Savings and transitional

(1) Notwithstanding the repeal under section 54 of the Trafficking in Persons Act, 2003, any action taken or anything done in exercise of a power conferred by or under that Act shall be deemed to have been taken or done under this Act. (2) Regulations made under section 24 of the Trafficking in Persons Act' 2003 shall, in so far as they are not inconsistent with the provisions of this Act, continue in force as if made under section 52 of this Act. 44 SCHEDULE (Section 53) PROTOCOL TO PREVENT, SUPPRESS AND PUNISH TRAFFICKING IN PERSONS, ESPECIALLY WOMEN AND CHILDREN SUPPLEMENTING THE UNITED NATION CONVENTION AGAINST TRANSNATIONAL ORGANIZED CRIME Preamble The States Parties to this Protocol Declaring that effective action to prevent and combat trafficking in persons, especially women and children, requires a comprehensive international approach in the countries of origin, transit and destination that includes measures to prevent such trafficking, to punish the traffickers and to protect the victims of such trafficking, including by protecting their internationally recognized human rights. Taking into account the fact that, despite the existence of a variety of international instruments containing rules and practical measures to combat the exploitation of persons, especially women and children, there is no universal instrument that addresses all aspects of trafficking in persons, Concerned that, in the absence of such an instrument, persons who are able vulnerable to trafficking will not be sufficiently protected, Recalling General Assembly resolution 53/111 of 9 December 1998, in which the Assembly decided to establish an open-ended intergovernmental ad hoc committee for the purpose of elaborating a comprehensive international convention against transitional organized crime and of discussing the elaboration Trafficking In Persons (Prohibition) [CAP. 108:01 45 of, Inter alia, an international instrument addressing trafficking in women and children, Convinced that supplementing the United Nations Conventions against Transnational Organized Crime with an international instrument for the prevention, suppression and punishment of trafficking in persons, especially women and children, will be useful in preventing and combating that crime. Have agreed as follows, I. General Provisions Article 1 Relation with the United Nations Convention against Transitional Organized Crime 1. This Protocol supplements the United Nations Convention against Transitional Organized Crime. It shall be interpreted together with the Convention. 2. The provisions of the Convention shall apply mutatis mutandis, to this Protocol unless otherwise provided herein. 3. The offenses established in accordance with article 5 of this Protocol shall be regarded as offences established in accordance with the Convention. Article 2 Statement of Purpose The purposes of this Protocol are. 46 1. To prevent and combat trafficking in persons, paying particular attention to women and children; 2. To protect and assist the victims of such trafficking, with full respect for their human rights; and 3. To promote co-operation among States Parties in order to meet those objectives. Article 3 Use of Terms For the purposes of this Protocol: 1. “Trafficking in persons” shall mean the recruitment, transportation, transfer, harbouring or receipt of persons, by means of threat or use of force or other forms of coercion, of abduction, of fraud, of deception, of the abuse of power or of a position of vulnerability or of the giving or receiving of payments or benefits to achieve the consent of a person having control over another person, for the purpose of exploitation. Exploitation shall include, at a minimum the exploitation of the prostitution of others or other forms of sexual exploitation, forced labour or services, slavery or practices similar to slavery, servitude or the removal of organs; 2. The consent of a victim of trafficking in persons to the intended exploitation, set forth in subparagraph 1 of this article shall be irrelevant where any of the means set forth in subparagraph 1 have been use; 3. The recruitment, transportation, transfer, harbouring or receipt of child for the purposes of exploitation shall be considered “trafficking in persons” even if this does not involve any of the means set forth in subparagraph 1 of this article; Trafficking In Persons (Prohibition) [CAP. 108:01 47 4. “Child” shall mean any person under eighteen years of age. Article 4 Scope of Application This protocol shall apply, except as otherwise stated herein, to the prevention, investigation and prosecution of the offences established in accordance with article 5 of this Protocol, where those offenses are transnational in nature and involve an organized criminal group, as well as to the protection of victims of such offenses. Article 5 Criminalization 1. Each State Party shall adopt such legislative and other measures as may be necessary to establish as criminal offences the conduct set forth in article 3 Protocol, when committed intentionally. 2. Each State Party shall also adopt such legislative and other measures as may be necessary to establish as criminal offenses— (a) Subject to the basic concepts of its legal system, attempting to commit an offense established in accordance with paragraph 1 of this article; (b) Participating as an accomplice in an offence established in accordance with paragraph 1 of this article; and 48 (c) Organizing or directing other persons to commit an offence established in accordance with paragraph 1 of this article. II. Protection of Victims of Trafficking in Persons Article 6 Assistance to and Protection of Victims of Trafficking in Persons 1. In appropriate cases and to the extent possible under its domestic law, each State Party shall protect the privacy and identity of victims of trafficking in persons, including, inter alia, by making legal proceedings relating to such trafficking confidential. 2. Each State Party shall ensure that its domestic legal or administrative system contains measures that provide to victims of trafficking in persons, in appropriate cases, (a) Information on relevant court and administrative proceeding; (b) Assistance to enable their views and concerns to be presented and considered at appropriate stages of criminal proceedings against offenders, in a manner not prejudicial to the rights of the defence. 3. Each State Party shall consider implementing measures to provide for the physical, psychological and social recovery of victims of trafficking in persons, including, in appropriate cases, in co-operation with non-governmental organizations, other relevant organizations and other elements of civil society, and, in particular, the provision of, Trafficking In Persons (Prohibition) [CAP. 108:01 49 (a) Appropriate housing; (b) Counselling and information, in particular as regards their legal rights, in a language that victims of trafficking in person can understand; (c) Medical, psychological and material assistance; and (d) Employment, educational and training opportunities 4. Each State Party shall take into account, in applying the provisions of this article, the age, gender and special needs of victims of trafficking in persons, in particular the special needs of children, including appropriate housing, education and care 5. Each State Party shall endeavour to provide for the physical safety of victims trafficking in persons while they are within its territory 6. Each State Party shall ensure that its domestic legal system contains measures that offer victims of trafficking in persons the possibility of obtaining; compensation for damage suffered. 50 Article 7 Status of Victims of Trafficking in Person in receiving States 1. In addition to taking measures pursuant to article 6 of this Protocol, each State Party shall consider adopting legislative or other appropriate measures that permit victims of trafficking in persons to remain in its territory, temporarily or permanently, in appropriate cases. 2. In implementing the provision contained in paragraph 1 of this article, each State Party shall give appropriate consideration to humanitarian and compassionate factors. Article 8 Repatriation of Victims of Trafficking in Persons 1. The State Party of which a victim of trafficking in persons is a national or in which the person had the right of permanent residence at the time of entry into the territory of the receiving State Party shall facilitate and accept, with due regard for the safety of that person, the return of that person without undue or unreasonable delay. 2. When a State Party returns a victim of trafficking in persons to a State Party of which that person is a national or in which he or she had, at the time of entry into the territory of the receiving State Party, the right of permanent residence, such return shall be with due regard for the safety of that person and for the status of any legal proceedings related to the fact that the person is a victim of trafficking and shall preferably be voluntary. 3. At the request of a receiving State Party, a requested State Party shall, without undue or unreasonable delay, verify Trafficking In Persons (Prohibition) [CAP. 108:01 51 whether a person who is a victim of trafficking in persons is its national or had the right of permanent residence in its territory all the time of entry into the territory of the receiving State Party. 4. In order to facilitate the return of a victim of trafficking in persons who is without proper documentation, the State Party of which that person is a national or in which he or she had the right of permanent residence at the time of entry into the territory of the receiving State Party shall agree to issue, at the request of the receiving State Party, such travel documents or other authorization as may be necessary to enable the person to travel to and re-enter its territory. 5. This article shall be without prejudice to any right afforded to victims of trafficking in persons by any domestic law of the receiving State Party. 6. This article shall be without prejudice to any applicable bilateral or multilateral agreement or arrangement that governs, in whole or in part, the return of victims of trafficking in persons. III. Prevention, Co-operation and other Measures Article 9 Prevention of Trafficking in Persons 1. States Parties shall establish comprehensive policies, policies, programmes and other measures, (a) To prevent and (b) To protect victims of trafficking in persons, especially women and children, from revictimization. 52 2. States Parties shall endeavour to undertake measures such as research information and mass media campaigns and social and economic initiatives to prevent and combat trafficking in persons. 3. Policies programmes and other measures established in accordance with this article shall, as appropriate, include co- operation with non-governmental organizations, other relevant organizations and other elements of civil society. 4. States Parties shall take or strengthen measures, including through bilateral or multilateral co-operation, to alleviate the factors that make persons, especially women and children, vulnerable to trafficking, such as poverty, underdevelopment and lack of equal opportunity. 5. States Parties shall adopt or strengthen legislative or other measures, such as educational, social or cultural measures, including through bilateral and multilateral co-operation, to discourage the demand that fosters all forms of exploitation of persons, especially women and children that leads to trafficking. Article 10 Information Exchange and Training 1. Law enforcement, immigration or other relevant authorities of State Parties shall, as appropriate, co-operate with one another by exchanging information, in accordance with their domestic law, to enable them to determine, (a) Whether individuals crossing or attempting to cross an international border with travel documents belonging to other persons or without travel documents are perpetrators or victims of trafficking persons; Trafficking In Persons (Prohibition) [CAP. 108:01 53 (b) The types of travel document that individuals have used or attempted to use to cross an international border for the purpose of trafficking in persons; and (c) The means and methods used by organized criminal groups, for the purpose of trafficking in persons, including the recruitment and transportation of victims, routes and links between and among individuals and groups engaged in such trafficking, and possible measures for detecting them. 2. States Parties shall provide or strengthen training for law enforcement, immigration and other relevant officials in the prevention of trafficking in persons. The training should focus on methods used in preventing such trafficking, prosecuting the traffickers and protecting the rights of victims including protecting victims from the traffickers. The training should also take into account the need to consider human rights and child- and gender-sensitive issues and it should encourage co- operation with non-governmental organizations, other relevant organizations and other elements of civil society. 3. A State Party that receives information shall comply with any requests by the State Party that transmitted the information that places restrictions on its uses. 54 Article 11 Border Measures 1. Without prejudice to international commitments in relation to the free movement of people, States Parties shall strengthen, to the extent possible, such border controls as may be necessary to prevent and detect trafficking in persons. 2. Each State Party shall adopt legislative or other appropriate measures to prevent, to the extent possible, means of transport operated by commercial carriers from being used in commission of offenses established in accordance with article 5 of this Protocol. 3. Where appropriate, and without prejudice to applicable international conventions, such measures shall include establishing the obligation of commercial carriers, including any transportation company or the owner or operator of any means of transport, to ascertain that all passengers are in possession of the travel documents required for entry into the receiving State. 4. Each State Party shall take the necessary measures, in accordance with its domestic law, to provide for sanctions in cases of violation of the obligation set forth in paragraph 3 of this article. 5. Each State Party shall consider taking measures that permit, in accordance with its domestic law, the denial of entry or revocation of visas of persons implicated in the commission of offences established in accordance with this Protocol. 6. Without prejudice to article 27 of the Convention, State Parties shall consider strengthening co-operation among border control agencies by, inter alia, establishing and maintaining direct channels of communication. Trafficking In Persons (Prohibition) [CAP. 108:01 55 Article 12 Security and Control of Documents 1. Each State Part shall take such measures as may be necessary, within available means, (a) To ensure that travel or identity documents issued by it are of such quality that they cannot easily be misused and cannot readily be falsified or unlawfully altered, replicated or issued; and (b) To ensure the integrity and security of travel or identity documents issued by or on behalf of the State Party and to prevent their unlawful creation, issuance and use. Article 13 Legitimacy and Validity of Documents 1. At the request of another State Party, a State Party shall, in accordance with its domestic law, verify within a reasonable time the legitimacy and validity of travel or identify documents issued or purported to have been issued in its name suspected of being used for trafficking in persons. 56 IV. Final Provisions Article 14 Saving Clause 1. Nothing in this Protocol shall affect the rights, obligations and responsibilities of States and individuals under international law, including international humanitarian law and international human rights and, in particular to where applicable, the 1951 Convention and the 1967 Protocol relating to the Status of Refugees and the principle of non-refoulement as contained therein. 2. The measure set forth in this Protocol shall be interpreted and applied in a way that is not discriminatory to persons on the grounds that they are victims of trafficking in persons. The interpretation and application those measures shall be consistent with internationally recognized principles of non- discrimination. Article 15 Settlement of Disputes 1. States Parties shall endeavour to settle disputes concerning the interpretation or application of this Protocol through negotiation. 2. Any dispute between two or more States Parties concerning the interpretation or the application of this Protocol that cannot be settled through negotiation within a reasonable time shall, at the requests of one of those States Parties, be submitted to arbitration. If, six months after the date of the request for arbitration, those States Parties are unable to agree on the organization of the arbitration, any one of those States Trafficking In Persons (Prohibition) [CAP. 108:01 57 Parties may refer the dispute to the International Court of Justice by request in accordance with the Statute of the Court. 3. Each State Party may, at the time of signature, ratification, acceptance or approval of or accession to this Protocol, declare that it does not consider itself bound by paragraph 2 of this article. The other States Parties shall not be bound by paragraph 2 of this article with respect to any State Party that has made such a reservation. 4. Any State Party that has made a reservation in accordance with paragraph 3 of this article may at any time withdraw that reservation by notification to the Secretary- General of the United Nations. Article 16 Signature, Ratification, Acceptance, Approval and Accession 1. This Protocol shall be open to all States for signature from 12 to 15 December 2000 in Palermo, Italy and thereafter at United Nations Headquarters in New York until 12 December 2002. 2. This Protocol shall also be open for signature by regional economic integration organizations provided that at least one member State of such organization has signed this Protocol in accordance with paragraph 1 of this article. 3. This Protocol is subject to ratification, acceptance or approval. Instruments of ratification, acceptance or approval shall be deposited with the Secretary-General of the United Nations. A regional economic integration organization may deposit its instrument of ratification, acceptance or approval if at least one of its member States has done likewise. In that instrument of ratification acceptance or approval, such organization shall declare the extent of its competence with respect to the matters governed by this Protocol. Such organization shall also inform the depositary of any relevant modification in. the extent of its competence. 4. This Protocol is open for accession by any State or any regional economic integration organization of which at least one member State is a Party of this protocol. Instruments of accession shall be deposited with the Secretary-General of the United Nations. At the time of its accession, a regional economic integration organization shall declare the extent of its competence with respect to matters governed by this Protocol. Such organization shall also inform the depository of any relevant modification in the extent of its competence. Article 17 Entry into Force 1. This Protocol shall enter into force on the ninetieth day after the date of deposition of the fortieth instrument of ratification, acceptance, approval or accession, except that it shall not enter into force before the entry into force of the convention. For the purpose of this paragraph, any instrument deposited by a regional economic integration organization shall not be counted as additional to those deposited by member States of such organization. 2. For each State or regional economic integration organization ratifying accepting, approving or acceding to this Protocol after the deposit of fortieth instrument of such action, this Protocol shall enter into force on the thirtieth day after the date of deposit by such State or organization of the relevant Instrument or on the date this Protocol enters into force pursuant to paragraph 1 of this article, whichever is the later. Trafficking In Persons (Prohibition) [CAP. 108:01 59 Article 18 Amendment 1. After the expiry of five years from the entry into force of this Protocol, a State Party to the Protocol may propose an amendment and file it with the Secretary-General of the United Nations, who shall thereupon communicate, the proposed amendment to the States Parties and to the Conference of the Parties to the Convention for the purpose of considering and deciding on the proposal. The States Parties to this Protocol meeting at the Conference of the Parties shall make every effort to achieve consensus on each amendment. If all efforts at consensus have been exhausted and no agreement has been reached, the amendment shall, as a last resort, require for its adoption a two-thirds majority vote of the States Parties to this Protocol present and voting at the meeting of the Conference of the Parties. 2. Regional economic integration organizations, in matters within their competence, shall exercise their right to vote under this article with a number of votes equal to the number of their member States that are Parties to this Protocol. Such organizations shall not exercise their right to vote if their member States exercise theirs and vice versa. 3. An amendment adopted in accordance with paragraph 1 of this article is subject to ratification, acceptance or approval by States parties. 4. An amendment adopted in accordance with paragraph 1 of this article shall enter into force in respect of a State Party ninety days after the date of the deposit with the Secretary- General of the United Nations of an instrument of ratification, acceptance or approval or such amendment. 60 5. When an amendment enters into force, it shall be binding on those State Parties which have expressed their consent to be bound by it. Other State Parties shall still be bound by the provisions of this Protocol and any earlier amendments that they have ratified, accepted or approved. Article 19 Denunciation 1. A State Party may denounce this Protocol by written notification to the Secretary-General of the United Nations. Such denunciation shall become effective one year after the date of receipt of the notification by the Secretary-General. 2. A regional economic integration organization shall cease to be a party to this Protocol when all of its member States have denounced it. Article 20 Depositary and languages 1. The Secretary-General of the United Nations is designated depositary of this Protocol. 2. The original of this Protocol, of which the Arabic, Chinese, English, French, Russian and Spanish texts are equally authentic, shall be deposited with the Secretary-General of the United Nations In WITNESS WHEREOF, the undersigned plenipotentiaries, being duly authorized thereto by their respective Governments, have signed this protocol.