The government made uneven anti-trafficking law enforcement efforts and the human trafficking law lacks clarity in how it defines the crime. The 2011 Anti-Trafficking in Persons Act defines the term “trafficking” essentially in line with the 2000 UN TIP Protocol; however, it sets for the crime of trafficking without reference to that definition, describing trafficking as the acts of recruiting, transporting, transferring, harboring, providing or receiving a person “by any means” for the purpose of prostitution, pornography, sexual exploitation, forced labor, drug trafficking, slavery, involuntary servitude or debt bondage as well as for other ends, such as marriage with a foreign person, tourism packages for the purposes of sexual exploitation, adoptions or organ removal. While the acts and some of the purposes of the acts are similar to the definition of the 2000 UN TIP Protocol, that international law definition of trafficking turns on the use of means of force, fraud and coercion, whereas this law appears to criminalize as trafficking the use of any means for the listed purposes. The law prescribes penalties of up to 25 years imprisonment or a fine of one million maloti ($72,955) under section 5(1) for the trafficking of adults and up to life imprisonment or a fine of two million maloti ($145,911) under section 5(2) for the trafficking of children.
While the maximum sentence is sufficiently stringent and commensurate with penalties prescribed for other serious crimes such as rape, the option of paying a fine in lieu of imprisonment is not commensurate with the penalty for other serious offenses, such as rape. The definition of trafficking in the 2011 children’s protection and welfare act also requires the use of deception, threat, force, or other means of coercion for a child to be considered a trafficking victim. Section 67 of this act provides penalties of life imprisonment and a fine of up to 1 million maloti ($72,955) for child trafficking by false pretenses, fraud, or deceit. However, section 77 of the children’s welfare act prescribes penalties of a fine not to exceed 30,000 maloti ($2,188) or 30 months imprisonment or both. Allowing a fine in lieu of imprisonment does not provide an adequate deterrent to potential perpetrators of child sex trafficking. Persons who knowingly and unlawfully buy or engage the services of a trafficking victim are considered to have committed a trafficking offense with the same penalties. The government provided an increased penalty when a member of the police or military is convicted of engaging a person subjected to trafficking for the purposes of prostitution.
During the reporting period, the government initiated investigation of four cases of labor trafficking and one sex trafficking case and prosecuted six cases; two sex trafficking cases, and four labor trafficking cases, which were all tried under the anti-trafficking act. At the close of the previous reporting period, five prosecutions were pending. The government did not obtain convictions of any traffickers during the reporting period, as compared to the previous year, when there was one. The government investigated an immigration official for alleged complicity and collusion in forced labor crimes, for which the government prosecuted her husband during the reporting period. Many law enforcement officials reportedly had limited understanding of trafficking and how to protect victims from potential intimidation. The government did not address a jurisdictional issue impeding efforts to hold traffickers accountable: the magistrate courts, which are the court of first instance for trafficking cases, lack authority to impose the maximum penalties allowed in trafficking crimes. The primary magistrate responsible for hearing trafficking cases at the high court was transferred during the reporting period; two additional magistrates who were available to hear trafficking cases in the interim, however, lacked adequate experience and training to preside over such cases.