, or in the production of pornography;

   (c)   the removal of body parts or the extraction of organs or tissue; or

   (d)   any other practice in terms of which it can not be said that the person participated willingly;

   "Fund" means the Anti-Trafficking Fund established under section 51;

   "HIV" means the Human Immuno-deficiency Virus which causes AIDS;

   "organized criminal group" means a group of two or more persons, existing for a period of time and acting in concert with the aim of committing an offence under this Act;

   "relative" means—

   (a)   a parent, step parent, foster parent, grand parent, sibling, guardian or any person who has legal custody over the child or to whom the child is a dependent; or

   (b)   at the time the offence under the Act is committed, a person who is living with the child as a member of that person's family or was under the person's family care and protection;

   "substantial health risk" means—

   (a)   infection with—

      (i)   HIV;

      (ii)   a sexually transmitted disease; or

      (iii)   any other highly contagious or infectious disease;

   (b)   any medical condition, occasioned as a result of the exploitation;

   "trafficked person" means a person or child who has suffered harm, including mental and physical injury, emotional suffering, economic loss or substantial impairment of the persons fundamental human rights through acts that contravene sections 14 and 15;

   "trafficking in persons" means recruiting, transporting, transferring, harbouring, receiving or obtaining a person, within or beyond the territory of Malawi, through—

   (a)   threats or use of force or coercion;

   (b)   abduction;

   (c)   fraud or deception;

   (d)   abuse or threats of abuse of power or position;

   (e)   abuse or threats of abuse of position of vulnerability;

   (f)   abuse or threats of abuse of the law or legal process; or

   (g)   giving or receiving of payments to obtain consent of a person having control of the trafficked person, for the purpose of exploitation of that person.

3.   Scope of application

   (1) This Act shall apply to a natural or legal person where the offence—

   (a)   is committed wholly or partly within Malawi;

   (b)   is committed outside Malawi and the trafficked person is a citizen of Malawi;

   (c)   is committed outside Malawi by a citizen of Malawi or a person who is resident in Malawi;

   (d)   committed outside Malawi with a view to the commission of an offence under this Act, within Malawi; or

   (e)   involves an organized criminal group.

   (2) Where a person has already been convicted or acquitted of an offence under this Act in a foreign jurisdiction, he shall not be prosecuted again for the same offence in Malawi, unless the proceedings of the court in the foreign jurisdiction—

   (a)   were for the purpose of shielding the person concerned from criminal proceedings outside in a foreign jurisdiction; or

   (b)   were not conducted independently or impartially in accordance with norms of due process recognized by international law and were conducted in a manner which, in the circumstances, was inconsistent with an intent to bring the person concerned to justice.

PART II
ADMINISTRATION

4.   National Coordination Committee against Trafficking in Persons

   (1) There shall be a committee to be known as the National Coordination Committee against Trafficking in Persons for the proper administration of this Act.

   (2) The Committee shall have its secretariat within the Ministry responsible for home affairs or any other ministry, as the President may direct.

5.   Composition of the Committee

   (1) The Committee shall consist of—

   (a)   the Secretary responsible for Home Affairs;

   (b)   the Secretary responsible for Justice;

   (c)   the Secretary responsible for Gender;

   (d)   the Inspector General of Police;

   (e)   the Chief Immigration Officer;

   (f)   the Executive Director of the Human Rights Commission;

   (g)   a representative of the Faith-Based Organizations, appointed by the Minister; and

   (h)   a representative of non-governmental organizations dealing with issues of trafficking in persons, appointed by the Minister.

   (2) The Minister shall publish in the Gazette names of all members of the Committee as first constituted, and every subsequent change in the membership.

   (3) A member shall not be in the employment of the Committee nor serve on a full time basis.

   (4) A person shall not be qualified for appointment by the Minister as a member of the Committee if he—

   (a)   holds a political office; or

   (b)   with the exception of the members listed in section 5 (1) (a) to (e), is an employee in the public service.

6.   Chairperson of the Committee

   The Secretary responsible for Home Affairs shall be the Chairperson of the Committee.

7.   Tenure of office

   (1) Save for the members appointed under section 5 (1) (a) to (e), a member of the Committee shall, unless he resigns, hold office for a period of three years from the date of appointment and may be eligible for re-appointment once.

   (2) The office of a member appointed under section 5 (1) (g) and (h) of the Committee shall become vacant in the event where the member—

   (a)   dies;

   (b)   is adjudged bankrupt;

   (c)   is sentenced, for an offence against any written law, to any term of imprisonment without the option of a fine;

   (d)   fails, without the permission of the Chairperson, to attend three successive meetings of the Committee of which he has had notice;

   (e)   becomes incapacitated by reason of physical or mental disability; or

   (f)   resigns in accordance with subsection (4).

   (3) A member other than any of those appointed under section 5 (1) (a) to (e), may at any time resign his office by giving one month written notice to the Chairperson, who shall forward that resignation to the Minister.

   (4) A vacancy in the membership of the Committee shall be filled by the appointment of a person in accordance with section 5, and the person appointed to fill the vacancy shall serve for the remainder of the relevant term of office, provided that a person shall not be appointed to fill a vacancy if that remaining period of a term is less than six months.

8.   Functions and powers of the Committee

   (1) The functions of the Committee shall be to—

   (a)   coordinate and oversee investigations and receive reports from enforcement officers on the investigation and prosecution of offences under this Act;

   (b)   ensure that trafficked persons are treated with dignity and respect of their rights during interviews and throughout the investigation and prosecution process;

   (c)   ensure that all screening interviews of trafficked persons are conducted in accordance with the Guiding Principles for Conducting Screening Interviews for the Identification of Trafficked Persons contained in the First Schedule and Second Schedule hereto;

   (d)   supervise protection officers in the provision of care, assistance, support and protection of trafficked persons;

   (e)   initiate education and awareness programmes on causes and consequences of trafficking in persons;

   (f)   formulate and oversee implementation activities aimed at the suppression of trafficking in persons;

   (g)   formulate policy, programmes and strategies to prevent and suppress trafficking in persons;

   (h)   make recommendations to the Minister on all aspects of prevention and suppression of trafficking in persons;

   (i)   coordinate and oversee training of relevant law enforcement and judicial officers;

   (j)   liaise with Government agencies and non-governmental organizations on rehabilitation and reintegration of trafficked persons;

   (k)   manage the Anti-Trafficking Fund and prepare guidelines for disbursements from the Fund;

   (l)   coordinate research on international, regional and national developments and standards on trafficking in persons;

   (m)   coordinate and oversee data collection; and

   (n)   generally coordinate and monitor the implementation of the Act.

   (2) The Committee shall have powers as may be necessary for, or in connection with, or incidental to the performance of its functions under this Act on matters of or related to trafficking in persons.

9.   Duties of the Committee

   The Committee shall ensure that a trafficked person—

   (a)   is not subjected to any discriminatory practice;

   (b)   has access to adequate health care during their residence at a shelter or any other place;

   (c)   where applicable, has access to his diplomatic mission within Malawi on any matter;

   (d)   has the right, facilitated by the State, to return to his country of origin;

   (e)   is granted a temporary residence permit pending completion of any matter before a court or tribunal in Malawi;

   (f)   has his or her full rights respected and observed during investigation, gathering and interpretation of evidence;

   (g)   is kept separately from adults, if the trafficked person is a child; and

   (h)   is protected from any harm during residence at a shelter.

10.   Meetings of the Committee

   (1) The Committee shall hold meetings, at least once every three months, at a place and time to be determined by the Chairperson.

   (2) The quorum of a meeting of the Committee shall be constituted by at least half of its members.

   (3) The Chairperson shall convene and preside over meetings of the Committee.

   (4) In the absence of the Chairperson, the membership of the Committee shall elect a member present, to preside over the meeting.

   (5) At a meeting of the Committee—

   (a)   a matter for the decision of the Committee shall be decided by a majority of members present and voting; and

   (b)   the Chairperson or a person elected to act as such in the event of equality of votes, shall have a deliberative vote in addition to a casting vote.

11.   Allowances on Committee

   A member of the Committee shall be paid such allowances or other benefits as the Minister may approve, from time to time.

12.   Procedure

   The Committee shall determine the procedure for its meetings.

13.   Minutes of meetings

   The Committee shall cause to be kept minutes of proceedings of its meetings.

PART III
OFFENCES

14.   Trafficking in persons

   (1) A person who trafficks another person commits the offence termed trafficking in persons and shall, upon conviction, be liable to imprisonment for fourteen years without the option of a fine.

   (2) The consent of a trafficked person is immaterial, where any of the means set out in section 2 have been used.

15.   Trafficking in children

   (1) Notwithstanding section 14, a person who trafficks a child commits an offence termed trafficking in children and shall, upon conviction, be liable to imprisonment for twenty-one years without the option of a fine.

   (2) It is immaterial that at the time of commission of trafficking in children, the means set out in section 2, with respect to trafficking in persons were not used or that the child consented to the commission of the offence.

16.   Aggravated form of trafficking

   (1) An offence of trafficking in persons or trafficking in children is deemed to be aggravated if committed in any of the following circumstances—

   (a)   the judicial processes of adoption, fosterage, guardianship or wardship have been used to recruit a child;

   (b)   the accused is a relative of the trafficked person;

   (c)   the trafficked person is of unsound mind;

   (d)   the offence is committed by an organized criminal group;

   (e)   the offence is committed by a public servant, a religious leader, a traditional leader or any person acting in an official capacity in the exercise of his duties;

   (f)   the offence is committed by a person purporting to act, in the exercise of an official duty where such official acts in abuse of authority or moral ascendancy;

   (g)   the offence is committed for the purpose of removing body parts or extracting, tissue or organs; or

   (h)   as a consequence of the commission of the offence the trafficked person—

      (i)   dies;

      (ii)   develops a medical condition;

      (iii)   becomes pregnant or is forced to terminate a pregnancy;

      (iv)   suffers mutilation, disfigurement or permanent bodily injury; or

      (v)   is exposed to any other substantial health risk.

   (2) A person who commits the offence of trafficking in persons or trafficking in children in any of the circumstances in subsection (1), shall, upon conviction, be liable to imprisonment for life without the option of a fine.

17.   Trafficking in persons an offence involving dishonesty or moral turpitude

This section of the article is only available for our subscribers. Please click here to subscribe to a subscription plan to view this part of the article.