The efficacy of the legal, institutional and policy framework against trafficking of persons in Kenya: a critique

Abstract

Trafficking in persons (TIP) is a serious Crime that has attracted concerted global effort to combat. Characteristic of any developing country, Kenya is a major source and transit country for victims of TIP. This paper examines the efficacy of Kenya’s efforts to combat the crime. This is an investigative response to two major issues on the subject. Firstly, the study evaluates whether the legal, institutional and policy framework before and after the enactment of the Kenyan Counter Trafficking in Persons Act (CTPA) implements the Palermo Protocol to suppress Trafficking in Persons. Secondly, it seeks to examine efficacy of Kenya’s efforts on counter trafficking in comparison with experiences from other jurisdictions. The study concludes that though the legal, policy and institutional framework before and after CTPA implements the Palermo Protocol in several ways, it does not fully implement some aspects of the Protocol. In addition, the study finds that the Kenyan legal, policy and institutional framework falls short in several areas in comparison with the US and Nigerian frameworks which are considered a success story in the war against the crime of TIP. The study proposes reforms that would see the Kenyan framework improved to fully implement the Protocol. Three major recommendations for reform arise from the findings of the study. These are that Kenya should create stronger institutions, grant better victim protection and prosecute perpetrators and criminalize attempted TIP. The study also recommends incorporation of prevention mechanisms in the war against TIP. The study recommends that this can be done by amending CTPA. This paper draws on information from secondary sources such as books, journals, newspapers and published works on the World Wide Web in examining the relevant issues and arriving at the conclusion. This study is structured into five chapters. Chapter one gives background information that determines the context and scope of this study. It includes matters such as the research objectives, questions, hypothesis and literature review. Chapter two analyses the elements of TIP as defined by the Palermo Protocol and establish the Protocol’s requirements on each member state. Chapter three examines the existing legal, policy and institutional framework before and after enactment of CTPA in 2010. It further examines the challenges that existed before the enactment of the new direct law on TIP and the limitations in the said new law. Chapter four engages in a comparative analysis from US and Nigeria. It brings out aspects in the US and Nigerian legal, policy and institutional regimes that are not incorporated in the Kenyan law. Finally, chapter five is the concluding chapter. It deals with recommendations for the reform of the legal, policy and institutional framework in Kenya on counter TIP. In summary, the study discusses efforts by Kenya to combat TIP and how the efforts can be strengthened.